SB (Bangladesh) v Secretary of State for the Home Department: CA 31 Jan 2007

A Bangladeshi woman entered into an arranged polygamous marriage in Bangladesh and many years later dishonestly (led by her husband) obtained entry clearance as a visitor before then unsuccessfully seeking leave to remain as being financially dependent upon a daughter settled here. She was anxious to continue enjoying access rights to her younger son here. The AIT dismissed her appeal, taking the view that there was ‘no reason why a properly structured application under [the relevant rule] should be refused by an ECO. After 12 months the appellant would be entitled to make an application for indefinite leave to remain in the UK under [the rule], since [her son] would still be under 18 at that time.’ In those circumstances the tribunal did not think it disproportionate to return the appellant to Bangladesh to apply for entry clearance there.
Held: Her appeal was allowed and the case remitted to the tribunal. The tribunal ‘should not have carried out, or taken into account, their own assessment of her prospects of coming back to the UK on an indefinite basis pursuant to an application which she might make from Bangladesh for entry clearance under the immigration rules.’ The fact that the appellant ‘only just failed to qualify for admission’ was a fact to be counted in her favour.
Ward LJ said: ‘It would . . seem somewhat paradoxical if the stronger an appellant’s perceived case for entry clearance under the immigration rules the more likely he or she is to be removed. Yet . . on the basis of the reasoning of the tribunal in this case, that would be the inevitable consequence.’
Ward, Neuberger and Gage LJJ
[2007] EWCA Civ 28
Bailii
England and Wales
Citing:
CitedRegina (Yaser Mahmood) v Secretary of State for Home Department Admn 9-Aug-2001
The Home Secretary had served notice that the applicant was an illegal immigrant, and liable to deportation. An order had been made for the cross examination of the applicant. He had come to England to study, but soon dropped his immediate plans. He . .
CitedEkinci, Regina (on the Application of) v Secretary of State for the Home Department CA 17-Jun-2003
The appellant, a Turkish citizen entered illegally and claimed asylum. He falsely said he had not sought asylum in another EC country. He had lived in Germany for eight years, and had twice unsuccessfully claimed asylum. Shortly after arrangements . .
CitedChikwamba v Secretary of State for the Home Department CA 16-Nov-2005
The claimant was ordered to return to Zimbabwe to make her asylum claim from there. She argued that it would infringe her human rights. She now had a young daughter here. The IAT had dismissed her appeal on the basis that the appellant could and . .
Dicta approvedLekstaka, Regina (on the Application of) v Immigration Appeal Tribunal and Another Admn 18-Apr-2005
Collins J said: ‘one is entitled to see, whether in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter.’ . .

Cited by:
CitedChikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .
CitedPatel and Others v Secretary of State for The Home Department SC 20-Nov-2013
The court was asked as to the respective duties of the Secretary of State and the First-tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, and more particularly as to the . .

These lists may be incomplete.
Updated: 01 February 2021; Ref: scu.248321