The principles of case laws related to illegal entrant to the UK impacting British Nationality Applications

We have seen a rise on the number of British Nationality application’s being refused, on the sole notion of failing to meet the Good Character requirements. British Nationality law itself is complex. It’s policies and definitions are drawn from policy guidance’s drawn up by the Home Office and then case laws provides us clarifications on how these rules are supposed to be interpreted.

I have found that not all case laws provides us the absolute guidance which means an application for British Nationality must contain the correct references as well as the correct arguments.

We start on the case of MA (Illegal entrance – not para 395C) Bangladesh [2009] UKAIT 00039. The appeal was related to the definition of illegal entrance to the UK. In the circumstances and the factors mentioned in paragraph 395 of the Immigration Rules Hc395 are relevant only to a Section 10 Removal and not to the case of removal of an illegal entrant.

Had it been intended that these criteria were to be made to be applicable to the case of an illegal entrant whose removal was contemplated, then the Rule would have said so – the forward slashes in the heading of the notice of immigration decision clearly indicated alternatives though it would no doubt be of assistance if those acting on behalf of the Secretary of State would strike out the parts of the heading which are not applicable to the particular case so as to avoid potential confusion.

The above case law relates to a Bangladeshi national, who on the 29th of October 2007 was given directions to be removed from the UK. He appealed the decision and was then before Judge Allen.

We take note on paragraph 9 of the judgement:

This appeal raises a short point on the ambit of section 10 of the Immigration and Asylum Act 1999 with reference to the form IS151B containing a notice of immigration decision.  As Mr Parkinson has pointed out, the front sheet, as it were, to the Secretary of State’s bundle refers to a decision being made to refuse to grant asylum under paragraph 336 of HC 395 (as amended) and on the same day a decision was made to remove an illegal entrant from the United Kingdom by way of directions under paragraphs 8 to 10 to Schedule 2 to the Immigration Act 1971.  That is not of course a notice which complies or seeks to comply with the Notices Regulations, and the notice of immigration decision purportedly in compliance with those Regulations is the IS151B, the heading of which is as follows:

“Decision to remove an illegal entrant/person subject to administrative removal under Section 10 of the Immigration and Asylum Act 1999/Asylum/Human rights claim refused.”

Now turning to paragraph 395C of the Immigration Rules, which has now been deleted from the current rules, it’s framework suggests the following:

Paragraph 395C of the Immigration Rules states that:

“Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State, including:

i. age; ii. length of residence in the United Kingdom; iii. strength of connections with the United Kingdom; iv. personal history, including character, conduct and employment record; v. domestic circumstances; vi. previous criminal record and the nature of any offence of which the person has been convicted; vii. compassionate circumstances; viii. any representations received on the person’s behalf. In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account.” (Of particular relevance in family cases is paragraph 367(ii), which states that in the case of a child of school age, the effect of removal on his education is to be taken into account).

Following the removal of the above, Secretary of State have introduced Section 12, of the Immigration Rules, which states the following:

353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.

353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.

Exceptional Circumstances

353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant’s:

(i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;

(ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;

(iii) length of time spent in the United Kingdom spent for reasons beyond the migrant’s control after the human rights or asylum claim has been submitted or refused; in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate. This paragraph does not apply to submissions made overseas. This paragraph does not apply where the person is liable to deportation.

I make a further reference to the criteria of reference to the illegal entrant:

The House of Lords in R v Secretary of State for the Home Department, ex p Khawaja [1984] 1 AC 1974 has made it clear that in reviewing the decision of an immigration officer to detain someone as an illegal entrant the court “should appraise the quality of the evidence and decide whether that justifies the conclusion reached” (Lord Wilberforce at p. 105D). The court “should quash the detention order where the evidence was not such as the authorities should have relied on or where the evidence received does not justify the decision reached or, of course, for any serious procedural irregularities” (at p. 105E).

This confirms that Home Office simple arguments on someone being an illegal entrant has to be considered carefully. Secretary of State must have factual and correct evidences to make such a claim.

The case of Khawaja, above; Lord Fraser of Tullybelton at p 97G gives further direction but Secretary of State own guidance to his Officers states:

“Undertake a thorough interview under caution to establish illegal entry by deception to a high degree of probability. It is vital that the interview is well-structured and planned, asking appropriate questions to gather all the facts before confronting the person with any discrepancies.” (Enforcement Instructions and Guidance, para 3.11; emphasis in the original).”

The above provides the framework of decisions that could impact a British Nationality application, and how directions of removal when not challenged properly can have an impact to the Nationality application.