ASYLUM AND IMMIGRATION TRIBUNAL

 AC (‘Regularisation Period’:  Rights of appeal) Zimbabwe [2005] UKAIT 00128

THE IMMIGRATION ACTS

Heard at: Field House					Date of Hearing: 9 May 2005   
Promulgated on: 19th August 2005.         

Before:

Mr C M G Ockelton (Deputy President)
Professor A Grubb (Senior Immigration Judge)

Between
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant:		Mr M Fletcher of Duncan Lewis & Co Solicitors
For the Respondent: 	Ms K Evans, Home Office Presenting Officer

A person who made an unsuccessful application during the ‘regularisation period’ can be the subject of a decision to make a deportation order.  Section 5 of the 1988 Act applies if appropriate:  but if the appealable decision was made after 1 October 2000, human rights grounds can also be relied on.

DETERMINATION AND REASONS

History

1.	The Appellant is a citizen of Zimbabwe.  On 14 February 2003, the Respondent decided to make a deportation order against him.  That was an appealable decision and the Appellant appealed against it.  His appeal was dismissed by an Adjudicator, Mr S S Chohan, in a determination dated 8 October 2004.  The Appellant appealed to the Immigration Appeal Tribunal.  Permission to appeal was given on 2 February 2005.  Following the coming into force of the appeals provisions of the 2004 Act, that permission has effect as an order for reconsideration of the Adjudicator’s determination on the ground of a material error of law.  We note that although the Vice President who granted leave to appeal to the Tribunal had full grounds before him, he gave no reason at all for his grant of permission.

2.	The Appellant came to the United Kingdom on 17 September 1998.  He was given leave to enter until 31 October 1999 as a student, subject to a prohibition on employment or other work without the consent of the Secretary of State.  He studied nursing at the University of Central England.  (Although after the academic year 1998/99 the Appellant had no permission to be in this country, the University appears to have allowed him to continue his course in each of the four successive years, awarding him a diploma in 2003.)  It is not recorded that the Appellant made any application for further leave to remain as student.

3.	On 29 September 2000, he applied for leave to remain in the United Kingdom in accordance with the Immigration (Regularisation Period for Overstayers) Regulations 2000 (SI 2000/265) and section 9 of the 1999 Act.  His application was refused.  The Secretary of State being satisfied that the Appellant was remaining without leave, he decided to make a deportation order against him under s5 of the Immigration Act 1971 by virtue of the Appellant being liable to deportation under s 3(5)(a) of the 1971 Act as an overstayer.  That decision was made, as we have said, on 14 February 2003.  The notice of appeal to the Adjudicator is on two grounds:  the Secretary of State’s discretion to deport should have been exercised differently, and his decision breaches the Appellant’s human rights under Articles 3, 8 and 14.

4.	Following the Secretary of State’s decision, the Appellant claims that he entered into a traditional marriage in December 2003.  He says that that marriage was celebrated in Zimbabwe by a traditional meeting between families.  His “wife” is in the United Kingdom as a student, with limited leave to remain, and must be considered as a person who intends to leave the United Kingdom on termination of her studies during 2005.  They have a child, born some four months after the “marriage” on 22 April 2004.

5.	In our determination, we consider the following issues which were raised before us:  whether the Appellant is amenable to a decision to make a deportation order against him;  whether the Adjudicator erred in his assessment of credibility;  and whether the Appellant’s human rights would be infringed by his removal.  Despite the terms of the skeleton argument, we are not concerned with any asylum claim, for the Appellant has never made one, although what we say about Article 3 would have equal relevance to any asylum claim.  We should also make it clear that the Respondent has never invoked the public good as a ground for the Appellant’s deportation.

Can the Appellant be deported as an overstayer?

6.	Section 3(5)(a) of the 1971 Act introduced deportation as the usual process for removal from the United Kingdom of a person who had overstayed his or her leave to enter or remain.  As a decision to make a deportation order is always a matter of the Secretary of State’s discretion, an overstayer could appeal on the ground that the discretion should have been exercised differently.  By s 5 of the Immigration Act 1988, that ground of appeal was removed in the case of a person who had been in the United Kingdom less than seven years, who in future could appeal only on the ground that there was in law no power in his case to make the deportation order for the reasons specified in the notice of decision.

7.	The regime was altered substantially by the 1999 Act.  Section 10 of that Act substituted removal in accordance with directions for deportation as the appropriate course of action against a person who had overstayed his or her leave to enter or remain.  By a consequential amendment to s 3(5) of the 1971 Act, the power to make a deportation order on the ground only that a person had overstayed leave was removed.  Thus, generally speaking, since the coming into force of the principal provisions of the 1999 Act on 2 October 2000, an overstayer can as such not be the subject of a decision to deport, but only of a decision to remove.

8.	Section 9 of the 1999 Act empowered the Secretary of State to make regulations for a “regularisation period” during which overstayers could apply for leave to remain in the United Kingdom.  That section came into effect on 11 November 1999.  The regularisation provisions are the Immigration (Regularisation Period for Overstayers) Regulations 2000 (SI 2000/265).  The regularisation period ended as the principal provisions of the 1999 Act came into force on 2 October 2000.  The transitional provisions are somewhat complex, but there is no doubt that they have the following effect on an overstayer who, during the regularisation period, made an application for leave to remain.  

i.	The Secretary of State retains the power to make a deportation order against such a person as an overstayer:  that is the effect of paragraph 2(3)(b) of Schedule 2 to the Immigration and Asylum Act 1999 (Commencement No 6, Transitional and Consequential Provisions) Order 2000 (SI 2000/2444), continued by paragraph 2(3)(b) of Schedule 2 to the Nationality, Immigration and Asylum Act 2002 (Commencement No 4) Order 2003 (SI 2003/754).

ii.	The subject of such a deportation decision has a right of appeal under s 15 of the 1971 Act:  that is the effect of paragraph 12 of Schedule 15 to the 1999 Act, extended by paragraph 2(6) of Schedule 2 to the 2002 (Commencement No 4) Order.

iii.	The restrictions on the rights of appeal imposed by s 5 of the 1988 Act apply to such a person:  that is the effect of paragraph 12(2) of Schedule 15 to the 1999 Act, extended by paragraph 3(b) of Schedule 2 to the 2002 (Commencement No 4) Order.

iv.	Despite that restriction, if the decision was made after 1 October 2000, the person affected has an appeal on human rights grounds either (1) under the preserved right of appeal given by s 15 of the 1971 Act because the Secretary of State has in law “no power” to make a decision to deport the Appellant as an overstayer which breaches the Appellant’s human rights or (2) under s 65 of the 1999 Act because the decision to make a deportation order (made after 1 October 2000) is a “decision…relating to [a] person’s entitlement to…remain in the United Kingdom”  following R(Kariharan and others) v SSHD [2002] EWCA Civ 1102; [2002] INLR 383.  In both instances, the breach of the Appellant’s human rights is to be determined on the basis of the circumstances as at the date of the hearing.  

(Sections 82(2)(j) and 84(1)(g) of the 2002 Act would provide the same right of appeal on human rights grounds for decisions made on or after 1, April 2003.)  

9.	The Appellant is accordingly liable to be deported and may be the subject of a deportation order as an overstayer.  As he was last granted leave to enter the UK less than seven years before the decision against which he now appeals, he has no appeal under s 15 of the 1971 Act based on the exercise of the Secretary of State’s discretion.  His appeal is limited to human rights grounds under  s 15 or, alternatively, under s 65 of the 1999 Act.

The Adjudicator’s assessment of credibility and of the facts

10.	The Appellant was born in Zambia and, at the time he came to the United Kingdom on a Zimbabwean passport, he appears also to have been a citizen of Zambia.  His Zimbabwean passport expired in July 1999.  He is said to have received advice that he could not renew it without renouncing his Zambian citizenship.  (The reason for that is unclear, as there is no reference to dual citizenship in his passport, but for present purposes we will assume that the advice was good.)  He took steps to do so.  It appears that his renunciation was executed on 15 September 2000, and there is a letter dated 4 August 2004 from the Zambia High Commission in London stating that:  but the Appellant’s renunciation (on which, incidentally, he has failed to indicate whether or not he is married) is dated 4 August 2004 and is stated to have been made in the Zambia High Commission on that date.  Also dated 4 August 2004 and in the Appellant’s bundle is a letter from the Zimbabwean High Commission in the following terms:

“To whom it may concern

This serves to advise that Aaron Tsikayi Chisango will need to travel to Zimbabwe to obtain a Zimbabwe national identity card and renounce his right to Zambian citizenship to enable him to apply for a new passport.”

11.	The Adjudicator was concerned solely with the evidence going to the Appellant’s claim that his human rights would be breached by his deportation from the United Kingdom.  His claim to that effect was made for the first time, and in extremely vague terms, in his notice of appeal dated 26 February 2003.

12.	At the hearing before the Adjudicator, the Appellant said that the reason why he had not made proper arrangements to extend his stay when his leave to enter the United Kingdom expired was that, because his passport had also expired, he was afraid that he would get into trouble.  In any event, he said, he was a supporter of the MDC and he thought that in 1999 or 2000 they would come to power or at least obtain some acceptance in Zimbabwe.  The Adjudicator noted the time it had taken for the Appellant to do anything about his overstay, and decided that he did not believe the explanation that he was given, based as it was on the Appellant’s claim not to have consulted any lawyers until shortly before his application for leave to remain.

13.	In our view, the Adjudicator was amply justified in his assessment of the Appellant’s credibility.  The Appellant knew that he was an overstayer after 31 October 1999.  He made no attempt to regularise his position or indicate to the United Kingdom authorities what his problems were.  His first attempt to deprive himself of the possibility of returning to Zambia as a citizen was made only a few days before his application for leave to remain in the United Kingdom.  If he genuinely had any fear of returning to Zimbabwe, we are confident that he would have retained the option of living in Zambia.  Following his application for leave to remain, he did nothing to indicate to the United Kingdom authorities that he had any fear of return to Zimbabwe, the only country of which by then he was entitled to citizenship.  We are confident that if he had genuinely had any fear of ill-treatment on return to Zimbabwe, he would have made an asylum claim.

14.	In fact, it does not appear that the Appellant’s attempt to renounce Zambian citizenship was effective at first.  He had to make a new declaration in August 2004.  He appears to have done so voluntarily.  If he had had at that stage any genuine fear of return to Zimbabwe, we are confident that he would have explored the matter with the Zambian authorities rather than continuing with his renunciation of Zambian citizenship.  There is, after all, no doubt at all that by that stage he knew that the Secretary of State would not willingly allow him to remain in this country.

15.	The skeleton argument asserts that the Adjudicator “finds appellant honest”.  That is not correct.  What the Adjudicator found was that the Appellant “may well have been honest” in telling him why he had overstayed, but that the reason did not justify his not informing the Home Office;  and the Adjudicator went on to set out in some detail his disbelief of the rest of the Appellant’s claim.

16.	The Adjudicator considered the other evidence before him which was alleged to support the Appellant’s claim to be an MDC member and to be at risk on return.  The Adjudicator did not believe either the witness, Mr Malinga, or the documents.  Again, in our view, he was justified in his approach.  The Appellant’s own history and conduct demonstrates positively that he does not genuinely consider himself to be at risk.

17.	For these reasons, we reject the Appellant’s grounds insofar as they are based on the Adjudicator’s assessment of credibility and findings of fact.

The appeal on human rights grounds

18.	For the reasons given in the preceding paragraphs, there is no substance in the Appellant’s claim that his deportation would breach his rights under Article 3.  Article 14 was mentioned in his grounds of appeal to the Adjudicator, but there has never been any indication of how his rights under Article 14 would be affected.

19.	That leaves Article 8.  The claim under Article 8 is based on his “marriage” and his “wife’s” child (we do not know if the child is his).  The Appellant’s partner made a statement in September 2004 claiming a fear of return to Zimbabwe.  Her position is, however, as we have indicated, that she is a student and her existing leave is dependent upon her intention to leave the United Kingdom.  That must be the background of the relationship between her and the Appellant, and the birth of their child.  We assume for the purposes of this determination that the relationship between these three people is very close, whether or not there is anything that could properly be called a marriage.  But there is no reason at all in our view to suppose that, when the Appellant leaves the United Kingdom, his partner and her child could not and, in the light of her own immigration status, should not go with him.  Like the Adjudicator, we are entirely unpersuaded that there would be any breach of Article 8.

Conclusion

20.	The Adjudicator made no material error of law.  We affirm his determination.

C M G OCKELTON
DEPUTY PRESIDENT
          Date: