Court of Appeal
Published April 9, 2009
Hussain (Zakir) v Secretary of State for the Home Department
Before Lord Justice Sedley, Lord Justice Keene and Lady Justice Smith
Judgment January 19, 2009
Evasion of immigration controls for a long time was not in itself a reason for deciding that an applicant, unlawfully in the United Kingdom, should not be allowed to stay.
The Court of Appeal so held, allowing the appeal of the applicant, Zakir Hussain, against the dismissal of his appeal against the refusal by the Secretary of State for the Home Department to grant him leave to enter.
LORD JUSTICE SEDLEY said that the applicant, a national of Bangladesh, who was now aged 50 had entered this country in 1991 on a six-month visitor’s visa. He had been here ever since. He applied for indefinite leave to remain in June 2006 on the ground of long residence.
That was refused by the secretary of state and upheld on appeal by Immigration Judge Ferguson on February 12, 2008 in the Asylum and Immigration Tribunal. That decision was upheld by Senior Immigration Judge Chalkley on April 30, 2008.
Rule 276B (i)(b) of the Statement of Changes in Immigration Rules 1994 (HC 395), as inserted by the Statement of Changes in Immigration Rules 2003 (HC 538), was directed specifically to people who had managed to stay without lawful authority for 14 years or more. In effect it was an amnesty clause.
His Lordship considered that the immigration judge had lost sight of the fact that in this case the applicant had, as a result of 14 years’ unlawful residence during which he had maintained himself by working unlawfully, reached a point at which the Home Secretary’s own rules, which Parliament had approved, entitled him to remain, provided it was not undesirable in the public interest for him to be allowed to do so.The opening words of rule 276B placed a formal onus on the applicant under paragraph (ii) to show that there were no reasons which made it undesirable to grant him indefinite leave to remain.
Once the evidence on both sides had been heard, the practical question for the immigration judge was whether there were any reasons in the public interest why the applicant, despite his long evasion of immigration controls, should not be allowed to stay. It defeated the purpose of the rule to use the evasion itself as a reason.
Immigration judges should apply Aissaoui v Secretary of State for the Home Department ([2008] EWCA Civ 37). In future MO (Ghana) ([2007] UKAIT 00014) should not be cited, even as persuasive authority on rule 276B(i)(b) appeals.
An issue had arisen concerning the legal and evidential status on appeal of the directions the Home Office’s Immigration Directorate issued to its officials about the im-plementation of the rules in operation before the tribunal.
The question was what should happen when a discrepancy arose between the case being presented by the Home Office and a Home Office direction which was drawn to the tribunal’s attention. The proper course was not to introduce the material direction every time an issue arose as to the meaning or application of an immigration rule. But the presenting officer should be ready to explain to the tribunal any divergence between the presented case and any relevant direction to which the tribunal’s attention was drawn.
That was a reflection of the government’s legal obligation not to act inconsistently with its own policy unless there was some good reason for doing so: see British Oxygen Co Ltd v Board of Trade ([1971] AC 610). continues here
Published April 9, 2009
Hussain (Zakir) v Secretary of State for the Home Department
Before Lord Justice Sedley, Lord Justice Keene and Lady Justice Smith
Judgment January 19, 2009
Evasion of immigration controls for a long time was not in itself a reason for deciding that an applicant, unlawfully in the United Kingdom, should not be allowed to stay.
The Court of Appeal so held, allowing the appeal of the applicant, Zakir Hussain, against the dismissal of his appeal against the refusal by the Secretary of State for the Home Department to grant him leave to enter.
Rule 276B (i)(b) of the Statement of Changes in Immigration Rules 1994 (HC 395), as inserted by the Statement of Changes in Immigration Rules 2003 (HC 538), was directed specifically to people who had managed to stay without lawful authority for 14 years or more. In effect it was an amnesty clause.
Mr Zulqarnain Malik for the applicant; Mr Alan Payne for the Home Secretary.LORD JUSTICE SEDLEY said that the applicant, a national of Bangladesh, who was now aged 50 had entered this country in 1991 on a six-month visitor’s visa. He had been here ever since. He applied for indefinite leave to remain in June 2006 on the ground of long residence.
That was refused by the secretary of state and upheld on appeal by Immigration Judge Ferguson on February 12, 2008 in the Asylum and Immigration Tribunal. That decision was upheld by Senior Immigration Judge Chalkley on April 30, 2008.
Rule 276B (i)(b) of the Statement of Changes in Immigration Rules 1994 (HC 395), as inserted by the Statement of Changes in Immigration Rules 2003 (HC 538), was directed specifically to people who had managed to stay without lawful authority for 14 years or more. In effect it was an amnesty clause.
His Lordship considered that the immigration judge had lost sight of the fact that in this case the applicant had, as a result of 14 years’ unlawful residence during which he had maintained himself by working unlawfully, reached a point at which the Home Secretary’s own rules, which Parliament had approved, entitled him to remain, provided it was not undesirable in the public interest for him to be allowed to do so.The opening words of rule 276B placed a formal onus on the applicant under paragraph (ii) to show that there were no reasons which made it undesirable to grant him indefinite leave to remain.
Once the evidence on both sides had been heard, the practical question for the immigration judge was whether there were any reasons in the public interest why the applicant, despite his long evasion of immigration controls, should not be allowed to stay. It defeated the purpose of the rule to use the evasion itself as a reason.
Immigration judges should apply Aissaoui v Secretary of State for the Home Department ([2008] EWCA Civ 37). In future MO (Ghana) ([2007] UKAIT 00014) should not be cited, even as persuasive authority on rule 276B(i)(b) appeals.
An issue had arisen concerning the legal and evidential status on appeal of the directions the Home Office’s Immigration Directorate issued to its officials about the im-plementation of the rules in operation before the tribunal.
The question was what should happen when a discrepancy arose between the case being presented by the Home Office and a Home Office direction which was drawn to the tribunal’s attention. The proper course was not to introduce the material direction every time an issue arose as to the meaning or application of an immigration rule. But the presenting officer should be ready to explain to the tribunal any divergence between the presented case and any relevant direction to which the tribunal’s attention was drawn.
That was a reflection of the government’s legal obligation not to act inconsistently with its own policy unless there was some good reason for doing so: see British Oxygen Co Ltd v Board of Trade ([1971] AC 610). continues here
So there you have it, proof positive if any were needed that the state do not look out for our welfare, prove again that the judiciary work against it and now the knowledge that should an immigrant evade the authorities for fourteen years then they are free. Perhaps therefore it is only a game, an amusing cat and mouse escapade, that is if this reprehensible government, take action on the discovery of illegal status, all the evidence points to a distinct lack of action and we the taxpayer, the fools support it all.
Some live for the great awakening, they remain convinced, that the people will lurch from slumber, that the great anger of the people shall rumble forth, sweeping away corruption and this anti-indigenous state, I need more convincing, daily I see miscegenation, I see endless, endless non-whites and not even a glimmer of hope. I believe that the people are not asleep, that they never have been, I believe they have been engineered, cowed by fear and finally their sense of self destroyed, now what passes for the people is fractured, disjointed, egocentric and non conversant, permitting our grandchildren’s end.
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1 Responses to "Home Secretary bound by own immigration rules"9 April 2009 at 17:54
Sounds like similar problems to US where many mexican workers have been in the country for decades and what to do with them now?
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