Hussain v Secretary Of State For Home Department [2004] EWCA Civ 1190

Case No C4/2004/0235[2004] EWCA Civ 1190
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Friday, 30th July 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE POTTER
LORD JUSTICE TUCKEY
Between
SHEIKH SAEED HUSSAINRespondent-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellant
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MS R CHAPMAN (instructed by Messrs Imran Khan and Partners) appeared for Applicant for The Respondent did not appear and was not represented
J U D G M E N T

LORD JUSTICE TUCKEY:

[1]This is an application by Sheikh Saeed Hussain for permission to appeal from a decision of the IAT allowing the Secretary of State's appeal from a Special Adjudicator, who had held that removal of the applicant to Pakistan would amount to a breach of Article 8.[2]The applicant, a 32 year old citizen of Pakistan, entered the United Kingdom illegally in 1995. In 1999 he met and married Shamin Arshid who is now a British citizen. She has four children, now aged about 19, 17, 15 and 13, by a previous marriage. The break-up of that marriage had been acrimonious, and in 1989 the eldest child was kidnapped by his father and taken to Pakistan. Fortunately he was returned and there is an English court order prohibiting the removal of the children to Pakistan. The applicant has a good relationship with the children and there is a consultant psychiatrist's report from Dr Steadman prepared in June 2001 testifying to this and to the fact that the applicant has become a father figure to these children and that removing him would cause psychological harm to them.[3]After his marriage to Shamin the applicant applied for leave to remain as a spouse. This, and a human rights application, were refused by the Secretary of State in 2001.[4]The hearing before the Adjudicator took place in early 2003. After referring to a number of cases the Special Adjudicator said, under the heading "Findings of fact":
"After assessing all the evidence in the case including the report of Dr Steadman, I have no doubts in concluding that to require the appellant to return to Pakistan to seek entry clearance on the basis of his marriage would be disproportionate under Article 8. There are insurmountable problems to the appellant's wife and her children returning to Pakistan with him, not least being the disruption to the children's education. As I am told that the Embassy is now closed there are difficulties in making such an application and it might take anything up to a year. I consider that the disruption that this would cause the family -- particularly because of the past experiences of the children in relation to their natural father -- is not justified."
[5]The Secretary of State's appeal to the Tribunal was on the ground that the Adjudicator had not properly applied Article 8 to the facts of this case. The IAT agreed. They accepted that there was an existing family life between the applicant, his wife and the four children and that the return of the entire family to Pakistan was not possible. They went on to say, however, that they were entitled to take the applicant's immigration history into account. He had entered the United Kingdom illegally and remained here until after he was married. They continued:
"By seeking to remain on the basis of his marriage, we find that he is effectively seeking to queue jump the immigration procedure. While we accept that his removal would interfere with the private and family life he has built up in the United Kingdom, we find nevertheless, that the interference is justified in that it pursues a legitimate aim, which is the exercise of an effective immigration control. "
In the light of Kehinde, it is the human rights of the respondent that we have to consider. Nevertheless the impact his removal will have on his wife and stepchildren can also be looked at. We find, however, that the removal of the respondent would be a temporary interference of their human rights. If the whole family cannot return with him to Pakistan, there is nothing preventing the respondent from returning to Pakistan and making an entry application to join his wife and stepchildren in the United Kingdom. According to information contained in the respondent's bundle, the processing time for settlement applications is 6 months. We do not regard this as an unreasonable delay. Therefore the removal of the respondent does not mean that the break down of the family is inevitable. In that respect we find that the Adjudicator's determination is unsustainable and cannot be upheld."[6]One of the grounds of appeal to this court was that it was not open to the IAT to interfere with the Adjudicator's decision. Following this court's decision in Subesh [2004] EWCA Civ 56, that point is, I think, no longer arguable. As Maurice Kay LJ said, when refusing permission to appeal on paper:
"By describing the applicant's decision as unsustainable the IAT clearly considered that in Subesh terms it was required to adopt a different view."
[7]Insofar as the point remains as one of inadequate reasons, I do not accept it. The IAT clearly disagreed with the Adjudicator because she had failed to balance the need for an effective immigration policy against the interference with the applicant's family life and had simply taken into account the inconvenience to the applicant of having to apply for leave to enter out-of-country.[8]The main ground of appeal argued by Miss Chapman for the applicant this morning relates to the children. To what extent in a case such as this should the Tribunal take into account the impact on other family members? That is a question which has been the subject of various judicial pronouncements, and we are told is to be considered by this court in the case of AC. Miss Chapman argues that the same point arises in this case and so permission to appeal should be granted.[9]I do not agree. In the passage which I have quoted, the IAT correctly say that it is the human rights of the applicant which they have to consider. That is what section 65(1) of the Immigration and Asylum Act 1999 says. But they go on to say:
"Nevertheless the impact his removal will have on his wife and stepchildren can also be looked at."
The decision in AC cannot, I think, produce a more favourable result than that. Miss Chapman says that the IAT did not in fact consider the impact of removal on the other family members. I do not accept this submission. The IAT obviously did consider this; it was what the case was all about.[10]For those reasons I think that permission to appeal must be refused in this case.

LORD JUSTICE POTTER: I agree. Permission is therefore refused.

Order

application for permission to appeal is refused.