Ali v. Secretary of State for the Home Department

ALI v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1994] Imm AR 489

Hearing Date: 10 June 1994

10 June 1994

Index Terms:

Illegal entrant -- leave to enter secured by use of false British passport -- applicant would have enjoyed benefit of earlier concessionary policy on long residence -- outwith terms of later policy operative when applicant's circumstances considered -- whether applicant had secured quasi-rights under earlier policy -- whether visits often months or thereabouts abroad broke continuous residence -- whether use of "continuous" and "continual" in policy statements indicated any significant difference -- child of relationship -- no evidence of contact between child and applicant -- whether Secretary of State had overlooked a relevant factor in his decision to remove the applicant from the United Kingdom. Immigration Act 1971 sch 3 para 9.

Held:

Renewed application for leave to move for judicial review following refusal by Hutchison J. The applicant was a citizen of Bangladesh whom the Secretary of State had decided to remove from the United Kingdom as an illegal entrant: he had secured leave to enter by using a false British passport in 1973. If the applicant had applied to have his status regularised when the first "long residence" concession had been guiding the Home Secretary, the applicant would have benefited from its terms. When however his position became known to the Secretary of State a later policy had been adopted and the applicant was outwith its provisions, for by then he had made journeys back to Bangladesh of 10 months or more and, in the view of the Secretary of State, had thus broken his period of continuous residence. Before the court it was argued that the applicant had acquired quasi-rights under the earlier concessionary policy which survived its revision. The periods spent abroad were not sufficient to break the applicant's continuous residence in the United Kingdom. A subtle distinction was to be drawn between references to "continuous residence" and "continual residence". Finally, (a point not raised before Hutchison J) the applicant had a daughter by a relationship with a British citizen, and the Secretary of State, in reviewing the case had failed to take that matter into consideration. Held 1. The applicant acquired no quasi-rights from the earlier concessionary policy. 2. The periods spent abroad were sufficient to break the applicant's period of continuous residence. 3. No significant distinction could be drawn, in the context, between "continuous residence" and "continual residence". 4. There was no evidence of regular contact between the applicant and his daughter and the Secretary of State's decision, in the light of that matter could not be held to be Wednesbury unreasonable.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Akin Ali [1993] Imm AR 610.

Counsel:

J Platts-Mill QC and M Azhar for the applicant; M Gill for the respondent PANEL: Balcombe, Hirst, Hoffmann LJJ

Judgment One:

HIRST LJ: This is a renewed application by the applicant in the present case, Mr Akin Ali, for judicial review of the decision of the Secretary of State communicated by letter dated 3 June 1993, to recommend his removal from the United Kingdom or to have him removed from the United Kingdom. That letter was in response to an application on his behalf by his solicitors dated 22 November 1991, followed up by some other letters, in which the Secretary of State stated that: "Mr Ali has been served with notice of illegal entry as he has admitted gaining entry to the United Kingdom in September 1973 using a British passport to which he was not entitled. He has subsequently continued to use this identity and has used the false British passport to travel back to Bangladesh on at least three separate occasions, the last being in 1990. It is the normal practice to remove those persons found to have entered the United Kingdom unlawfully unless there are reasons, usually of an exceptional compassionate nature, not to do so in a particular case. Under present policy a person who has achieved continuous lawful residence here of 10 years or more is considered to have established a prima facie claim to settlement. However only where a person has lived here for 14 years or more unlawfully will the grant of indefinite leave to remain normally be appropriate, provided there are no countervailing factors which would militate against such a course of action. In Mr Ali's case, the evidence provided by his representatives does not conclusively show continuous residence for the last 14 years. Furthermore, Mr Ali established very few ties with the United Kingdom until relatively recently, in 1991, when he entered into partnership of a take-away restaurant. He also now owns a property which he rents out. However, his wife and two children live in Bangladesh where he has spent lengthy holidays in recent years. Mr Ali's case has been reviewed carefully in the light of your representations but I do not feel that his circumstances warrant reversing our decision and allowing him to remain. Accordingly, arrangements for Mr Ali's removal to Bangladesh as an illegal entrant will proceed." The history of the matter put quite briefly is this: it is common ground that the applicant was an illegal entrant in about 1973, having become possessed of a British passport in the name of "Akin Ali" which belonged to someone else, and it was that passport which he made use of in order to enter the United Kingdom, assuming the identity of the named person on that passport when he came to this country. He remained here until 1985, without leaving the country, under that name, and, indeed, that is the name under which he goes at the present time. In 1985, having occupied the intervening twelve years working hard, mainly in the restaurant business, sometimes as a partner, but latterly as an employee, he went back to Bangladesh and got married. He then spent in Bangladesh the periods from 18 November 1985 to October 1986, from November 1987 to October 1988 and from December 1989 to September 1990. To summarise, having lived here continuously without a break for about twelve years, from November 1985, through to 1990, he spent a total of some two years eight months in all those three separate periods of either ten or eleven months in Bangladesh, living with his wife and latterly with his two children, who are now aged five and three. The restaurant businesses in which he worked are summarised in his affidavit. There is no doubt that when he has been here he has had steady employment in those businesses. It is not necessary to go into great detail, but just so that his case can be fairly understood, he was self-employed as a partner in a restaurant business from 1977 to 1984, having worked in a large number of restaurants for the first four years, which were all in the Liverpool area of the north-west. From 1980 to 1983 he ran another business in Liverpool. Then, for about eighteen months, from 1984 to November 1985, he was manager of a restaurant in West Kirby, Merseyside. There then followed the first visit to Bangladesh for eleven months. He came back in November 1986 and was manager of the same restaurant, called the Royal Bengal Restaurant at West Kirby, Merseyside, and then from June to October 1987 he was for a short period manager of another restaurant in Birkenhead. Then followed the second visit to Bangladesh, which lasted eleven months. He returned from that and from September 1988 to December 1989, some fourteen months, he was a waiter in a restaurant in York. That was then followed by the third ten-month visit to Bangladesh. When he came back from that he returned again as manager of the Royal Bengal Restaurant for a short period of under a month, followed by a period of almost a year with a Birkenhead restaurant, the Manzil Restaurant, which he had been with earlier in 1987. Finally, he has been a partner between September 1991 up to 1993 in two Indian restaurant businesses. The Home Office has issued a number of policy statements relating to persons in the position of the applicant, which are important, and which I read in chronological order. First of all, there was a statement in the House of Commons by Mr Waddington, the then Home Secretary, in answer to a Parliamentary question in 1985, when he said as follows: "The immigration rules provide that in deciding whether to deport an overstayer, full account is to be taken of all the relevant circumstances, with the public interest being balanced against any compassionate factors, including length of residence . . . Continuous unlawful residence in the United Kingdom amounting to 10 or more years is considered a prima facie reason for allowing a person to remain. Account is also taken of any countervailing factors, such as criminal record. Each case is considered on its merits." Then two years later in 1987 in another statement in the House of Commons in answer to a Parliamentary question, Mr Renton on behalf of the Home Office stated: "We have recently reviewed our policy on the exercise of discretion to grant leave to remain after lengthy residence in the United Kingdom. Except where the grant of leave would not be in the public interest, a case in which continuous residence exceeds 10 years will be considered on its merits for the grant of indefinite leave to remain. Among the factors to be taken into account are the strength of ties with the United Kingdom and elsewhere, the total length of continual residence and the proportion of it which has been lawful." There is then a reference to certain matters set out in the immigration rules. Finally, there was a statement of policy, which followed a little under a month later after the one I have just read which was set out in a letter from Mr Renton to a number of Members of Parliament. This is the one which is invoked in the Home Office's letter of 3 June 1993 which I quoted. That statement reads as follows: "I recently reviewed how we should approach cases of long residence bearing this principle in mind and also the fact that lengthy residence is but one of the factors to be taken into account when a case is reviewed, I have decided that, first and foremost, we must continue to consider each case on its merits. When doing so, however, our approach should be that where a person has 10 years or more continuous lawful residence, or 14 years or more continuous residence (of any legality) indefinite leave to remain should normally be granted in the absence of strong countervailing factors. In all other cases of long residence, the strength of ties with the United Kingdom, the length of total continuous period in the United Kingdom and the proportion of it which is lawful will be the primary determining factors when deciding to grant or withhold leave to remain." Hutchison, J at page 6 F of his judgment interpreted that final statement in the light of the previous two statements as follows in a manner which, in my judgment, was quite correct. He said this: "So it seems clear from that that Mr Waddington's 10 years' continuous residence has been raised to 14 years' continuous residence in the case of those not lawfully present here, and that, one takes it, obtained from 1987 or thereabouts." Mr Platts-Mills on behalf of the applicant takes a number of points, as follows. Firstly, he submits that, looking at the policy document now in force, after ten years' residence, as Mr Platts-Mills vividly put it, he has done his job. In other words he has acquired some sort of quasi-right to remain once that period had expired, as a result of which, whenever his status was finally called into question, whether after ten or eleven or twelve or fourteen years or whatever period thereafter, he had a quasi-right to stay and, therefore, should be allowed to stay. He submits that in consequence, the Home Secretary's decision was wrong and inconsistent with the policy, a fortiori in the light of the pre-1987 policy when the ten year period had been that which was applicable. That argument was dealt with by the learned judge as follows: "A central pillar of Mr Platts-Mills' arguments involved that [it does not matter he did not apply in 1985] because he had acquired some sort of status on the basis of his legitimate expectation based on the policy statement then obtaining, which, as it were, could not be taken away from him either by subsequent changes in policy or by subsequent absences from the United Kingdom breaking the continuity of his residence here, if that is what happened. I am afraid I feel obliged to reject that argument because I accept Mr Gill's submission that the whole thrust of the policy is that it is directed to the consideration of applications to remain, not to granting people some sort of informal status which they can acquire and rely upon without declaring themselves, or seeking to regularise their position. So the main plank of Mr Platts-Mills' argument I am afraid does [not] avail him." That conclusion of the learned judge is attacked by Mr Platts-Mills, but in my judgment, the learned judge's approach in that passage was absolutely correct. On the proper construction of the policy there is in my judgment no quasi-right of the kind asserted by Mr Platts-Mills which the applicant could have acquired. The correct moment at which to judge the continuous period is the moment when the applicant's status is called in question. That is in the present case once the solicitors' letter had been written in 1991, which led up to the decision in 1993. It is very important to bear in mind that we, sitting here and the learned judge sitting below, are not courts of appeal against the Secretary of State's decision. Here, the sole question is whether that decision was unlawful or perverse on Wednesbury principles. Applying the test laid down, that is of continuous fourteen years' residence, it seems to me that, as the learned Judge held, it was fully open to the Secretary of State to conclude that the three absences of ten months or more, aggregating two years and eight months in all during the final five years of his total period of residence here, rendered that residence not continuous. Judging the matter as it was correct to do from the period from 1991 onwards, when his status had been called into question, it follows that I would reject the main point which Mr Platts-Mills advanced on behalf of the applicant. There were a number of other connected points which 1 now proceed to consider. Firstly, Mr Platts-Mills takes exception to the fact that two successive policy statements -- that is the second and the third -- were issued within a period of less than a month or so. He sees fit to categorise that as a muddle or a state of uncertainty and inconsistency, and says that hospitality in this country, as he put it, "requires better manners". In my judgment, there is a basic fallacy in that argument. All we have here are two statements in which the second revises, as the Secretary of State was perfectly entitled to do, the policy laid down in the former. But even if there was something in that argument as my lord, Balcombe LJ pointed out in argument, it is quite irrelevant when, five or more years later, it fell to the Secretary of State to assess the question whether there was continuous residence, applying by then a policy which had been in force for several years. Mr Platts-Mills then seeks to put forward a suggestion that the use of the word "continual" in the second of the three statements had some subtle difference from the word "continuous", on the footing, as he suggested, that continual meant "off and on" and, therefore, would embrace a situation such as the present when there were absences in Bangladesh of the kind I have described. In my judgment that is simply a play on words and I can see no special characteristic of the word "continual" which in any way distinguishes it from "continuous". That would have disposed completely of this renewed application but for a new point which Mr Platts-Mills raised, which arises out of further submissions made to the Home Office. This started with an affidavit which is to be found on page 86 of the bundle, which was sworn on 20 September 1993, in other words, two months after Hutchison J's judgment, in which the applicant swore as follows: "2. In about 1979, I met an English girl named Frances. For 4 years we worked together in my restaurant. We became good friends and eventually fell in love . . . 3. On 23 September 1980 [after we had lived together as common law husband and wife] a daughter Anwara Ali was born to us in Liverpool and the birth was registered by us with the Metropolitan District of Liverpool . . . 4. My relationship with Frances ended following my marriage in Bangladesh to Shahana Begum on 5 May 1986. 5. I do contribute towards the support of Anwara as and when I am able and I will continue to do so. I am advised and do believe that she has a right of abode in the United Kingdom." He then says: "7. I did not disclose these facts to my solicitors until now as I felt that having an unmarried wife and illegitimate child was so out of keeping with the English way of life to which I had become accustomed in the last 20 years that I was too shy to tell them. They at once advised me to make full disclosure of this and I have attempted to do so herein." That affidavit was submitted to the Home Office under cover of a letter from the applicant's solicitors and the Home Office responded by a letter on 20 October 1993 which is at page 94 of the bundle. It acknowledges the information and then says: "Anwara has the right of abode here and it is claimed that Mr Ali should be allowed to remain in the United Kingdom in order that he can continue to fulfil his parental responsibilities. However the fact that he has been unable to furnish us with an address at which we can contact his ex-partner to confirm the extent of his involvement with Anwara inevitably casts doubts on whether he has been a meaningful presence in his daughter's life. In the circumstances it remains our intention to remove Mr Ali to Bangladesh as an illegal entrant, in the event that his application to the Court of Appeal fails." In response to that, Mr Platts-Mills has this morning submitted to the court, which we accepted de bene esse, an unsworn affidavit by Mr Ali; the reason why it has not been sworn having been explained by Mr Platts-Mills. What he says about this is as follows: "4. There are now produced and shown to me photocopies of the cheque and money orders payable to my daughter for October and for Christmas of 1993 and for March 1994 together with a Christmas Card and letter from my daughter . . . 5. There is also produced and shown to me a photocopy of a letter from Francis [sic] to me telling me of a new address to which I could send money to [my daughter] . . . Francis has often sent notes of different addresses to which I could send money. 6. When I came back in 1986, [Frances] was having financial difficulties. She asked me not to send a cheque from myself because the person she was living with would be annoyed, so I went to a friend and he gave me a cheque. I gave him cash and sent his cheque by post to her. 7. Several years passed and regularly since my return from Bangladesh in 1986, [Frances] and I discussed money matters over the telephone. When she needed money, she telephone me with an address to which I could send money to her, which I then did. She gave me two addresses different to the address to which I sent money regularly." Taking all that information into account, in my judgment, all that it shows is that the applicant has accepted, at any rate some of the time, and perhaps for all the time since the child was born, although that is not clear from the affidavit, a financial obligation to maintain her. But there is not a shred of evidence of any kind of regular contact with the child or, to use the apt words in the Home Office letter of October 1993, "of a meaningful presence on the part of the applicant in his daughter's life". Mr Platts-Mills says that that is not his fault because Frances would not let him see her. But the reasons for there being no regular contact are irrelevant. The fact is that there has been no regular contact, and in my judgment, assuming for present purposes (since this is a renewed application) that it is proper for us to take this further evidence and information into account, in my judgment it in no way establishes some kind of new and different case which could possibly be said to render the Home Office's further indication in the letter of October 1993 in any shape or form Wednesbury unreasonable. As I say, we have taken that into account because it is right that in a matter of this kind the applicant should know that all possible points upon which he seeks to rely have been considered by the court. For all these reasons, I would dismiss this application.

Judgment Two:

HOFFMANN LJ: I agree.

Judgment Three:

BALCOMBE LJ: I too agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Hafiz & Co, London SW17; Treasury Solicitor.