RJ (India) v Secretary of State for the Home Department

This is an appeal with permission granted by myself on 5 September 2012 against a decision of the Upper Tribunal (Upper Tribunal Judge McKee) dismissing the appeals of the appellant and his wife and two daughters from a determination of Immigration Judge Abebrese in the First-tier Tribunal promulgated on 8 July 2011. The FTT had dismissed their appeals against the Secretary of State's decision of 7 April 2011 to remove them following her refusal of their application for leave to remain outside the Immigration Rules in reliance on Article 8 of the Human Rights Convention.

The appellant and his dependants are citizens of India. The appellant, his wife and first daughter arrived in the United Kingdom on 21 April 2005. They had visitors’ visas valid until the end of June 2005, but they overstayed. Another daughter was born in this country on 18 February 2007. The application for leave to remain was made on 31 March 2010. The appellant, for himself and his family, asserted that they could not be expected to relocate to Bihar or West Bengal, which was where they came from.

It was agreed on all hands that the determination of Immigration Judge Abebrese was so shot through with error that it would have to be set aside. Before the Upper Tribunal, Mr Malik of counsel took an entirely new point, abandoning other grounds. As Upper Tribunal Judge McKee frankly acknowledged, he was taken by surprise, as was the Home Office representative, but nevertheless the Upper Tribunal allowed the point to be argued. This new point is the basis of the appeal to this court. The argument is directed to section 10 of the Immigration & Asylum Act 1999. The section provides, so far as material:

In this case, on 7 April 2011, the Secretary of State had served notice on the appellant and his wife stating that he had decided to remove them under section 10 as overstayers: section 10(1)(b). On the same day she gave notice to the appellant's two daughters stating that she had decided to remove them under section 10 as daughters of the appellant: section 10(1)(c). No removal directions as such have been issued against the appellant or against any of his family members.

Mr Malik's argument on behalf of the appellant is that removal decisions in respect of the principal subject, here the overstayers (father and mother) and the dependants (here the children) cannot be taken at the same time. He says that the terms of section 10(1)(c) are critical to this submission I repeat a family family member may be removed if "directions have been given for the removal of a person to whose family he belongs". Mr Malik emphasises the verb “have been given”. This, he submits, shows that the decision to remove the principal must precede the decision to remove the dependant.

The Upper Tribunal held that section 10 is dealing with removal directions as opposed to removal decisions. There was nothing to prevent the Secretary of State from deciding at one and the same time to remove an overstayer and his dependants as dependants: see the Upper Tribunal's determination, paragraphs 14 to 15. But the Upper Tribunal added this at paragraph 16:

In my judgment, the Upper Tribunal was quite right to treat the distinction between removal decisions and removal directions as critical. There is nothing in section 10 which has effect to prevent the Secretary of State from deciding, at one and the same time, to give directions for the removal both of the principal subject and his dependants; section 10(1)(c) simply does not bear on that position. The language of other provisions referred to by Mr Malik this morning, such as section 3 of and schedule 2 to the Immigration Act 1971, does not touch this conclusion. Nor does the Upper Tribunal's decision in Ahmad [2012] UKUT 00267, in which the issue was whether section 10(1)(c) allows removal of children over 18 as family members. Mr Malik sought in the course of his submissions today to stretch the appeal right conferred by section 82.2(g) of the 2002 Act so that, as he put it, it should extend to the "hypothetical removal" of a family member, which would follow a decision to remove that person. But this with respect is incoherent. The right of appeal is against the decision to remove simpliciter. The suggestion that it also or alternatively applies to something else is simply mystifying. Moreover MS (Palestinian Territories) [2010] 1 WLR 1639, to which Mr Roe for the Secretary of State drew our attention, makes it clear -- see in particular paragraph 23 of the Supreme Court's decision -- that there is a conceptual divide between a decision to remove and removal directions.

For all these reasons, for my part I conclude that Mr Malik's argument is misconceived.

I should add, however, that I consider that the Upper Tribunal was wrong to hold in paragraph 16 that the actual removal directions, when they came to be given, could only be given sequentially: first the principal and then the dependants. All that one can get out of section 10(1)(c) (I repeat: "directions have been given for the removal of a person to whose family he belongs") is that the actual removal of the dependant must take place after directions have been given in respect of the principal. That is wholly unsurprising. Section 10(1) is dealing, and only dealing, with the power to remove; there is nothing to prevent removal directions being given for the principal and the dependant at the same time, just as there is nothing to prevent the Secretary of State from deciding to issue directions in respect of both at the same time. Section 10(3) is nothing to the contrary.

In those circumstances it is unnecessary to address the respondent's alternative argument canvassed in Mr Roe's skeleton that we should reject Mr Malik's construction as perpetrating an absurdity.

For these reasons I would dismiss the appeal.

I agree.

I also agree.