JS (India) & Ors v Secretary of State for the Home Department

A provision allowing removal directions against a family member of a person subject to immigration directions is not confined to a family member who is independently an illegal entrant. That construction would make the provision otiose. The Secretary of State may use the provision for an overstayer family member, and a possible discretion under another statutory route does not alter its meaning. On a second appeal, a serious statutory construction issue may satisfy the permission threshold, but permission is refused where the provision is straightforward and the appeal has no prospect of success.

The appellants challenged removal directions made following the decision of the Secretary of State. The First-tier Tribunal dismissed an appeal under section 82 of the Nationality, Immigration and Asylum Act, and the Upper Tribunal dismissed the appeal against that decision, promulgating its decision on 16 March 2012.

The renewed application for permission to bring a second appeal concerned the appellants’ family circumstances. The principal appellant had entered the United Kingdom unlawfully, while his wife was an overstayer. The central issue was whether section 10A of the Immigration Act 1971 permitted removal directions against her although she was not herself an illegal entrant.

The Court of Appeal refused the renewed application for permission to appeal. The matter was a second appeal, so the court considered whether the proposed point raised a serious issue of statutory construction and had a sufficient prospect of success.

1. Construction of section 10A. Section 10A of the Immigration Act 1971 permits directions to the same effect to be given in respect of a member of the family of a person against whom directions have been given under the relevant immigration provisions. The reference to a family member is not limited to someone who is independently an illegal entrant. If it were so limited, the provision would be otiose because the family member could already be removed on the basis of their own illegal entry.

2. Overstayer status and alternative powers. The wife’s status as an overstayer, and the possibility that discretion might be exercised in her favour under the alternative statutory route, did not prevent the Secretary of State from acting under section 10A. Those matters could not affect the proper construction of the 1971 Act. The fact that the wife was not herself the appellant was a secondary consideration.

3. Permission to appeal. A serious issue of statutory construction would satisfy the second appeal test. This point did not meet that description. The statutory language had a straightforward construction and there was no prospect of the appeal succeeding. The application was therefore refused.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 125, Lord Justice Elias refused the renewed application for permission to bring a second appeal.
2. Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal against the First-tier Tribunal’s decision; the decision was promulgated on 16 March 2012.
3. First-tier Tribunal: Dismissed the appeal under section 82 of the Nationality, Immigration and Asylum Act against the Secretary of State’s removal decision.