Hussain (Zakir) v Secretary of State for the Home Department

Unlawful resident entitled to remain, as long as not undesirable in the public interest. Court of Appeal

From The Times. Published April 9, 2009.

Hussain (Zakir) v Secretary of State for the Home Department.

Before Lord Justice Sedley, Lord Justice Keene and Lady Justice SmithJudgment January 19, 2009

Evasion of immigration controls for a long time was not in itself a reason for deciding that an applicant, unlawfully in the United Kingdom, should not be allowed to stay.

The Court of Appeal so held, allowing the appeal of the applicant, Zakir Hussain, against the dismissal of his appeal against the refusal by the Secretary of State for the Home Department to grant him leave to enter.Mr Zulqarnain Malik for the applicant; Mr Alan Payne for the Home Secretary.LORD JUSTICE SEDLEY said that the applicant, a national of Bangladesh, who was now aged 50 had entered this country in 1991 on a six-month visitor’s visa. He had been here ever since. He applied for indefinite leave to remain in June 2006 on the ground of long residence.

That was refused by the secretary of state and upheld on appeal by Immigration Judge Ferguson on February 12, 2008 in the Asylum and Immigration Tribunal. That decision was upheld by Senior Immigration Judge Chalkley on April 30, 2008.Rule 276B (i)(b) of the Statement of Changes in Immigration Rules 1994 (HC 395), as inserted by the Statement of Changes in Immigration Rules 2003 (HC 538), was directed specifically to people who had managed to stay without lawful authority for 14 years or more. In effect it was an amnesty clause.

His Lordship considered that the immigration judge had lost sight of the fact that in this case the applicant had, as a result of 14 years’ unlawful residence during which he had maintained himself by working unlawfully, reached a point at which the Home Secretary’s own rules, which Parliament had approved, entitled him to remain, provided it was not undesirable in the public interest for him to be allowed to do so.

The opening words of rule 276B placed a formal onus on the applicant under paragraph (ii) to show that there were no reasons which made it undesirable to grant him indefinite leave to remain.

Once the evidence on both sides had been heard, the practical question for the immigration judge was whether there were any reasons in the public interest why the applicant, despite his long evasion of immigration controls, should not be allowed to stay. It defeated the purpose of the rule to use the evasion itself as a reason.

Immigration judges should apply Aissaoui v Secretary of State for the Home Department ([2008] EWCA Civ 37). In future MO (Ghana) ([2007] UKAIT 00014) should not be cited, even as persuasive authority on rule 276B(i)(b) appeals.An issue had arisen concerning the legal and evidential status on appeal of the directions the Home Office’s Immigration Directorate issued to its officials about the im-plementation of the rules in operation before the tribunal.

The question was what should happen when a discrepancy arose between the case being presented by the Home Office and a Home Office direction which was drawn to the tribunal’s attention. The proper course was not to introduce the material direction every time an issue arose as to the meaning or application of an immigration rule. But the presenting officer should be ready to explain to the tribunal any divergence between the presented case and any relevant direction to which the tribunal’s attention was drawn.

That was a reflection of the government’s legal obligation not to act inconsistently with its own policy unless there was some good reason for doing so: see British Oxygen Co Ltd v Board of Trade ([1971] AC 610).

More than that would be to give internal guidance the force of law; less would be to tolerate double standards in public administration.

Lord Justice Keene and Lady Justice Smith agreed.

Solicitors: Malik Law Chambers; Treasury Solicitor.

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