Baig v Secretary of State for the Home Department

Factual and Procedural Background

The case concerns a family composed of a husband, a wife, and their four children, with particular focus on two children born in 1995 and 1997 respectively. The husband had a history of unlawful presence in the United Kingdom, including entry using false passports and absconding from enforcement action. The family had resided in the UK for several years without regularising their immigration status. The husband faced deportation proceedings which he challenged through judicial review, relying on a policy commonly referred to as the "seven-year policy," concerning the removal of children resident in the UK for seven years or more and the contingent protection of their family members.

The wife subsequently made separate asylum and human rights claims, also invoking the seven-year policy. The adjudicator dismissed these claims, finding the family had behaved dishonestly and that there was no risk of persecution upon return to their country of origin. The adjudicator did not consider the seven-year policy substantively due to procedural defects in the appeal grounds, a point later conceded as an error.

The Immigration Appeal Tribunal (IAT) granted permission to appeal on the basis that the adjudicator should have considered the seven-year policy and related proportionality issues under Article 8 of the European Convention on Human Rights. However, the IAT found the appeal misconceived due to misleading submissions and inadequate representation. The case was brought to the Court of Appeal on an application for permission to appeal against the dismissal of the wife's claims and the handling of the seven-year policy.

Legal Issues Presented

1. Whether the adjudicator erred in failing to properly consider and apply the seven-year policy in assessing the family's immigration status and removal.
2. Whether the adjudicator and the Immigration Appeal Tribunal correctly applied principles of public law, including the requirement to consider government policy and proportionality under Article 8 of the European Convention on Human Rights.
3. Whether the procedural defects in the appeal grounds justified dismissal without substantive consideration of the seven-year policy.
4. The appropriate remedy if an error of law was found in the adjudicator's or Tribunal's handling of the policy.

Arguments of the Parties

Appellant's Arguments

• The adjudicator failed to properly consider the seven-year policy, which should have been applied to the family's circumstances, especially given the children's long residence in the UK.
• Reliance was placed on the public law principle from the Abdi case that an administrator must properly consider their own policy.
• The policy, as clarified by a Parliamentary statement in 1999, created a strong presumption against removal of children resident for seven years or more, requiring exceptional circumstances to override it.
• The adjudicator's procedural refusal to consider the policy was an error of law, warranting remittance for proper application.

Respondent's Arguments

• The seven-year policy had been substantively considered by the Secretary of State prior to the adjudicator's decision, and the adjudicator's failure to address it was not material given the facts.
• The family's history of deception, absconding, and delay justified enforcement action despite the children's residence.
• The submissions before the Tribunal and adjudicator were misleading and inadequate, undermining the appellant's position.
• Even if there was an error, a rational adjudicator applying the policy would have concluded that enforcement action was appropriate, so remittance was unnecessary.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged that the adjudicator erred procedurally by declining to consider the seven-year policy due to defects in the appeal grounds. The Court also accepted that the policy had been substantively considered by the Secretary of State prior to the adjudicator's decision, although confusion existed regarding which family member's application it related to.

The Court considered the submissions regarding the policy's content, noting the original 1996 policy and the 1999 Parliamentary statement which lowered the relevant residence period from ten to seven years and introduced a presumption against removal of children resident for seven years or more, subject to exceptions.

Applying the policy to the facts, the Court found multiple factors weighing strongly in favour of enforcement action: prolonged unlawful residence of the parents, deliberate delay and evasion of removal, absence of leave to remain when children were conceived, and a history of deception. These factors justified overriding the presumption in the policy.

The Court rejected the appellant's argument for remittance, concluding that a rational adjudicator applying the policy would inevitably reach the same conclusion to refuse leave to remain and proceed with removal. The Court emphasized the importance of full and frank representation and noted the misleading nature of the appellant's submissions.

Holding and Implications

The Court DISMISSED the application for permission to appeal.

The direct effect is that the adjudicator's original decision dismissing the family's claims and upholding removal stands. No remittance to the adjudicator is ordered, as the Court found that proper application of the policy would not alter the outcome. The Court imposed costs against the appellant payable to the respondent, to be assessed by a costs judge.

No new precedent was created; the decision reinforces the principle that immigration enforcement policies must be applied consistently with public law standards, but that dishonest conduct and deliberate evasion can justify enforcement despite residence-based protections.