Betty Susan Kabaghe v The Secretary of State for the Home Department

A person who has remained in the United Kingdom after leave has expired is liable to administrative removal under section 10 whether or not they knew that their leave had expired. Knowledge may nevertheless be highly material to the discretionary decision whether removal is justified.

Before making a removal decision, the Secretary of State must consider the relevant factors in paragraph 395C of the Immigration Rules HC 395. A decision which does not demonstrate that consideration and an exercise of discretion is not in accordance with the law. The statutory appellate jurisdiction also requires examination of procedural fairness. Where an apparently credible account of unfair treatment is advanced, the respondent should provide evidence of the decision-making process and relevant considerations.

The appellant, a Malawian national, appealed from the First-tier Tribunal’s dismissal of her out-of-country appeal against a decision to remove her from the United Kingdom. Her earlier appeal against refusal of further leave had been dismissed, but she maintained that she had not received notice of that decision and therefore did not know that her leave had expired.

She was arrested after reporting a theft to the police, detained and removed to Botswana. In her appeal she alleged that the removal decision was unlawful and unfair. The First-tier Tribunal held that she had no valid ground of appeal and could not rely on human rights grounds after removal.

The Upper Tribunal considered the scope of liability to removal, the requirement to consider paragraph 395C of the Immigration Rules HC 395, the limits on an out-of-country human-rights appeal, and the duty of fairness in immigration decision-making.

1. Appeal allowed. The First-tier Tribunal made a material error of law by treating the existence of a power to remove as determinative. Its decision was set aside and the Upper Tribunal re-made the decision, allowing the appeal because the removal decision was not in accordance with the Immigration Rules or the law.

2. Liability to removal under section 10(1) of the Immigration and Asylum Act 1999 depends on the fact that a person remained without leave. It does not require proof that the person knowingly overstayed. Lack of knowledge may, however, be a material factor in the discretion whether, and when, to remove.

3. Paragraph 395C required consideration of all known relevant factors before removal. The respondent conceded, and the Tribunal held, that there was no record or evidence that those factors had been considered. The appellant’s credible account that she had not received notice of the earlier appeal decision was itself a material compassionate consideration. Following EO (Turkey) [2007] UKAIT 62, the absence of demonstrated consideration made the decision unlawful.

4. The Tribunal further held that an appeal on human-rights grounds could not ordinarily be pursued from abroad following administrative removal. The statutory exceptions depended on a qualifying human-rights or asylum claim made before removal, or certification as clearly unfounded.

5. The statutory jurisdiction to decide whether an immigration decision is in accordance with the law includes common-law fairness. A judge must understand and assess the case advanced by an unrepresented appellant. Where a credible allegation of unfairness is made, the respondent should identify the facts and considerations underlying the decision. The Tribunal also observed that the detention decision appeared to rest on inaccurate and irrelevant considerations, but held that damages for any unlawful detention required separate proceedings.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s determination for material error of law, and re-made the decision by finding the removal decision unlawful.
• First-tier Tribunal (Immigration and Asylum Chamber): On 27 January 2011, dismissed the appellant’s out-of-country appeal against the removal decision.