CW (Malaysia) v Secretary of State for the Home Department

This is an application for permission to appeal against a decision of the Asylum and  Immigration Tribunal dated 28 February 2007. The applicant, CW, is a citizen of Malaysia. He came to the United Kingdom on 29 April 1988 as a visitor. He remained beyond the period of the leave. He married in 1991 and was divorced in 1996. His wife returned to Malaysia as did the children of the family. In 1998 he was arrested as part of an investigation into alleged wages irregularities at the restaurant where he was working. In 2002 he applied for leave to remain in the United Kingdom on the basis that he had been here for 14 years. That application was refused on 2 May 2006. He appealed to an immigration judge who dismissed the appeal on 19 July 2006. A senior immigration judge on 7 September 2006 ordered reconsideration. The tribunal considered whether the immigration judge on 19 July 2006 had made an error of law. A further material fact is that on 5 October 1998 notice was given to the applicant of intention to remove him as an illegal entrant.

Reliance had been placed on the rules. The application is now made on the basis that there is a breach of Article 8 of the Convention in requiring removal. It is submitted that the length of presence and the time it took to deal with the application to stay are remarkable features of this case. There has, it is submitted, been an acquiescence by the authorities in the presence of the applicant in this country, which bears upon the Article 8 application. There was an eight-year gap between the notice of 1998 and enforcement action.

The second submission is that since the decision of the House of Lords in Huang v SSHD [2007] UKHL 11 reconsideration is required; the immigration judge, upheld by the tribunal, on several occasions in his determination referred to the exceptionality test which, as formerly understood, is now discredited. That amounts, it is submitted, to an error of law and reliance is placed on the decision of this case in JN (Uganda) v SSHD [2007] EWCA Civil 802.

Thus reliance is placed on the delay in dealing with the application. It bears upon the merits of the Article 8 application, it is submitted, and whether it is proportionate in 2007 to require removal. Reliance is placed on the length of residence and the private life practised here.

On the question of delay, reliance is placed on the timetable. The 14 year concession had been applied as a policy, and was introduced into the rules in April 2003. Mr Lams, who appears for the applicant, tells me that it no longer appears in the policy statements of the Home Office, so that the provisions of a rule appear to have replaced the policy. The submission is that, had the May 2002 application been dealt with sooner, it would have succeeded, either under the policy or after April 2003 under the rule. It did not succeed in 2006 because in October 2004 provision was introduced that notice of liability to removal was a “clock stopping” event. It would not have been had the application been dealt with sooner. The court is invited to have regard to that when considering Article 8.

The applicant has signed on and lived a normal life in employment in the United Kingdom. It is submitted that the length of law-abiding residence is a factor and inevitably has an effect on the applicant’s private life if he is removed from the country where he has resided for many years. He is, as it is put, an integrated alien.

On the question of delay, though in a somewhat different context, the authorities have been reviewed and conclusions drawn from them in the decision of this court in HB (Ethiopia) & Ors v SSHD [2006] EWCA Civ 1713, a case subject to appeal to the House of Lords but to be applied in this court at present. It limits the extent to which a court can normally rely upon delay in dealing with applications. The point is made here that this is not simple delay. It is a delay which has had the implication to which I have referred. However at paragraph 24 (vi) of HB this point is considered:

“The mere fact that delay has caused an applicant who now has no potential rights under immigration law to miss the benefit of a hypothetical hearing of an asylum claim that would have resulted in his obtaining ELR [exceptional leave to remain] does not in itself affect the determination of a subsequent article 8 claim [Strbac, at §32].”

That approach appears to me to apply in the present situation. The fact that the claim could have been dealt with before the amendment to the rules does not in itself affect the determination of the present Article 8 claim. The delay clearly was unfortunate but in my judgment it can have no significant bearing on the decision of the tribunal or of the court on the present application.

I accept the submission that this is not a case where the delay has arisen or a deadline has been missed by reason of the manipulation of the system by the applicant. As in R v SSHD ex parte Ofori [1994] Imm AR 236, that factor does not apply in the present case.

The immigration judge dealt with submissions on Article 8 in this way. The applicant is a chef:

“15.

If he were to return to Malaysia he would be returning to a country substantially different from that which he left almost twenty years ago. Many substantial changes had taken place. … This would affect not only him but his former wife and children. He is firmly established in a way of life here and has worked conscientiously for many years. To return to Malaysia would entail a complete upheaval in his life and he would find it extremely difficult to settle from a number of points of view.”

Reference is made to his cross-examination on that issue. The immigration judge at paragraph 28 rejected the submission that the applicant could not cope with working in a Malaysian restaurant:

“He is obviously a skilled chef. Thus I consider that the only disruption to his private life, or that element of his private life relied upon, would be that his employment would be in a different country. I do not consider that this is interference sufficient to engage Article 8.”

That may have been a somewhat limited way of approaching Article 8 but the immigration judge no doubt had in mind that this is one of those cases where the applicant’s family is not in the United Kingdom but is in Malaysia, and putting the emphasis on the employment aspect appears to me to be appropriate.

It is correct that the immigration judge did use the expression, then commonly used, that only in “truly exceptional” cases would Article 8 apply. The tribunal found that no error of law had been made.

This is a renewed application. Permission has been refused by a single Lord Justice on a consideration of the papers:

“There is no arguable error of law in the decision of the AIT… In any event the Huang ground is without merit- if the test had been applied properly by IJ Mayall, the result would inevitably have been the same.”

That possibility was contemplated in the case of JN to which I have referred. At paragraph 17 the court stated:

“As Sedley LJ observed in AG (Eritrea) there will be many cases in which it can properly be said that on no view of the facts could removal be disproportionate. In other words, even where the wrong test has been applied, the same outcome would have been inevitable if the right test had been applied.”

On the facts of that case the court held that a reconsideration was required. In the present case I agree with the tribunal, in refusing leave, and with the single Lord Justice that the result would inevitably have been the same. The length of residence is substantial but there is no family life in the United Kingdom and to the contrary, the family is in the country to which the applicant would return. Moreover he has a highly marketable skill as a chef and the immigration judge rejected as a matter of fact the suggestion that his skills could not be practised in the country of which he is a citizen.

In my judgment there is no real prospect that the court would allow this appeal, taking such account as it can of the delay which has occurred and taking account of the applicant’s circumstances. Upon a full consideration the court would hold that there is no real prospect that the tribunal would on current authorities come to a different decision.

I mention the third ground of appeal, which Mr Lams did not seek to develop orally, but I did invite reference to it. It is a challenge to the concession made that the October 1998 notice was a valid notice. The immigration judge’s findings are at best ambiguous as to whether he was holding that the entry was illegal or whether the applicant realised only later that he had no right to be here. The tribunal have dealt with this point at paragraphs 10 and 11. I do not think there is a real prospect that this court would reverse the finding of the tribunal based on the immigration judge’s findings that:

“The clock therefore stopped as far as his fourteen years was concerned on 5 October 1998.”

I agree with the tribunal that no error of law has been disclosed and for the reasons I have given this application is refused.