Tousif Ahmad a.k.a Touseef Mohammed & Ors v The Secretary of State for the Home Department

For removal under section 10(1)(c) of the Immigration and Asylum Act 1999, a person’s family is confined to the category applicable to deportation: a spouse or civil partner and children under 18. The provision does not authorise removal of an adult son or daughter solely as the family member of a person removable for deception.

The conclusion follows from the legislative history, the serious consequences of administrative removal, and the principle that a power interfering with liberty must be expressed clearly. In any event, the contemporaneous Immigration Rules limited family members to children under 18. Under section 86(3) of the Nationality, Immigration and Asylum Act 2002, a decision inconsistent with that rule had to be allowed on appeal.

Four inter-related Pakistani families obtained visitor entry clearance, then claimed asylum as Indian nationals using false identities and histories. The parents later admitted offences involving immigration deception and benefit fraud. The Secretary of State rescinded refugee status and indefinite leave where granted, and made removal decisions under section 10 of the Immigration and Asylum Act 1999.

A First-tier Tribunal dismissed the family appeals. The Upper Tribunal directed a preliminary issue concerning six appellants who were over 18 when the removal decisions were made and who had leave to remain. The issue was whether section 10(1)(c) empowered their removal as members of the family of parents removable under section 10(1)(b).

1. The six appeals were allowed. The First-tier Tribunal had made an error of law. Its decision was set aside and remade by allowing the appeals of the six adult children.
2. Section 10(1)(c) of the Immigration and Asylum Act 1999 did not empower removal of sons or daughters over 18 as family members of a parent removable for deception under section 10(1)(b). Although family is capable of a flexible ordinary meaning, it must be construed in its statutory context. The legislative history showed that section 10 transferred to administrative removal categories formerly liable to deportation. It did not clearly create a new liability for adult children who could not formerly be deported as family members.
3. The power has serious consequences, including loss of leave and potential detention. In the absence of unequivocal statutory language, the provision had to be construed strictly. The applicable limitation was that in section 5(4) of the Immigration Act 1971, namely a spouse or civil partner and children under 18.
4. Independently, paragraph 395B of the Immigration Rules expressly confined family-member removal to a spouse, civil partner, or child under 18. It was not ultra vires. Under section 86(3) of the Nationality, Immigration and Asylum Act 2002, the Tribunal had to allow an appeal against a decision not in accordance with the law, including the Rules. The Secretary of State could not disapply a rule which she had made and retained.
5. Paragraph 9 of Schedule 2 to the Immigration Act 1971 did not provide an alternative basis for removal. It required leave to enter obtained by deception to be disregarded, but did not extend that consequence to leave to remain. Further action remained a matter for the Secretary of State if there were evidence that an appellant had personally been complicit in deception in obtaining leave to remain.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the six appeals, set aside the First-tier Tribunal decision for error of law, and remade the decisions by allowing the appeals.
• First-tier Tribunal (Immigration and Asylum Chamber): dismissed the appeals of the family members, including the six appellants concerned by the preliminary issue.