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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> MA (Illegal entrance, not para 395C) Bangladesh [2009] UKAIT 00039 (14 September 2009) URL: https://www.bailii.org/uk/cases/UKIAT/2009/00039.html Cite as: [2009] UKAIT 00039, [2009] UKAIT 39 |
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MA (Illegal entrance not para 395C) Bangladesh [2009] UKAIT 00039
Date of hearing: 7 August 2009
Date Determination notified: 14 September 2009
MA |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
Section 10 of the Immigration and Asylum Act 1999 has no application to an illegal entrant
to the United Kingdom and hence, as a consequence, neither does paragraph 395 of HC 395.
"27. As a starting point it is perhaps appropriate to address the concern expressed by Dr Chaudhry with regard to his reliance on paragraph 395(C). I have heard the representations on this aspect from both Dr Chaudhry and from Mr Burns, and I conclude that I agree with the interpretation of the Home Office. Dr Chaudhry contends that the wording on a Notice of Immigration Decision to be found on Form IS151B requires consideration of paragraph 395 and thereafter paragraph 364 of the Immigration Rules. In this case, I am quite satisfied that that is not the case. The wording grammar is of relevance. It states:
'Decision to remove an illegal entrant/person subject to administrative removal under Section 10 of the Immigration and Asylum Act 1999 Asylum/Human Rights Claim Refused.'
28. Dr Chaudhry submits that the reference to Section 10 of the Immigration Act and Asylum Act 1999 requires the Home Office to consider paragraph 395 of the Immigration Rules. The Home Office indicate that they do not agree and I support the Home Office contention. The Home Office case is based on the fact that there is a difference between taking relief pursuant to Section 10 on the grounds that the Appellant is an overstayer, as against the appellant being an illegal immigrant pursuant to Section 33 of the 1971 Immigration Act. Mr Burns submits, and I agree, that Section 395 does not apply if the appellant is an illegal entrant under the 1971 Act.
29. Much is placed by Dr Chaudhry on the fact that the above paragraph recites both reference to illegal entrant and a person subject to administrative removal under Section 10 in the same sentence. With respect to Dr Chaudhry's analysis, I prefer the interpretation as submitted by the Home Office, namely that that title an IS151B sets out the circumstances in the alternative and you have to look at the various type of removal that is sought. This is not a case for removal on the grounds that the appellant is an overstayer. This is a case for removal where the appellant is an illegal immigrant. The relevant law is Section 33 of the 1971 Act and I conclude that the Home Office are right in stating that para 395 considerations do not apply."
"On 29 October 2007 a decision was made to refuse to grant asylum under paragraph 336 of HC 395 (as amended), and on 29 October 2007 a decision was made to remove an illegal entrant from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971."
He argued that it was therefore the case that it was not a matter of removal by virtue of section 10, which did not apply to the appellant. The two documents should be read in concert. This was clearly a removal under the 1971 Act and not the 1999 Act. He made the further point that the appellant had never attended for interview and therefore it would have been impossible in any event, even if it were necessary to do so for the matter to be considered under paragraph 395C.
"Decision to remove an illegal entrant/person subject to administrative removal under Section 10 of the Immigration and Asylum Act 1999/Asylum/Human rights claim refused."
"10. Removal of certain persons unlawfully in the United Kingdom
(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
(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;
[(b) he uses deception in seeking (whether successfully or not) leave to remain;
(ba) his indefinite leave to enter or remain has been revoked under section 76(3) of the Nationality, Immigration and Asylum Act 2002 (person ceasing to be refugee);] or
(c) directions [ ] have been given for the removal, under this section, of a person [ ] to whose family he belongs.
"
"(a) shall not enter the United Kingdom unless given leave to do so in accordance with [the provisions of, or made under] this Act;"
An illegal entrant is defined at section 33(1) of the 1971 Act as meaning a person:
"(a) unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, or
(b) entering, or seeking to enter by means which include deception by another person,
and includes also a person who has entered as mentioned in paragraph (a) or (b) above;"
Such a person may be removed by way of directions under paragraphs 8 to 10 of Schedule 2 to the 1971 Act.
Signed
Senior Immigration Judge Allen