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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> DD (Turkey) v Secretary of State for the Home Department [2007] EWCA Civ 270 (21 February 2007) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/270.html Cite as: [2007] EWCA Civ 270 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. IM/18274/2005]
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE GAGE
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DD (Turkey) |
Appellant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
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MISS E GREY (instructed by Secretary of State for the Home Department) appeared on behalf of the Respondent.
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Lord Justice Gage:
"30. Passengers who obtain entry clearances for the purposes of establishing themselves in the United Kingdom in business, whether a new or existing business should be admitted for a period not exceeding twelve months with a condition restricting their employment. Passengers who are unable to present such clearance but nevertheless seem likely to be able to satisfy the requirements of one of the next two paragraphs should be admitted for a period of not more than two months, with a clear prohibition on employment, and are advised to present their case to the Home Office.
"32. If the appellant wishes to establish a business in the United Kingdom on his own account, he will need to show that he will be bringing into the country sufficient funds to establish a business that can realistically be expected to support him and any dependants without recourse to employment for which a work permit is required."
"It is argued on behalf of the appellant that she is a port applicant who has not deceived the immigration officers at entry and was granted entry on a temporary admission and therefore deemed to have entered legally under the 1973 Rules. She has established her self employment, as was accepted by the Immigration Judge at paragraph 7 of the determination, and accordingly therefore her claim fell to be considered also under those relevant immigration rules. The fact that the Immigration Judge has failed to do so amounted, it can be submitted, to a material irregularity amounting to an error of law.
"Mr Blundell, on behalf of the respondent, invites us to find that the whole basis of that argument is misconceived. As the Immigration Judge commented in the summary of evidence at paragraph 5(v) of the determination the appellant entered the United Kingdom illegally in 2002. Evidence in relation to that entry was presented to us in a document signed by a J N Burnfield and was an immigration document. That particular witness discovered the appellant hiding in the toilet of a carriage on 11 November 2002. The appellant attempted to prevent him from opening the door. When the appellant was eventually removed she held only a Nufus card, a driving licence and US$60 in cash. Thus the appellant was seen to use deception to get herself into the United Kingdom and only claimed at the port because she had been discovered. Mr Blundell submits that there is no suggestion whatsoever that the appellant was granted any form of leave to come into the United Kingdom, certainly not of the nature of leave that was required out of the provisions of EC-Turkey Association Agreement.
"However, his argument was reinforced by reference to the decision in Genkay Yolmaz [2005] EWHC 1068 (Admin). Mr Blundell invited our attention to that decision which confirms that the exception to the operation of the standstill clause is that where deception has been employed. In any event he submits there has been no evidence as to the nature of the business and whether or not the requirements of rules 30 and 32 of HC 509 were satisfied. No evidence was presented on that matter and none has been considered."
"For all the reasons given above, it is respectfully submitted that the appellant is a port applicant who has not deceived the Immigration officers at the entry and she was granted entry on temporary admission is deemed to have been considered as entered legally under 1973 Rules where the applicant has established a self-employment which was accepted by the learned Judge at paragraph 7."
"(1) Where an order for reconsideration has been made, the Tribunal must consider an appeal as soon as reasonably practicable after that order has been served on both parties to the appeal.
"(2) Where the reconsideration is pursuant to an order under section 103A –
(a) the Tribunal carrying out the reconsideration must first decide whether the original Tribunal made a material error of law; and
(b) if it decides that the original Tribunal did not make a material error of law, the Tribunal must order that the original determination of the appeal shall stand.
"(3) Subject to paragraph 2, the Tribunal must substitute a fresh decision to allow or dismiss the appeal."
"(2) if a party wishes to ask the Tribunal to consider evidence which was not submitted on any previous occasion when the appeal was considered, he must file with the Tribunal and serve on the other party written notice to that effect, which must --
(a) indicate the nature of the evidence; and
(b) explain why it was not submitted on any previous occasion.
"(3) A notice under paragraph (2) must be filed and served as soon as practicable after the parties have been served with the order for reconsideration."
"She states the following in support of her claim:
…
"(b) She entered the United Kingdom illegally in 2002 in order to reunite with her husband. She was advised to make an asylum application upon arrival. She was motivated in part by the abuse that she was receiving from her parents."
"An appellant who wishes to establish a business… must show that he will be bringing into the country sufficient funds to establish a business that can realistically be expected to support him …"
There was no such evidence before the AIT. It is true that there was reference to a partnership between the appellant and her husband before the Immigration Judge. He plainly did not have in mind at that stage whether or not it was sufficient to satisfy Rule 32. There is nothing in his findings of fact to show that it would and no application was made for further evidence to be placed before the AIT. In the circumstances, that is in my judgment another reason for rejecting this ground of appeal.
"It is clear to us from the appellant's immigration history that this is a classic case of 'queue jumping' that the appellant sought to evade proper immigration control in order to be with her husband in the United Kingdom. There is nothing exceptional in her circumstances and nothing has been advanced before us to make it so. There is no reason to suppose that the appellant need have any contact with her family were she to return to Turkey and even if contact was made there is nothing to suggest that anything untoward would happen to her."
It seems clear from that paragraph that what the AIT was deciding was that there were no exceptional circumstances which would make it disproportionate to return the appellant to Turkey, where she could renew her passport and then return to this country. That finding, even if it is not specifically expressed in terms of private as well as family life, seems to me to apply to both. In either circumstance, that ground also must fail.
"We find that the Immigration Judge had considered for all relevant matters in assessment and that there is no error of law in his findings or decision."
Miss Mallick replies that was in itself an error of law, since the tribunal had been discussing and making findings in relation to the ECTAA which had not been considered by the Immigration Judge. The answer to that, in my judgment, is that the AIT were dealing with two different matters. First, the point about the ECTAA which was a free-standing ground of appeal; it dealt with that obligation at paragraph 22. It stated:
"Thus, although the Immigration Judge did not consider that aspect of the EC Agreement we do not find, even if he had, that it would have made any material difference to the overall considerations which had been applied."
That is clearly a reference to that ground, whereas paragraph 27 in my judgment is a reference to the Article 8 ground.
Lord Justice Rix:
Order: Application granted. Appeal dismissed.