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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> CD (s.10 curtailment: right of appeal) India [2008] UKAIT 00055 (01 May 2008) URL: https://www.bailii.org/uk/cases/UKIAT/2008/00055.html Cite as: [2008] UKAIT 00055, [2008] UKAIT 55 |
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CD (s. 10 curtailment: right of appeal) India [2008] UKAIT 00055
Date of hearing: 4 April 2008
Date Determination notified: 01 May 2008
CD |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
A decision under section 10 of the Immigration and Asylum Act 1999 that involves the invalidation of any leave to enter or remain is to be treated for the purposes of the 2002 Act as a curtailment of that leave within section 82(2)(e), with the result that a person may appeal against that decision whilst he is in the United Kingdom, whether or not he has made an asylum claim or a human rights claim.
"As part of an application for leave to remain as a student signed by on you on 21 February 2007 you submitted a letter of enrolment from Lloyds College dated 21 February 2007 stating that you had enrolled for a BBA Accounting and Finance course commencing on 16 January 2006 until January 2009. We are aware from our own enquiries that Lloyds College is not, and never has been, a bona fide educational establishment and that it is reasonable to believe that this would have been known to any person claiming to have studied or enrolled there.
Therefore, we are satisfied, on the basis of the evidence available, that you have obtained leave to remain in the United Kingdom by means of deception.
A decision has also been taken to remove you and spouse [sic] from the United Kingdom pursuant to powers contained in Section 10(1)(b) of the Immigration and Asylum Act 1999. Enclosed are forms IS151A which sets out [sic] your immigration status and liability to detention. You may appeal against the decision to remove you and your spouse under Section 82 of the Nationality, Immigration and Asylum Act 2002 from abroad, on the basis of one or more of the grounds of appeal contained within form IS151A Part 2 Notice of Decision, attached. In accordance with Section 10(8) of that Act, this decision invalidates any leave to enter or remain in the United Kingdom that you and your spouse have been granted. You and your spouse may wish to take note of the conditions of the 'One-Stop' procedure set out in form IS75 and complete and return IS76 if appropriate. Both forms are attached.
You and your spouse now have no basis of stay in the United Kingdom, and should make arrangements to leave the United Kingdom without delay. If you and your spouse do not depart voluntarily, directions for your removal may be made."
"(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an Immigration Officer, if –
…
(b) he uses deception in seeking (whether successfully or not) leave to remain.
(8) When a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him."
"9. It seems to me to be not only draconian but plainly wrong on the part of the respondent to suggest that the appellant obtained leave to remain by means of deception. I reached that conclusion on the basis of the evidence before me that, in February 2007 and at the time of the appellant's last application for leave (21.2.08), Lloyds College was indeed on the DfES register being given the number 21933 (A15, respondent's bundle). The respondent is wrong to say that Lloyds College 'never has been a bona fide educational establishment…' It seems little short of astonishing that the respondent would seek to apply such legislation to a student with an exemplary past record who has fallen foul of a failing College. If the respondent had taken the time to research the facts she would have discovered that Lloyds College was on the register certainly in February 2007 when [the appellant] last applied – indeed the evidence was in the respondent's bundle."
"(2) In this Part 'immigration decision' means –
…
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain;
…
(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c.33) (removal of person unlawfully in United Kingdom)".
"(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.
(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f), (ha) and (j).
…
(4) This section also applies to an appeal against an immigration decision if the appellant –
(a) has made an asylum claim, or a human rights claim, while in the United Kingdom, or
(b) is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom."
"'asylum claim' means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or to require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention,
…
'human rights claim' means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c.42) (public authority not to act contrary to Convention) as being incompatible with his Convention rights."
"As the Tribunal pointed out in SS & Others Turkey [2006] UKAIT 00074, the requirement that the claim be made to the Secretary of State means that if the only claim is in grounds of appeal, the requirements of s113 are met if the appeal was to an Adjudicator before 4 [April] 2005 because the appeals process was then that an in-country appeal had to be lodged with the Secretary of State. A claim made only in grounds of appeal to this Tribunal, however, is not lodged with the Secretary of State and cannot therefore meet the requirements of s113."
"(i) on any of the grounds set out in paragraph 322(2)–(5) above; or
(ii) if he ceases to meet the requirements of the Rules under which his leave to enter or remain was granted."
"(2) the making of false representations or the failure to disclose any material fact for the purpose of obtaining leave to enter or a previous variation of leave.
(3) failure to comply with any conditions attached to the grant of leave to enter or remain."
Signed
Senior Immigration Judge P R Lane