At times the drafting of the Immigration Acts leaves a lot to be desired: rapid legislative change enhances entropy in an already difficult environment. In this case, the Upper Tribunal (UT) decided in favour of six appellants who the Secretary of State for the Home Department considered to have been involved in fraudulent activities.
The six Pakistani appellants came from four families and were inter-related by marriage or blood or both and each family obtained visit entry clearances in 2000 or 2001 as Pakistani nationals applying through the British High Commission in Islamabad. Subsequent to arriving in the UK, each family claimed asylum on the basis of being Indian nationals and provided names, dates of birth and histories that were at odds with the contents of their entry clearance applications. Each family claimed that it had only one parent because the Indian army murdered the other. Each family had associated family members including children some of whom depended upon the asylum claims of the principal appellants (not dealt with in the present determination) and were granted ‘derivative’ refugee status and indefinite leave to remain on that basis. Other family members are failed asylum seekers and their dependants. The parents were arrested in July 2004 and charged with conspiracy to assist unlawful immigration, conspiracy to defraud by obtaining benefits and obtaining leave to enter by deception. All of them pleaded guilty and thus refugee status and settlement, where granted, were revoked against all family members.
The issue to be determined by the UT was whether the sons and daughters, who were over 18 and were to be removed under section 10(1)(c) of the Immigration and Asylum Act 1999 could be regarded as belonging to the family of the parents whose removal has been directed under section 10(1)(b). The answer depended on whether “family” within the meaning of section 10(1)(c) should interpreted to include only children under 18.
The UT (Collins J and Judge Coker) explained that in the first instance the provisions for deportation were set out in section 3(5) of the Immigration Act 1971: deportations were possible when a non-British citizen failed to adhere to a condition of his leave or if his deportation was conducive to the public good and if another person whose family he belongs is or has been ordered to be deported. A further provision – subsection (5)(aa) dealing with leave to remain obtained by deception – was inserted by the Asylum and Immigration Act 1996. The requirement applied to illegal entrants. In Khawaja  AC 74, the House of Lords confirmed earlier case law that a person who used deception to enter violated immigration law and was an illegal entrant. The UT, para 14, explained that:
The 1996 Act thus did not need to refer to deception practised by the entrant himself but extended the definition to include those whose entry was achieved by another’s deception. Thus for example children of deceiving parents would themselves be illegal entrants even if unaware of the deception.
On its present reading, section 5(4) of the 1971 Act regards husbands, wives, civil partners and children under the age of eighteen as persons who belong to the deportee’s family.
Highlighting that illegal entrants were subject to administrative removal pursuant to Schedule 2 to the 1971 Act (paragraphs 8, 9 and 10), the UT explained that the SSHD thought that in the event that section 10(1)(c) did not cover sons and daughters over 18 then their removal was covered by paragraph 9 – “any children whose parents achieved entry by deception were themselves illegal entrants”: para 17. Moreover, the UT noted that the insertion paragraph 10A in Schedule 2 of the 1971 Act allowed the removal of “children born or wives, husbands or partners in place after entry”: this created a “problem since family is not limited in the way that section 5(4) provides for the purpose of deportation”: para 18.
Under section 10 of the 1999 Act deportation was replaced by administrative removal (for overstayers, individuals who breached conditions of their leave and those who obtained leave to remain by deception). This change removed the bar to re-entry where a deportation order existed but removed an in-country right of appeal except in cases where human rights were breached. Moreover, the Immigration Rules were changed to include paragraphs 395A – 395C (now deleted): notably paragraph 395B(iii) included the spouse, civil partner or child under 18 of someone in respect of whom removal directions had been given under section 10. (Paragraph 395C required that the case of family members, the factors listed in Paragraphs 365–368 (deportation of family members) must also be taken into account.)
Under paragraph 366 the deportation of a child will not normally be directed where the child and his mother or father are living apart from the deportee, where the child has left home and established himself on an independent basis or has married or formed a civil partnership before deportation came into prospect. The UT noted that under section 5(4) of the 1971 Act, family members are limited as stated in paragraph 395B(iii) of the Immigration Rules and paragraph 366, therefore, only applied to children under 18: para 21.
The appellants, who were over 18 when removal directions were made, argued that they were not a part of their parents’ family within the meaning of section 10(1)(c) because “family” took the limited meaning contained in section 5(4) of the 1971 Act. Conversely, the SSHD contended that Parliament did not transfer to the 1999 Act the limitation contained in section 5(4) of the 1971 Act: Parliament did so on purpose because the limitation applied only to “deportation” and that no such limitation applied to “administrative removal”. Equally, paragraph 10A of Schedule 2 to the 1971 Act demonstrated that the word “family” for the purposes of removal of illegal entrants must be construed as wider than it is for the purposes of deportation because the limitation is not extended in the 1971 Act beyond deportation. Hence, as argued on the SSHD’s behalf, “family” for the purposes of administrative removal under the 1999 Act was also wider.
The UT elaborated that authority from the House of Lords had decided that the word “family” was to be given its ordinary meaning in the context in which it appeared. Moreover, “family” was not a term of art. Rather, it was a word in ordinary usage with a flexible meaning and Parliament had left it to the courts to determine, in any given case, whether a particular individual fell within the description. From this perspective, sons and daughters over 18 can properly be regarded as continuing to be members of their parents’ family: something that was capable of being respected under article 8 ECHR.
In sum the appellants’ position was that, if not specifically defined, there was an ambiguity having regard to the potential width of the word family. This was answered by the SSHD by reference to section 167(2) of the 1999 Act which states that various expressions should have the same meaning as in the 1971 Act but the word “family” is not included.
But all this did not bite in the SSHD’s favour. The UT thought that the transfer of the deportation regime to one of administrative removal could not rightly include children over 18 because “no-one can properly be subject to penal consequences upon an ambiguous or unclear provision”: para 30. The rationale was that, prior to the arrival of section 10 of the 1999 Act, a son or daughter who was over 18 and so could not be deported as a family member would suddenly be liable to removal which carried with it a power to detain and automatic rescission of leave to remain.
Thus, the UT opined that it was confronted with a clear error in drafting and the tribunal thought that it would be “extraordinary” that, without clarifying that it intended to do so, Parliament would have made the change claimed by the SSHD. Lord Scarman’s view that the law could not interfere “with liberty unless Parliament has unequivocally enacted that it should” was also reiterated as authority that the powers of administrative detention must clearly exist and a statute conferring such powers will be construed strictly and narrowly.
Admitting the appellants’ reliance on paragraph 395B of the Immigration Rules as a guide to construction of section 10(1)(c), the UT also accepted the appellants’ argument that under section 86(3) of the Nationality, Immigration and Asylum Act 2002 it must allow the appeal because the decision against which the appeal is brought was not in accordance with the law (including the Immigration Rules). Not only did the UT reject the submission that the SSHD was lawfully entitled to disapply the policy represented in paragraph 395B of the Immigration Rules if primary legislation gave her the relevant power, the tribunal also found it “clearly desirable” that it should indicate its view how section 10(1)(c) should be construed.
Allowing the six appeals the UT found that:
There is no power under the provisions of section 10(1)(c) of the Immigration and Asylum Act 1999 to remove children who are over the age of 18 years as the family members of an adult being removed under section 10(1)(b) of that Act.
The UT added that deception in obtaining leave to remain must be deception in which the person whose removal is sought was complicit and that, if complicit in the deception, children over 18 could be removed under section 10(1)(b) of the 1999 Act.