Ali (M.M.H.) and Others v. Secretary of State for the Home Department

ALI (M.M.H.) AND ANOTHER v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/17164/77(1211)

Immigration Appeal Tribunal

[1978] Imm AR 126

Hearing Date: 4 May 1978

4 May 1978

Index Terms:

Deportation -- Consideration on the merits -- Entry separately as visitors by married couple -- Misrepresentation and concealment of material facts for purpose of entry -- Engagement in business in breach of conditions -- Refusal of couple's application to engage in business -- Overstaying and further breach after notification that must leave the country -- Children (two) born in this country and third expected shortly -- Whether decision to make deportation order justified -- Immigration Act 1971, s 3(5)(a) -- HC 80, paras 38, 42, 50.

Political asylum -- Kenyan citizens of Indian origin -- Claim for political asylum made on appeal against deportation order -- Engagement in business -- Whether discrimination against Kenyan citizens of Asian origin such as to justify a claim for political asylum -- Immigration Act 1971, s 3(5)(a) -- HC 80, para 50.

Held:

The appellants were a married couple, Kenyan citizens of Asian origin. In 1973 they entered the United Kingdom separately as visitors, and it was not later disputed that misrepresentations had been used and material facts had been concealed for the purpose of obtaining leave to enter. n1 Furthermore the first appellant had engaged in business in breach of his conditions of entry, and both husband and wife had overstayed after they had been notified they should leave the United Kingdom following the refusal of their application to remain here in business. On 18 April 1977 the Secretary of State decided to make deportation orders against them under s 3(5)(a) of the Immigration Act 1971 (for breach of conditions of entry and for persistent overstaying). n1 Contrary to para 12(a) of HC 79. On their appeals against the Secretary of State's decision the appellants did not give evidence, but it was contended for them that they should not be deported to Kenya because as persons of Indian extraction (albeit Kenyan citizens) they feared political and racial persecution n2. The Tribunal's attention was also drawn to the fact that two children had been born to the appellants in this country since 1973 and a third child was expected quite soon, and deportation would seriously affect the female appellant. On considering the appellants' deception on entry, overstaying and breaches of immigration rules, the Tribunal observed that even after being notified of the Secretary of State's decision to deport them, the male appellant had entered into an agreement to purchase another business -- up-to-date trading figures of that business had been produced. Held (dismissing the appeals): The Secretary of State was fully justified in deciding to deport the appellants under s 3(5)(a) of the Immigration Act 1971, because -- (i) in considering the compassionate circumstances, (a) whilst a policy of 'Africanisation' was being pursued by the Kenya Government, the appellants were far from showing that they had a "well-founded fear of being persecuted" if they returned to Kenya n2; (b) the second appellant's impending confinement was a matter to be taken into account by the Secretary of State only in deciding when to implement his decision to deport: n2 See under the heading "Political asylum" para 50 of HC 80, set out in footnote 7, post. (ii) the fact that the first appellant was still trading imposed no obligation, moral or legal, on the Secretary of State to allow him to stay and continue trading.

Counsel:

A. Klinger for the appellants. B. Hunter for the respondent. PANEL: P. N. Dalton Esq (Vice-President), Miss P. G. Liverman, Sir John Rankine

Judgment One:

THE TRIBUNAL: The appellants, Mr Murtaza M. H. Ali and his wife Mrs Sakinabai M. M. H. Ali, are citizens of Kenya. They are appealing against a decision of the Secretary of State to deport them by virtue of s 3(5)(a) of the Immigration Act 1971 and to give directions for their removal to Kenya. Mrs Ali arrived in the United Kingdom on 8 September 1973 in possession of a visitor entry clearance issued in Mombasa on 20 August 1973. She said that she intended to spend three months visiting her parents in London and then would return to Kenya where her husband was an auditor. She was granted leave to enter for three months. On 23 October 1973 Mr Ali arrived at Prestwick Airport in possession of a visitor entry clearance issued in Nairobi on 15 October 1973. He said he intended to spend one to two months visiting friends in Solihull, Warwickshire. He made no mention that his wife was in the United Kingdom and he was granted leave to enter for two months. The entry clearance officer who interviewed the second appellant on 20 August 1973 suspected that she was 4-5 months pregnant but she produced a letter dated 30 July 1973 from a qualified doctor, an obstetrician and gynaecologist, stating that there was no evidence of pregnancy. However, on 6 December 1973 one Reza Alidina wrote to the Home Office requesting an extension of stay on behalf of Mrs Ali, whom he said was his sister and who had just given birth to a premature baby at the South London Hospital, Clapham Common. No mention was made of her husband being in the United Kingdom, and her stay was extended to 16 February 1974. Mr Ali himself applied on 28 December 1973 for an extension of stay as his wife and given birth to a premature baby. His leave to enter was extended until 30 March 1974. On 30 July 1974 the Joint Council for the Welfare of Immigrants wrote to the Home Office requesting an extension of stay on behalf of the appellants and explaining that the appellants had overstayed owing to a misunderstanding between themselves (the JCWI) and the appellants. The JCWI stated they would forward evidence of the finances of the appellants; this was not done, and repeated requests by the Home Office for information and documentary evidence went unanswered. The Secretary of State was not satisfied that the appellants were genuine visitors who intended to leave the United Kingdom, and the application was refused on 6 February 1975. The appellants appealed on 20 February 1975 and stated in their grounds of appeal that they were planning to set up in business as newsagents and tobacconists, and that they did not wish to be returned to Kenya for fear of political and racial persecution because of their Indian extraction. The appellants' solicitors then applied for variation of the appellants' leave to enable them to set up in business and sent to the Home Office a copy of the lease and agreement for the purchase of the newsagents and tobacconist business, accounts for the business for the year ending 31 May 1974 and a bank statement showing that a balance of @ 4,711.46 was in the first appellant's account on 14 March 1975. The Home Office requested details of any persecution to which the appellants had been subjected and the solicitors replied that the first appellant's dismissal from his employment had occurred as a result of his employers' policy of 'Africanisation' and they added that the appellants feared that the policy of Africanisation "might develop to the level of persecution against the Asian minority similar to that which had occurred in Uganda and Zanzibar". The Secretary of State considered the appellants' proposed business venture on the facts before him but was not satisfied that the first appellant would be devoting assets of his own to the business proportional to his interest in it, nor that he would be able to bear his share of the liabilities that the business might incur, nor that his share of the profits would be sufficient to support him and his dependants. Nor was the Secretary of State satisfied that the appellants had a "well-founded fear of being persecuted", if they returned to Kenya, "for reasons of race, religion, nationality, membership of a particular social group or political opinion". n3 The appellants' application was refused on 28 August 1975 and the appellants appealed. n3 See para 50 of HC 80, which is set out in footnote 7, post. When the appeal came on for hearing on 7 June 1976, the adjudicator ruled that, following the Court of Appeal ruling in the case of Subramaniam n4, as their application for an extension had been made after the expiry of their leave to remain, he had no jurisdiction to hear the appeal. On 18 July 1976 the Home Office wrote to the appellants advising them that they had no claim to remain in the United Kingdom and should leave forthwith. The appellants however did not leave the United Kingdom and nothing further was heard from them. The Secretary of State therefore considered their position in the United Kingdom in the light of all the information before him and, for reasons which are set out in the explanatory statement, decided on 18 April 1977 to make the deportation order against which the appellants have now appealed. n4 R v Immigration Appeal Tribunal, ex p Subramaniam [1976] Imm A R 155; [1977] 1 QB 190; [1976] 3 All ER 604. The appellants were represented by Mr A. Klinger of Culross, Lipkin & Co., Solicitors, in their appeal before the adjudicator, Mr M. Patey. The respondent was represented by Mr Parsons. No witnesses were called to give evidence. Mr Patey set out the facts in his determination and after considering the submissions made to him by the parties' representatives concluded his determination by saying:

"I am fully satisfied that the two appellants severally obtained admission to this country in 1973 by misrepresentation and the witholding of material facts from both the respective entry clearance officers and also from the immigration officers who interviewed them separately on arrival. n5 It is not in dispute that the appellants have remained in this country without any lawful authority since the Chief Adjudicator ruled in June 1976 they they had no entitlement to appeal. It is also clear that the principal appellant negotiated the purchase of a DIY business and thereafter engaged in trade in contravention of a condition imposed upon him on entry. I appreciate that there is a discrimination against persons of Asian extraction regardless of nationality in East Africa generally. I cannot, however, accept that this discrimination is in Kenya of a degree which could properly be described as persecution. In these circumstances and after taking account of all the evidence before me I am satisfied that the respondent's decision is in accordance with the law and immigration rules and that the Secretary of State in reaching his decision exercised the discretion afforded him by the immigration rules correctly. Both appeals are therefore dismissed."

n5 Contrary to para 12(a) of HC 79. The appellants appealed to the Tribunal. In opening the appeal Mr Klinger said that the facts as previously put to Mr Patey had not materially altered. He then put in evidence a set of trading accounts, up to the present time, of the Home Stores. Documents were also produced showing that Mrs Ali is pregnant and is expecting the child about 2 July 1978. Mr Klinger did not dispute the adjudicator's finding that misrepresentation had occurred, but the male appellant had been told in Kenya that unless he said that he was single he would not be allowed into the United Kingdom. Mr Ali had come as a visitor, he had not come with a preconceived purpose of setting up in business but wanted to come here to have a look round and assess the business prospects. Mr Klinger argued that Mrs Ali had not intended to have the child that is coming, and a deportation order would seriously affect her. On the question of discrimination Mr Klinger argued that in Kenya the position of the Asian minority was prejudicial to the policy of Africanisation and Mr Ali had lost his job to an African he had been training. Mr Klinger oncluded by asking that the discretion be exercised in the appellants' favour and that they be allowed to remain in the United Kingdom for 2-3 years, so as to show they can make a success of their business. Two children have already been born in the United Kingdom and it would be a humane decision to allow the appellants to remain here on the terms suggested. Mr Hunter referred to the undisputed facts relating to the appellants' separate arrivals in this country and submitted that no reasonable person following the sequence of events could doubt that the appellants' firm intention from the outset was to settle in this country. We are in full agreement with this submission. Having obtained entrance the appellants have overstayed and ignored the Home Office letter of 18 July 1976 advising them that they had no claim to remain in the United Kingdom and should leave forthwith. Indeed, even after the decision to deport, made on 18 April 1977, was conveyed to them, the male appellant entered into an agreement on 5 May 1977 to purchase the Home Stores business. Up to date trading figures have been produced to us, but the fact that Mr Ali is still trading imposes no obligation, moral or legal, on the Secretary of State to allow him to stay and continue trading. In considering the compassionate circumstances, n6 whilst accepting that a policy of 'Africanisation' is being pursued by the Kenya Government, it is clear that the appellants are far from showing that they have a well founded fear of being persecuted if they return to Kenya (para 50 of HC 80) n7. We have considered the fact of Mrs Ali's impending confinement but this is a matter to be taken into account in deciding when to implement the decision to deport. n6 Paragraph 38 of HC 80 provides as follows: "In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects." And para 42 states that deportation will "normally be the proper course" where the person has "persistently contravened or failed to comply with a condition or has remained without authorisation". The paragraph requires, however, that "full account... be taken of all the relevant circumstances before a decision is reached". n7 Paragraph 50 of HC 80, under the heading "Political asylum", states that "A deportation order will not be made against a person if the only country to which he can be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular group or political opinion." And a footnote to the paragraph states that "The criterion for the grant of asylum is in accordance with Article 1 of the Convention Relating to the Status of Refugees (Cmd 9171)." In the Home Office explanatory statement, prepared for the appeal, reference was made to the Secretary of State's willingness to consider "any representations that the appellants be removed to a different country if they can show that the country in question is prepared to admit them on deportation from this country" (in accordance with the "arrangements for removal" set out in para 54 of HC 80); but the appellants, according to the explanatory statement, offered no evidence to show that another country would receive them on deportation from the United Kingdom. Looking at all the facts of this case, in our judgment the Secretary of State was fully justified in deciding to deport the appellants under s 3(5)(a) of the Immigration Act 1971 and the appeals of the two appellants are dismissed.

DISPOSITION:

Appeals dismissed.

SOLICITORS:

Culross, Lipkin & Co, London W1.

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