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click here for freelancing tutoring sitesNeutral Citation Number: [2013] EWHC 16 (Admin)

Case No: CO/3939/2011IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT

Royal Courts of JusticeStrand, London, WC2A 2LL

Date: 31/01/2013

Before:

INGRID SIMLER QC (Sitting as a Deputy High Court Judge)

- - - - - - - - - - - - - - - - - - - - -Between :

DAUT CAKANI Claimant - and -

SECRETARY OF STATE FOR HOME DEPARTMENT

Defendant

- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -

Mr R de Mello (instructed by Karis Law) for the ClaimantMr C Staker (instructed by the Treasury Solicitor) for the Defendant

Hearing dates: 19 July 2012- - - - - - - - - - - - - - - - - - - - -

JudgmentIngrid Simler QC sitting as a Deputy High Court Judge:

1. This is an application for judicial review challenging the Defendant’s decisions refusing to revoke an exclusion decision made in respect of the Claimant following his convictions for possession of a false instrument. The initial refusal decision was dated 28 January 2011. The Defendant made a further decision dated 10 February 2012, and although the Claimant has not sought to amend his grounds to include a challenge to this subsequent decision, it is implicit in his written argument that he seeks to challenge this decision as well, on essentially the same grounds as those directed at the earlier refusal decision.

2. The application was listed for hearing on 19 July 2012. On 18 July 2012 the Supreme Court handed down judgment in R (on the application of Alvi) v Secretary of State for the Home Department [2012] UKSC 33 which the Claimant contended had potential relevance to the matters in dispute between the parties, but had not been addressed in written argument. Accordingly, I heard argument on the judicial review application, but allowed both sides to reserve their positions on Alvi, and made directions for service of further written submissions to address the Supreme Court’s judgment in Alvi to the extent regarded necessary by each side. Unfortunately, the further written submissions produced promptly by the parties were not brought to my attention until late November 2012. Having read those documents I invited the parties to indicate whether they wished to advance further oral argument in addition, and received confirmation in late December 2012 that both sides were content to proceed on the basis of their written submissions without a further hearing.

Background

3. Permission to apply for judicial review was granted by Collins J on 12 October 2011. He dealt with the application without sight of the Defendant’s Acknowledgment of Service (“AOS”), which had not been served within the prescribed period. However, having drafted paragraphs 1-6 of his order granting permission, the AOS was served late and Collins J considered it prior to finalising his order. He remained of the view that the challenge to the exclusion decision was arguable in circumstances where the offences of which the Claimant was convicted did not lead automatically to deportation, and the sentencing Judge considered that the Claimant posed no detriment to this country justifying a recommendation by him for deportation.

4. There is some controversy as to which of the other grounds Collins J gave permission to the Claimant to pursue. It is reasonably clear that he refused permission in respect of grounds 1, 2 and 6 and granted permission on ground 3 subject to one point of clarification. Although the Claimant has sought to reintroduce arguments based on grounds 1, 2 and 6 (both orally and in his Further Submissions) he has no permission to do so, and accordingly, I have not dealt with these grounds. However, Collins J’s decision on grounds 4, 5 and 7 is less clear. Since I have heard argument on these three further grounds, I treat them as grounds on which permission was granted and deal with them below, together with the further argument based on Alvi.

5. The following grounds of challenge are therefore pursued on this judicial review:

(a) Whether the Defendant acted unlawfully in excluding the Claimant or refusing to revoke the exclusion because she had no residual power to do so, or acted by reference to rules not scrutinised by Parliament (the “Alvi” ground).

(b) Whether there was a mistake of fact or belief that the Claimant was recommended for deportation by the sentencing Judge, that led to and therefore vitiates the decision to make and/or refuse to revoke the exclusion decision (ground 3).

(c) Whether the decision was made inappropriately in reliance on the first limb of paragraph 391 HC 395 whereas the Claimant’s case should have been assessed under paragraphs 320 (18) and (19) (ground 4).

(d) Whether the decision breached the Claimant’s Article 8 rights (ground 5).

(e) Whether there was a failure to provide adequate reasons (ground 7).

6. Two new witness statements, both dated 18th June 2012, from the Claimant and his wife, Tina Elliott, were included in the trial bundle without prior notice having been given to the Defendant. The Claimant contends that the statements simply set out the factual matters of which the Defendant has been well aware. This is not accepted by the Defendant, who objects to their admissibility. Most significantly, the Defendant objects to paragraph 17 of the Claimant’s statement and paragraphs 25-31 of Tina Elliott’s statement, to the effect that the Claimant was misled into signing a form accepting removal to Albania, or not told what it was really about, or led to believe that voluntary return to Albania would regularise his status and enable him to return to the UK. These allegations are made for the first time in the witness statements and are challenged as a matter of fact by the Defendant. If admitted, the Defendant would seek to cross-examine on critical disputed issues.

7. The Claimant maintains that he should be permitted to rely on these statements but no reason has been advanced by him for seeking to introduce new evidence at this late stage; nor is it clear to what issue the further evidence is directed.

8. This is an application for judicial review concerned with the legality of the Defendant’s decisions, and not an appeal on the merits. Self-evidently the witness statements in question were not before the Defendant and formed no part of the decision-making process that is challenged. Moreover, none of the grounds advanced by the Claimant rely on any misleading or deception. For these reasons, in my judgment the witness statements are not relevant to the issues to be decided on this application, and I have not considered them further.

Facts

9. The Claimant is an Albanian national born on 4 January 1982. He came to the UK by clandestine means on 4 August 2002, claiming asylum on the false basis that he was a Kosovan refugee fleeing Serbia, using the name Daut Preci and a false date of birth in 1986 thereby presenting himself as a minor.

10. His asylum claim was rejected and his appeal dismissed by the IAT on 24 January 2003. Although not thereafter entitled to be here, the Claimant remained and began working illegally in the United Kingdom.

11. In October 2007, the Claimant was involved in a car accident and when asked by police at the scene for formal identification, produced a false Greek driving licence. He was subsequently arrested and charged with two offences of possession and/or use of a false instrument.

12. On 21 January 2008 the Claimant pleaded guilty at Maidstone Crown Court to two offences of possessing a false identity document with intent to deceive. He was sentenced to 12 months’ imprisonment. The sentencing Judge concluded that the offence was premeditated, and that the Claimant had deliberately set out to deceive because he had no right to stay in the UK and had exhausted all avenues of appeal.

13. The Judge did not make a recommendation for deportation, but stated that this was “a close run thing”. He said:

“I am satisfied in the circumstances that the Immigration Authorities are aware of your position and will be well aware of it upon your release and I am just persuaded that in all the circumstances, you do not pose a potential detriment to this country such that I ought to make a recommendation and I will, therefore, not do so. It is a close run thing.” (A58-59)

14. The Claimant served 6 months in custody and was released on licence for the remainder of the sentence. On 7 February 2008 the Claimant was served with notice of his liability to be deported.

15. There is no dispute that on 11 March 2008, the Claimant applied to be removed under the Facilitated Returns Scheme (“the FRS”) which offers voluntary return (with or without assistance) instead of awaiting removal by the UK Border Agency by way of a deportation order.

16. As a consequence, again it is common ground that on 12 March 2008 he signed a disclaimer waiving his appeal rights and stating that he wished to be returned voluntarily to Albania. The disclaimer (at B49) stated in terms that exclusion following departure from the UK was possible and the Claimant ticked the box signifying that he understood this. An Issuing Officer was present when he did so and signed the form confirming this.

17. The Claimant returned to Albania voluntarily under the FRS on 1 May 2008.

18. On 4 June 2008 the Defendant made an exclusion decision against the Claimant (issued under paragraph 320(6) of the Immigration Rules (HC 395)) on the grounds of his criminal conviction for possession/use of a false instrument. The Home Office issued a notice to the Claimant dated 14 June 2008 informing him that the Defendant had decided personally to exclude him “on the ground that your presence here would not be conducive to the public good for reasons of criminality, specifically your criminal conviction for Possession & or use of False Instrument.” (A54).

19. On 23 June 2008, after having returned to Albania and no doubt aware that he might have been excluded, the Claimant married Tina Elliott in Albania. He claims to have met her in July 2007 at a time when he was an illegal over-stayer in this country. She is a British citizen.

20. On 9 July 2008 the Claimant applied for entry clearance under paragraph 281 of the Immigration Rules (settlement as a spouse). His application was refused by the Entry Clearance Officer (“ECO”) in Tirana by a decision dated 24 October 2008 (A65-70). The reasons given for that refusal were in summary, that in the view of the ECO:

(a) the Claimant fell to be excluded under paragraph 320(6) of the Immigration Rules because the Defendant had personally directed exclusion as conducive to the public good;

(b) He fell to be excluded under paragraph 320(7A) of the Immigration Rules because he had falsely stated that he had no convictions in any country when that was a false representation in light of his criminal conviction;

(c) He fell to be excluded under paragraph 320 (7B) of the Immigration Rules because he had previously been in breach of UK immigration rules and he did not benefit from any of the exceptions under that paragraph having been removed under the FRS at the Defendant’s expense;

(d) He fell to be excluded under paragraph 320(11) of the Immigration Rules because he had significantly contrived to frustrate the immigration rules by reference to his asylum and immigration history in the UK;

(e) He fell to be excluded under paragraph 320(18) of the Immigration Rules because he had been convicted of an offence that carries with it a term of 12 months’ or more imprisonment and the ECO was not satisfied that there were strong compassionate reasons for his entry into the UK;

(f) He fell to be excluded on the basis that he had not satisfied the requirements of paragraph 281 (iii) of the Immigration Rules because he had not established that he had lived with or intended to live permanently with his spouse.

21. The Claimant was entitled to appeal against this decision and contends that he did so, but subsequently withdrew that appeal on 15 June 2009.

22. Instead, he made a further application for entry clearance on 16 July 2009 (again under paragraph 281 of the Immigration Rules) for settlement as a spouse. This second application was refused by the ECO in Tirana by a decision dated 9 November 2009 (A62-64). On this occasion the ECO was satisfied that the Claimant’s application satisfied the requirements of paragraph 281, but nevertheless the ECO refused it:

(a) on the mandatory grounds that the exclusion decision made on 14 June 2008 against the Claimant was still in place; and further

(b) that having considered the Claimant’s application under Article 8, although the decision to refuse would constitute a limited interference with the Claimant’s private and family life, it would be justified and proportionate.

23. Again, the Claimant had a right of appeal which he contends was exercised, albeit that he withdrew the appeal on 29 July 2010.

24. By letters dated 17 June and 25 November 2010, the Claimant’s solicitors, Karis Law, applied to the Defendant for the exclusion decision to be revoked.

25. By a decision dated 28 January 2011, the Defendant refused to revoke the exclusion decision for the reasons set out there (A41-43). Following receipt of this decision, the Claimant made this application for judicial review and wrote again to the Defendant (by letter dated 20 June 2011) following the birth of his son on 26 May 2011.

26. As a result of the Claimant’s apparent change of circumstances and in light of the additional representations, the Defendant gave further detailed consideration to the Claimant’s case and issued a further decision by letter dated 10 February 2012 (DAB 20-28) which supplemented the earlier decision. These two decisions form the subject-matter of this judicial review challenge.

The Legislative framework

27. The Immigration Act 1971 ("the 1971 Act") provides by section 1(2) that persons not having the right of abode may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by the 1971 Act.

28. By section 1(4), the rules laid down by the Secretary of State as to the practice to be followed in the administration of the Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admission (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) of persons coming for various purposes.

29. Section 3(1) provides that, except as otherwise provided by or under the 1971 Act, where a person is not a British citizen he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, the Act; he may be given leave to enter (or, when already there, leave to remain) either for a limited or for an indefinite period; and if he is given limited leave to enter or remain, it may be given subject to conditions restricting his employment and studies in the United Kingdom.

30. Provision is made in section 3(2) for the laying before Parliament of the rules made by the Secretary of State (generally referred to as the Immigration Rules):

"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached to different circumstances ….

If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying …, then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution …."

31. By section 3(5) of the 1971 Act: “A person who is not a British citizen is liable to deportation from the United Kingdom if – (a) the Secretary of State deems his deportation to be conducive to the public good; or ...”

32. Section 4(1) provides:

“The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State…….”

33. Section 5 of the 1971 Act sets out the procedure for and provisions relating to deportation as follows:

(1) “Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.

(2) A deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes [a British citizen].”

34. Section 33(1) states that “immigration rules” means “the rules for the time being laid down as mentioned in section 3(2) above”.

35. In addition to these powers, Schedule 2 to the 1971 Act contains detailed “administrative provisions as to control on entry etc”. Para 1(3) of Schedule 2 provides:

“In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State, and medical inspectors shall act in accordance with such instructions as may be given them by the Secretary of State……”

36. The significance of section 3(2) of the 1971 Act in relation to the status of the Immigration Rules, and the extent to which the rules may be qualified or supplemented by policies which have not been laid before Parliament, is at the heart of the decisions in R (Alvi) v SSHD [2012] UKSC 33 and R (Munir) v SSHD [2012] UKSC 32.

37. The following principles emerge from the Supreme Court judgments in these cases:

(a) The 1971 Act is to be seen as the source of all the powers vested in the Secretary of State to control immigration previously exercised under the prerogative. For all practical purposes, the 1971 Act gave statutory force to all the prerogative powers previously exercised in this field (save only in respect of enemy aliens where the prerogative power is expressly preserved by the 1971 Act).

(b) It is still open to the Secretary of State to grant leave to enter or remain to a foreign national person whose application does not meet the requirements of the Immigration Rules, but this power derives from the 1971 Act and not the prerogative. Her discretion under section 3 of the 1971 Act to control the grant and refusal of leave to enter or to remain is wide.

(c) The power to make rules relating to the grant/refusal of leave to enter and remain is vested in the Secretary of State by the 1971 Act. It is for the Secretary of State to determine the practice to be followed in the administration of the 1971 Act, but given that the 1971 Act is the source of those powers, it is not open to her to exercise them in a way that is not in accordance with the rules she has laid before Parliament.

(d) Section 3(2) requires statements of the rules, and of any changes to the rules, as to the practice to be followed in the administration of the 1971 Act for regulating the control of entry into and stay in the United Kingdom of people who require leave to enter, to be laid before Parliament.

(e) For these purposes, any requirement which, if not satisfied will lead to an application for leave to enter or to remain being refused, is a rule within section 3(2) and must be laid before Parliament.

(f) The 1971 Act also empowers the Secretary of State to issue instructions or guidance to assist decision makers in the exercise of discretion, but without compelling a particular outcome. There is no obligation on the Secretary of State to lay such instructions or guidance before Parliament. But, the less flexibility inherent in the instructions or guidance, the more likely it is to be regarded as a statement “as to the practice to be followed” within the meaning of section 3(2) of the 1971 Act, requiring it to be laid before Parliament.

38. So far as appeals against immigration decisions are concerned, the relevant legislation is contained in the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”):

39. Section 82 provides:

(1) “Where an immigration decision is made in respect of a person he may appeal [to the Tribunal].

(2) In this Part “immigration decision” means –(a) refusal of leave to enter the United Kingdom,(b) refusal of entry clearance ...”

40. Section 98 provides:

(1) “This section applies to an immigration decision of a kind referred to in section 82(2) (a) or (b).

(2) An appeal under section 82(1) against an immigration decision may not be brought or continued if the Secretary of State certifies that the decision is or was taken— (a) by the Secretary of State wholly or partly on the ground that the exclusion or

removal from the United Kingdom of the person to whom the decision relates is conducive to the public good, or

(b) in accordance with a direction of the Secretary of State which identifies the person to whom the decision relates and which is given wholly or partly on that ground.

(3) In subsection (2) (a) and (b) a reference to the Secretary of State is to the

Secretary of State acting in person.

(4) Subsection (2) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1) (b) and (c).

(5) Subsection (2) does not prevent the bringing of an appeal against an immigration

decision of the kind referred to in section 82(2) (a) on the grounds referred to in section 84(1) (g).”

41. In this case, the Defendant has not made any certification decision under Section 98 of the 2002 Act.

42. Indeed, the applications made for entry clearance by the Claimant on 9 July 2008 and 16 July 2009 were met with refusals of entry clearance expressly referring to his right to appeal – see pages A70 and A63 respectively. The Claimant did in fact exercise his

right to appeal but withdrew on each occasion. So no question of certification under section 98 of the 2002 Act arises in this case.

43. However, because the ECO refused entry clearance under paragraph 320(6) of the Immigration Rules (on the grounds that the Defendant had personally excluded the Claimant) in any appeal against the ECO’s decision, the merits of the exclusion decision itself could not have been challenged – the only avenue for a direct challenge to the exclusion decision would be by way of judicial review. Rather, in an appeal the Claimant could have challenged the merits of the refusal decision itself, for example on human rights grounds or on the basis of some error or mistake made by the ECO.

I The “Alvi” ground

44. The Secretary of State's power to refuse an entry visa, or to revoke an existing entry visa, on the grounds that exclusion is “conducive to the public good” is referred to specifically in rule 320(6) of the Immigration Rules, which includes in a list of grounds on which entry clearance or leave to enter “is to be refused”:

“(6) where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good;”

45. Although expressed in a number of different ways, both orally and in the Further Submissions document, the essence of the case advanced by Mr de Mello on the Claimant’s behalf by reference to Alvi is that the Defendant has no residual power to exclude the Claimant in a way which is not covered by the Immigration Rules or the 1971 Act. She may have residual power to grant a benefit to an individual but she has no residual power to impose a detriment. Moreover, since the practice adopted for making exclusion decisions (and for refusing to revoke exclusion decisions) is not set out in the Immigration Rules, the decisions were unlawful, in that there is no power under the 1971 Act to operate such a practice or, if there is such a power, the relevant requirements have to be included in rules laid before Parliament pursuant to section 3(2) of the 1971 Act and cannot lawfully be contained in practice or guidance outside the rules.

46. I cannot accept these arguments. Paragraph 320(6) of the Immigration Rules undoubtedly assumes the existence of a practice or power to exclude, but the power itself derives from the general powers of the 1971 Act rather than from any specific authorisation in the rules themselves.

47. The focus of sections 1 and 3 of the 1971 Act is on the control of entry into and stay in the UK by those without the right of abode in the UK, conferring powers to exercise such control in the broadest terms. The 1971 Act also empowers the Secretary of State to give instructions to immigration officers (who exercise functions under the Act) that are not inconsistent with the Immigration Rules: Schedule 2 paragraph 1(3). These provisions are amply wide enough to confer the necessary power on the Secretary of State to make an exclusion decision in respect of a foreign national who is outside the UK. Furthermore, given the terms of paragraph 320 (6) of the Immigration Rules, it cannot be said that the making of such a decision is inconsistent with the Immigration Rules. To the contrary, the Immigration Rules expressly envisage that the Secretary of State may personally make a decision that exclusion of a person is conducive to the public good.

48. Further, there is nothing in the judgments of the Supreme Court in Alvi and Munir that suggests that the Immigration Rules must themselves spell out in detail the circumstances when a decision to exclude will be revoked. Alvi and Munir require no more than that when guidance is issued on how a discretion within the Immigration

Rules is to be exercised, and where that guidance contains a requirement that compels a particular outcome (as opposed to simply advising or recommending that particular factors be considered) then that requirement is a rule for the purposes of section 3(2) of the 1971 Act and must be laid before Parliament to be effective.

49. Nor has Mr de Mello identified any rule or guidance on how the Defendant’s power to exclude (or revoke exclusion) on conducive grounds should be exercised. This is unsurprising given the inevitably fact specific nature of such decisions.

50. Mr de Mello referred me to the Criminal Casework Directorate (“CCD”) Process Communication 18/06 (B27-30) which sets out guidance in relation to exclusions. The guidance is provided to all staff working in the CCD and was issued on 1 December 2006. It is common ground that the guidance was not laid before Parliament.

51. However, the CCD guidance is not directed at the Secretary of State’s exercise of power. It is guidance directed to officials of the CCD on which cases to refer to the Defendant for personal decision.

52. In any event, even if it were directed at the Defendant, nothing in the guidance document compels a particular outcome in a particular case: it does not state that every foreign national prisoner meeting the criteria for deportation who leaves under the FRS must be excluded. The CCD guidance states that a “major area(s) of future use” of the exclusion power is the case of foreign national prisoners who have taken up the offer of assistance and who have left the country as part of the FRS. But it does not state that every foreign national meeting the criteria for deportation who leaves under the FRS will or must be excluded. On the contrary, the document provides that the Defendant acting in person must:

“decide whether the person’s presence in the United Kingdom is conducive to the public good to reach this decision. In doing so he must act reasonably, proportionately and consistently. The submission should set out what it is that makes the person’s presence in the UK undesirable eg. Unacceptable Behaviour grounds, serious criminality, national security, relations with a third country/rule of law cases.”

That the Defendant’s consideration of the Claimant’s case encompassed consideration of the wider circumstances of the Claimant’s case than simply the offence of which he had been convicted, is demonstrated by the document annexed to the submission presented by the Director of the CCD to the Defendant in order to assist the decision-making process (DAB 16). Annex A included a column for identification of any “compelling” and/or “compassionate” circumstances in his case. None was in fact identified, and the Claimant has not pointed to any such circumstance that ought to have been taken into account in 2008 but was not, save insofar as he relies on an alleged mistake of fact that is said to vitiate this decision and is dealt with below.

53. Accordingly, the Defendant’s discretion in relation to exclusion is not constrained by guidance, but is constrained by the 1971 Act and Immigration Rules, in that it must be used to promote the policy and objects of the 1971 Act, and must be consistent with the Rules. There is no basis for arguing, still less concluding that the exercise of discretion in this case was inconsistent with either.

54. It is undoubtedly the case that where the Defendant has directed that a person’s exclusion is conducive to the public good, that direction compels a particular outcome in a particular case because an immigration officer is then bound to act in accordance

with that instruction by refusing an application for leave to enter in that case. As Mr Staker submits however, this mandatory requirement is contained in paragraph 320(6) of the Immigration Rules which has been laid before Parliament.

55. For all these reasons, in my judgment the Supreme Court judgments in Alvi and Munir do not assist the Claimant in this case.

II Mistake of fact/irrelevant considerations (ground 3)

56. The Claimant contends that the decision to make an exclusion decision in his case was wrongly based on the erroneous belief that a court had recommended his deportation.

57. It is common ground that there was no such recommendation; but the sentencing Judge did not find that the Claimant posed no potential detriment to the country as asserted by the Claimant (see Skeleton Argument at paragraph 5). Rather, the sentencing Judge recognised that the immigration authorities would consider this question upon completion of his custodial sentence; but reached the “close-run” conclusion that the Claimant’s case was not so serious as to mean that he should make such a recommendation himself.

58. Sections 3(5) and 6 of the 1971 Act and paragraph 363 of the Immigration Rules deal with the circumstances where a person is liable to deportation from the UK and make clear that deportation is not limited to cases where deportation is recommended by the courts. A deportation order can equally be made where the Secretary of State deems deportation to be conducive to the public good. Furthermore as already discussed, paragraph 320(6) of the Immigration Rules refers expressly to the power (to be exercised personally by the Defendant) to exclude a person from the UK on grounds that it is conducive to the public good to do so.

59. The CCD Process Communication 18/06 (also referred to above) indicates that the power to exclude was used sparingly until 2006 but would be used more widely where a person convicted of a crime in the UK courts which would meet the criteria for deportation, is outside the UK. Two particular areas of future use are identified: the exclusion of foreign national prisoners who have taken up the offer of the FRS and left under the FRS; and foreign national prisoners who have left without being considered for deportation but whose presence in the UK would not be considered conducive to the public good. The document makes clear that decisions whether to exclude a person are made by the Secretary of State acting in person, on the basis of a submission from a caseworker, which can cluster cases together. Once the decision is made, the exclusion is effective without any need for a notice or order.

60. The contemporaneous documents indicate how the Claimant’s immigration status was addressed following his conviction. The relevant Case Record Sheet (DAB 1-2) has an entry for 5 February 2008 recording that the Claimant’s case meets CCD criteria “as the subject is a non EEA national sentenced to 12 months or over …”

61. There is an entry for 6 February 2008 that records: “Subject sentenced to 12 months imprisonment for possessing false identity document at Maidstone Crown Court. .... HO file forwarded to CCLAT Liverpool to consider deport action.”

62. It is apparent from this document that consideration of deportation was based on the Claimant’s 12 month sentence and not on any erroneous belief that he had been recommended for deportation by the sentencing Judge.

63. The case was allocated on 11 February 2008 and on 14 February 2008, the Claimant was met and stated that he wished to return voluntarily under FRS. The entry records:

“... will arrange sub to sign disclaimer, take photos and complete Bio-data, send all to FRS....”. Deportation action did not therefore follow as the Claimant left voluntarily under FRS on 1 May 2008.

64. The next entry indicates that the file was kept to consider for exclusion (DAB 2: top of page - “File kept to consider for exclusion.”). There is no doubt that the Claimant’s circumstances met the criteria for consideration of exclusion within the terms of the CCD Process Communication – he was a foreign national prisoner who left the UK as part of the FRS.

65. The entries for 19 and 20 May read:

19 May: “Subject fits CCD criteria for consideration of exclusion due to being recommended for deportation by the courts. Submission emailed to CCD secretariat; file in awaiting exclusion hold” (emphasis added)

20 May: “Subject accepted for exclusion by secretariat on 4 June 2008.”

66. There is no dispute that the entry for 19 May was in error. The Claimant had not been recommended for deportation by the courts. However, given that the Claimant’s actual circumstances met the criteria for consideration of exclusion within the terms of the CCD Process Communication (as a foreign national prisoner who left voluntarily under the FRS), I am quite satisfied that the error would have made no difference to the decision to refer his case for consideration of exclusion, as Mr Atif Noon states at paragraph 10 of his witness statement (DAB 6-9).

67. As a result of the Claimant being identified as suitable for exclusion, his name was added to a spreadsheet of individuals recommended for exclusion – DAB 17 – and attached as Annex A to a submission dated 23 May 2008 – DAB 16, from the Director of the CCD to the Defendant. The material parts of the submission are as follows:

“Issue – Whether or not to exclude those whose details appear at Annex A from the United Kingdom in the light of their criminal convictions.

Timing – Pressing. ....

Recommendation – That in view of each of the individuals’ convictions, you agree that their presence in the UK would not be conducive to the public good and that you agree that they be excluded.”

68. Annex A has seven columns, and I was told (and there is no dispute) that these were headed as follows: name, country of origin, nature of conviction, compassionate circumstances, compelling circumstances, and whether the individual left under the FRS or otherwise. The Claimant was listed as from the Republic of Serbia, with a criminal conviction for “false instrument”; no compelling or compassionate circumstances; and having left under the FRS.

69. By emails dated 3 and 4 June 2008 (DAB 18) the Defendant communicated his approval of the submission, and that exclusion decisions had been made in relation to the list at Annex A, including the Claimant.

70. Following that decision, by letter dated 14 June 2008, the Claimant was informed that his exclusion had been directed by the Defendant personally on the ground that his

presence in the UK would not be conducive to the public good “for reasons of criminality, specifically your criminal conviction for Possession & or use of False Instrument.” (DAB 19).

71. It is clear from these documents that:

(a) The caseworker who made the erroneous entry for 19 May was not the Director of CCD who made the exclusion recommendation.

(b) There is no evidence that the Director made his recommendation based on this or any other error. Indeed, the issue he put forward for the Defendant to consider was expressly whether exclusion was appropriate in light of the criminal convictions of those listed and not by reference to recommendations (if any) made by the courts.

(c) The Director’s recommendation also makes reference only to convictions and not to any recommendations by the courts.

72. The overwhelming conclusion from the contemporaneous documents summarised above is that the Defendant based his decision on the Claimant’s criminal convictions and not on any erroneous belief or understanding that a court had recommended deportation in the Claimant’s case.

73. Furthermore, contrary to the Claimant’s contention at paragraph 9 of his Skeleton Argument, there is no evidence on which to conclude that the Defendant was misled into thinking or understanding that the Claimant had been recommended for deportation by the sentencing Judge when refusing to revoke the exclusion. In my judgment the reference in the decision letter of 28 January 2011 (A41) to the “conviction which led to his deportation” is a mere slip, and cannot bear the weight accorded to it by the Claimant. The letter summarises in a number of places what happened at Maidstone Crown Court (second paragraph on A41, third paragraph on A42) and these summaries are accurate and make no reference whatever to any recommendation for deportation. There is nothing further in the decision letter, or in the documents that were in fact before the Defendant, to support the assertion that the refusal to revoke the exclusion depended in any way on a false understanding that the Claimant had been deported.

74. Accordingly, the mistake made in the 19 May entry was not material to the Defendant’s decision, in this case. There is no evidence that it was communicated to the Defendant at that time or had any effect on the Claimant’s treatment; nor that it was relied on in any way when refusing to revoke the exclusion. In the circumstances this ground fails.

III Whether the decision was made inappropriately in reliance on the first limb of paragraph 391 HC 295 whereas the Claimant’s case should have been assessed under paragraphs 320 (18) and (19) (ground 4)

75. This ground is dealt with at paragraphs 47 to 49 of the Summary Grounds and 12 to 26 of the Claimant’s Skeleton (much of which repeat points made in relation to ground 3, or to grounds in respect of which permission was refused). In essence, the Claimant contends that the Defendant is misusing a non-statutory power to achieve a purpose outside the objects of the 1971 Act, by refusing to revoke the exclusion decision in reliance on his voluntary departure under the FRS, the disclaimer he signed, and the fact that his convictions are not yet spent under the Rehabilitation of Offenders Act 1974 and would not be spent until June 2018.

76. Paragraph 391 of the Immigration Rules provides that in the case of an applicant who has been deported following conviction for a criminal offence, continued exclusion

(i) “In the case of a conviction which is capable of being spent under the Rehabilitation of Offenders Act 1974, unless the conviction is spent in less than 10 years, 10 years have elapsed since the making of the deportation order; ....will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State. The passage of time since the person was deported may itself amount to such a change of circumstances as to warrant revocation of the order.”

77. For the reasons already set out, the Defendant’s power to exclude derives from the 1971 Act. Its exercise must be conducive to the public good, and consistent with the policy and objects of the Act and the Immigration Rules. Neither the 1971 Act, the Immigration Rules, nor any guidance prescribes particular criteria that must be applied in determining whether to revoke an exclusion decision. Each revocation decision is to be dealt with on its own particular facts, having regard to the reasons for the exclusion, the circumstances of the individual concerned including any change in circumstances, and must be considered consistently with the policy objects of the 1971 Act, and consistently with the Immigration Rules themselves. But (unlike exclusion decisions) revocation can be dealt with by Executive Officers and need not be considered personally by the Defendant.

78. In the circumstances and absent specific criteria, it seems reasonable and rational for the relevant decision-maker faced with an application to revoke an exclusion decision to consider and apply criteria analogous to those applicable to revoking a deportation order at paragraph 391of the Immigration Rules. That is what happened in this case.

79. The parallels between exclusion and deportation following criminal conviction are obvious. In a deportation case, the individual is generally prevented from returning for 10 years (paragraph 391). For those leaving under the FRS, there is no logical reason why a person who could expect to be deported but chooses to go voluntarily with assistance, should expect in ordinary circumstances, to be permitted to return any earlier. An individual threatened with deportation can remain and make representations as to why deportation should not be ordered; or if it is ordered, can stay and appeal. The FRS provides the benefit of assistance with a voluntary departure, in return for waiving those rights. Having waived those rights and left, it is hard to see why such a person could or should have any reasonable expectation of being able to apply to return immediately or in a period less than would be expected where a deportation order had been made.

80. The Claimant was served with a notice indicating his liability to be deported. He could have remained and sought to resist deportation. Instead he chose to leave under the FRS. He signed the waiver voluntarily, and acknowledged by signing, his understanding that he might be excluded following his voluntary departure.

81. Had he been deported he would have been prevented from returning to the UK for a minimum of ten years. There is no reason why he should avoid a similar consequence by departing voluntarily under the FRS. The Claimant has not identified any representation in published policy or statements made to him that could or would have

led to the belief that he would not be excluded following his departure. The reverse is in fact the case: he was warned that exclusion could follow.

82. For these reasons, in refusing to revoke the exclusion the Defendant was entitled to have regard to the fact that the Claimant left voluntarily under the FRS rather than staying to resist deportation; that he signed the disclaimer referred to; and that his convictions were not spent. There was nothing unlawful in this approach.

IV Whether the decision breached the Claimant’s Article 8 rights (ground 5)

83. Mr de Mello submits that the refusal decisions failed to address the best interests of the Claimant’s child who has always lived with his mother and maternal grandparents in the United Kingdom; and that inadequate credit was given for the fact that the Claimant had satisfied the genuine marriage criteria. For these reasons, it is argued, the Defendant’s decisions breached the Claimant’s Article 8 rights.

84. I cannot accept this submission. The 10 February 2012 decision letter, which supplements the earlier 28 January 2011 decision, expressly addressed the Claimant’s Article 8 rights, giving detailed consideration to the proportionality of any interference with private or family life and to the question of the best interests of the child. Moreover, although paragraph 281 of the Immigration Rules is not referred to, there is nothing in either letter to suggest that the Claimant’s marriage was not regarded as genuine.

85. The 10 February letter recognises the difference between exclusion and deportation, and that the Claimant could not have been deported once he had left the UK voluntarily when deportation was threatened, but that he did so having signed a disclaimer reflecting the fact that he understood that exclusion was possible. The letter makes clear that a decision to revoke exclusion should be considered in the light of all the circumstances (paragraphs 17 to 24).

86. Having dealt with the question whether Article 8 was or might be engaged, at paragraphs 37 (a) to (p), the letter addressed the proportionality of any interference with private or family life, concluding that a refusal to revoke would not be disproportionate in this case.

87. At paragraphs 38 to 47 of the letter the best interests of the child are expressly addressed: the letter concludes that the best interests of the child are outweighed by the cumulative effects of other relevant and material considerations in this case.

88. Importantly, the letter sets out at paragraph 45 the fact that the Claimant’s wife has a choice – she can go to Albania with the child and join the Claimant; or she can remain in the UK, visiting Albania as she has done in the past, and in circumstances where the Claimant has never lived with the child in the UK. The grandparental relationship was expressly considered in the context of this choice. Given that the Claimant married his wife after leaving under the FRS and having signed the disclaimer recognising the possibility of exclusion, he must at the time of his marriage, have contemplated the possibility that they would have to live apart.

89. In my judgment, the conclusions reached by the Defendant in relation to the Claimant’s Article 8 rights were justified by the facts of his case and there was no infringement of his Article 8 rights by the Defendant’s decisions.

V Whether there was a failure to provide adequate reasons (ground 7)

90. This ground was not pursued orally. In light of the detailed consideration given to these questions in the letter of 10 February 2012 which extends to nine closely typed pages, there was no such failure.

Conclusion

91. For all these reasons, the application fails and is dismissed.