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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> SK (illegal entrant: leave to enter) Nigeria [2007] UKAIT 00003 (22 December 2006) URL: https://www.bailii.org/uk/cases/UKIAT/2007/00003.html Cite as: [2007] UKAIT 3, [2007] UKAIT 00003 |
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SK (illegal entrant: leave to enter) Nigeria
[2007] UKAIT 00003
Date of hearing: 24 October 2006
Date Determination notified: 22 December 2006
SK |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
A person who seeks leave to enter but then breaches the terms of his temporary admission may be treated as an illegal entrant, as Akhtar v Governor of Pentonville Prison [1993] Imm AR 424 and Afunyah v SSHD [1998] Imm AR 201 show. He is not, however, entitled to demand treatment as an illegal entrant. He can still be refused or given leave to enter (as distinct from leave to remain), and cannot demand to be considered as an illegal entrant for the purposes of deportation policies.
"[The appellant] came to the United Kingdom on 25 May 1995 and applied for asylum at Gatwick airport. His application for asylum was refused in 1997 and although he brought an appeal against that decision, we are advised that the appeal was also dismissed. Unfortunately, our client then [sic] absconded from reporting to the Immigration Service.
[The appellant] has continued to remain in the United Kingdom and is married to … a British citizen woman of Nigerian descent. They have been together since 1998 and married in October 2002. Clearly our client has an existing family life in the United Kingdom and on that basis we request that you regularise his status.
As you are no doubt aware, although our client has the right respect for his family life under Article 8(1) of the European Convention on Human Rights, that right is subject to limitations placed by Article 8(2). It is our submission that our client's removal from the United Kingdom would be disproportionate for the purposes of Article 8(2), and therefore the only proper decision to arrive at with regard to this application is to grant him leave to remain."
"Consideration has been given as to whether it would be right to allow him to enter exceptionally, outside of the Rules. This consideration has taken into account the United Kingdom's obligations under the European Convention on Human Right, as enshrined in the Human Rights Act 1998, with specific regard to Article 8 of the Convention."
"Careful consideration has been given as to whether your client should qualify for discretionary leave in the United Kingdom but he does not qualify for such leave."
"The evidence is that [she] was born here with Nigerian parents. She has lived inNigeria
for some time and went to school there. She still has family there. She has medical problems … . She says that these problems prevent her from conceiving the child that she and her husband badly want and that if he returns to
Nigeria
on his own they will have little chance of having a child. There is no evidence to indicate that the treatment [she] needs is not available in
Nigeria
, or indeed of what her current medical condition is. No evidence was produced, apart from the medical evidence and the fact that she would not have a job in
Nigeria to show that it would be unreasonable to expect [her] to return with her husband."
"The Grounds contend with arguable merit that the decision complained of was in the wrong form and for that reason alone the decision was contrary to law. In that regard, reconsideration was ordered.
I see no merit in the Immigration Judge's approach to the applicability of DP3/96. He decided for good reason that the appellant could not possibly come within the scope of the policy and was entitled to so conclude on the facts as he found them.
For these reasons, the Grounds that challenge the Immigration Judge's Article ECHR findings are misconceived."
"3(1) Except as otherwise provided by or under this Act, where a person is not a British citizen:-
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited period or for an indefinite period;
… ."
Section 4 of the same Act is headed "Administration of Control" and provides in s1 that "the power under this Act to give or refuse leave to enter the United Kingdom should be exercised by Immigration Officers". Section 3A of the same Act, headed "Further Provision as to Leave to Enter", provides, so far as relevant, as follows:
"(1) The Secretary of State may by order make further provision with respect to the giving, refusing or varying of leave to enter the United Kingdom
…
(7) The Secretary of State may, in such circumstances as may be prescribed in an order made by him, give or refuse leave to enter the United Kingdom.
…
(12) An order under this Section must be made by Statutory Instrument."
The Immigration (Leave to Enter) Order 2001 (SI 2590/2001) provides in part as follows:
"2(1) Where this Article applies to a person, the Secretary of State may give or refuse him leave to enter the United Kingdom.
(2) This Article applies to a person who seeks leave to enter the United Kingdom and who -
(a) has made a claim for asylum; or
(b) has made a claim that it would be contrary to the United Kingdom's obligations under the Human Rights Convention for him to be removed from, or required to leave, the United Kingdom.
(3) This Article also applies to a person who seeks leave to enter the United Kingdom for a purpose not covered by the Immigration Rules or otherwise on the grounds that those Rules should be departed from in his case.
… ."
"The first point depends primarily on s11 of the Immigration Act 1971, and the curious position of a person who has been temporarily admitted to this country subject to conditions. Such a person enters the country physically but is deemed not to so for immigration purposes. So long as he obeys the conditions he is not an illegal entrant; indeed he is not an entrant at all. But his right to be here is conditional, and a breach of conditions, in my view, destroys the statutory presumption that such a person has not physically entered. That in turn has the result that he has entered at a time when he has not received leave to do so, and in those circumstances, as I understand the Act, he becomes an illegal entrant within the meaning of the Act and liable to be treated as such".
"I admit to some reservations and express no concluded opinion. If it is correct that the detention is justified on this ground, it follows that persons who are granted temporary admission become illegal immigrants on breach of any restriction and, by virtue of that failure to comply with the restrictions, liable to detention and even to removal from this country, even if the failure was accidental or was temporary or even due to circumstances beyond their control."
"The Court of Appeal found that the Secretary of State was not obliged to treat the appellant who had absconded from temporary admission as an illegal entrant where she had previously been refused entry. I do not understand there to have been any fresh refusal of entry in the Afunyah case (or at least none is referred to); rather it appears to be a case of removal directions being given based on the original refusal of entry. The case, therefore, sheds no light, in my submission, on whether an illegal entrant can, subsequent to entry, be refused entry.
I have to accept, based on Afunyah, that in principle the Secretary of State has power to give removal directions based on a refusal of entry from some time past. Whether it would be right to do so in the particular circumstances of any case, is a different matter, and one that the Tribunal is not concerned with; the giving of removal directions is not an appealable immigration decision. The appellant maintains that he cannot be the subject of a refusal of entry once he has entered the UK"
"It is entirely plain that if this applicant were in the position to insist the Secretary of State treated her as an illegal entrant so that policy DP2/93 might be applied to her she would be building rights on an edifice consisting of nothing but her own wrongdoing. I do not think that is the law. The Secretary of State was entitled to treat this case as a port refusal case which in substance it was."
"In this case the applicant was a person seeking leave to enter and was so treated by the Secretary of State. That being so policy DP2/93 does not apply. The fact that also in law she was an illegal entrant does not make the policy apply. The policy only applies when action is taken against an illegal entrant as an illegal entrant."
C M G OCKELTON
DEPUTY PRESIDENT
Date: