TE challenged the Tribunal’s application of paragraph 395C of the Immigration Rules in her case. It held the “Tribunal is in some respects [carrying] out a balancing exercise to ascertain whether the facts are such that the appellant should be permitted to remain.” Paragraph 395C is one of the Immigration Rules made by the Secretary of State under the power given to her by s3 of the Immigration Act 1971. Paragraphs 395A, 395B, 395C of the Immigration Rules are as follows:
395A. A person is now liable to administrative removal in certain circumstances in which he would, prior to 2 October 2000, have been liable to deportation.
395B. These circumstances are set out in section 10 of the 1999 Act. They are:
(i) failure to comply with a condition attached to his leave to enter or remain, or remaining beyond the time limited by the leave;
(ii) where the person has obtained leave to remain by deception; and
(iii) where the person is the spouse civil partner, or child under 18 of someone in respect of whom directions for removal have been given under section 10.
395C. Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State including:
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person’s behalf.
In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account.
TE contended that unlike under Article 8 ECHR in which respect for family and/or private life is weighed against the objective of effective immigration control, “in considering [the] circumstances under paragraph 395C there is no requirement for a “balancing exercise” to be conducted. TE either met the requirements of the rule or not. The Rule itself simply requires that “regard will be had to all the relevant factors known to the SSHD. There is no presumption in favour of removal in paragraph 395C”.
By contrast the SSHD contended that persons relying on paragraph 395C are liable to be removed, and the role of the SSHD and of the Tribunal is to decide whether other relevant considerations, and in particular those listed in that paragraph, lead to the conclusion that despite that liability, they should not be removed which inevitably involves a balancing exercise.
The Court held that the matters listed in 395C are not requirements to be ‘met’. They are matters that are relevant to the making of the decision of whether or not to remove an applicant i.e. factors ‘to which regard must be had.’ Amongst other things, the fact that the matters listed are not exclusive, implies that other factors may weigh both for and against an applicant, demonstrating the listed factors are not requirements to be met or not.
The Court found there is likely to be ‘little difference, if any, between the decision under Article 8 and that under paragraph 395C’, the principal difference being that Article 8 has general application, whereas paragraph 395C applies, at least expressly, only to the decision on removal. The Court observed:
Paragraph 395C is a helpful list of factors to be considered by the decision maker when deciding whether, although the applicant is liable to be removed under section 10, he should not be. That involves considering all relevant factors, whether listed or not, and deciding whether, notwithstanding that the applicant has no right to be here, he should not be removed. If he is not to be removed, normally it will be appropriate to grant leave to remain. This process is not inaptly described as weighing the liability to removal, and thus the maintenance and enforcement of sensible and effective immigration controls, against the largely personal factors which make it appropriate to allow the applicant to remain.
Whilst the Court lamented the rule only implied ‘the manner in which the factors to which it refers are to be used’, and expressed ‘considerable sympathy’ with TE’s circumstances, it held the Tribunal made no error of law in its application of the rule.