IA (applying policies) Mauritius [2006] UKAIT 00082 (03 October 2006) [2006] UKAIT 00082

UKAIT
IA (applying policies) Mauritius [2006] UKAIT 00082 (03 October 2006)
[2006] UKAIT 00082 · 2006-10-03
[1]IA ('applying policies') Mauritius [2006] UKAIT 00082 ASYLUM AND IMMIGRATION TRIBUNAL Date of hearing: 11 September 2006 Date Determination notified: 03 October 2006 Before Senior Immigration Judge Perkins Senior Immigration Judge Taylor Between IA APPELLANT and Secretary of State for the Home Department RESPONDENT For the Appellant: Mr P Nathan, Counsel, instructed by G. Singh SolicitorsFor For the Respondent: Mr L Parker, Home Office Presenting Officer DETERMINATION AND REASONS It will only be in extremely unusual circumstances that an Immigration Judge can decide properly that an appellant satisfies the requirements of a policy but if such circumstances do occur then the appeal should be allowed because the decision to remove is not in accordance with the law. If, exceptionally, an Immigration Judge is satisfied that a person fulfils the requirements of a policy then it may be correct to allow the appeal on human rights grounds with reference to article 8 because the removal of such a person is not necessary for the purposes of article 8(2). The appellant is a citizen of Mauritius. She was born on 13 th June 1964 and so is now 42 years old. She appeals the decision of the respondent on 15 December 2005 to refuse her leave to remain in the United Kingdom on the basis of her marriage and to give directions for her removal, on the grounds that the decision is contrary to her rights protected by Article 8 of the European Convention on Human Rights and is otherwise unlawful.[2]The grounds of appeal to the Immigration Judge complain that the appellant's husband is "a very sick man" who needs the appellant's support and that the decision is unlawful because the appellant has established family life in the United Kingdom and her removal would be disproportionate to the proper purpose of enforcing immigration control "in view of the physical condition of the husband".[3]The Immigration Judge allowed the appeal "on immigration grounds" and also on human rights grounds with reference to Article 8. We assume that in allowing the appeal "on immigration grounds" the Immigration Judge intended to allow the appeal in respect of the Immigration Rules. Reconsideration was ordered, at the respondent's request, by Senior Immigration Judge Gill on each of the four grounds set out by the respondent in his application.[4]The papers show that the appellant entered the United Kingdom as a visitor on 29 June 2002. She had permission to remain until 24 September 2002. On 23 September 2002 she married a British citizen, [AHJ], at a civil ceremony. Her husband is twenty nine-years her senior. On 25 September 2002 the appellant applied for permission to remain on the basis of that marriage but that application was withdrawn on 22 July 2004. Rule 34 of HC 395 provides that an application for permission to remain in the United Kingdom shall be treated as withdrawn if the applicant requests the return of her passport for the purpose of travel. It was not argued before the Immigration Judge, or before us, that the respondent was wrong to treat the application as withdrawn. The appellant made further applications on 15 August 2004 and 15 November 2004. By then the appellant had overstayed her valid leave but no enforcement action had been taken against her.[5]In a '"Notice of Refusal of Leave to Remain Under the Immigration Acts" dated 15 September 2005 the respondent set out the appellant's immigration history and asserted that by reason of paragraph 284 of HC 395 the appellant was not entitled to an extension of stay under the rules because "you fail to meet at least one of the criteria".[6]The respondent's letter shows that he then considered his policy known as DP3/96 which the respondent recognised may permit the appellant to remain if the marriage is genuine and subsisting, if it predates the service of an enforcement notice by at least two years and if it is unreasonable to expect the settled spouse to accompany his/her spouse on removal.[7]The letter then explains that in the opinion of the respondent the appellant's case did not fall within those guidelines because, "in all the circumstances we are not satisfied that you are living in a genuine subsisting relationship with a British citizen". The letter does not suggest that there was any other reason for refusing the application under the policy.[8]The letter then went on to say that, in the opinion of the Secretary of State, removing the appellant would not be contrary to her rights protected by Article 8 of the European Convention on Human Rights.[9]The determination of the Immigration Judge is very short and sets out little of the evidence before him. However, at paragraph 8 of the determination there are commendably clear findings in the following terms:
"'Since 23.09.04 the appellant and her husband have lived as man and wife at [address] where due to his ill health the appellant now cares for her husband, not only functioning as a housewife but also supervising his medication. I am satisfied that each of the appellant and her husband intends to live permanently with the other."
[10]These findings have not been criticised by the respondent in his grounds and we note that the Immigration Judge reached them after hearing very short submissions on the evidence from an extremely experienced Presenting Officer.[11]The Immigration Judge had before him a report from Dr Saftar Naqvi who is a consultant physician and endocrinologist at the Ashford and St Peter's Hospital in Ashford. We understand this to be a National Health Service hospital and Dr Naqvi is clearly entitled to the respect the Tribunal usually extends to health service consultants. He said of the appellant:
"On examination his blood pressure was 130/70, his thyroid function seemed to be normal, clinically heart sounds were normal and chest was clinically clear. Examination of the feet revealed lack of sensation although the pulses in the feet were normal. I therefore conclude in view of the above that Mr Jain needs a considerable amount of support at home, not only to provide him with food but also at times he needs assistance going up and down stairs and putting drops in his eyes. His wife pays most of the bills as he finds it difficult to walk long distances. It is also quite important to note that he is on near maximum medication and will be heading towards insulin. If that happens, it is extremely unlikely that he would be able to inject insulin in himself and will require assistance. In conclusion, as it becomes obvious from our interview and subsequent examination, that Mr Kailash Jain needs constant support as he is dependent on various activities of daily living and if this support is withdrawn it may be detrimental to his health. I will therefore support the view that his wife should remain with him."
[12]The first ground supporting the application complains that the Immigration Judge made a material misdirection in law in allowing the appeal under the Immigration Rules. The point made is that the appellant made the application that led to this appeal at a time when she was unlawfully in the United Kingdom. She was therefore beyond the scope of paragraph 284 because she could not meet the requirements of paragraph 284(iv) (not remained in breach of immigration rules). It followed that even though the Immigration Judge was satisfied that each of the parties to the marriage intended to live permanently with the other and the marriage was subsisting, and therefore the requirements of paragraph 284(vi) could be satisfied, the full requirements of that rule were not met.[13]The grounds overlook the fact that the appellant did not actually seek to appeal the decision of the respondent on the basis that she was entitled to remain under the Immigration Rules.[14]It is quite plain to us that the appeal should not have been allowed under the Immigration Rules and the Immigration Judge was wrong when he decided otherwise.[15]At paragraph 10 of the determination under the heading 'Decision' the Immigration

Judge made it plain that he was:

"entirely satisfied on the evidence before me that the marriage of the appellant and her husband is genuine and subsisting and that further, on account of the medical evidence before me as to the husband's condition, it would be untenable to expect him to accompany his spouse to Mauritius to make a marriage application from there."
[16]The second ground complains that the Immigration Judge "made a material misdirection in law in allowing the appeal under the Home Office policy". According to the ground:
"'The judge cannot allow the appeal outright under the Policy as the Secretary of State applies this policy at its discretion."
[17]There are several things wrong with this assertion. Firstly, and most importantly, the Immigration Judge did not allow the appeal 'under the Home Office policy'. He allowed the appeal on immigration grounds and he allowed the appeal on human rights grounds. If the Immigration Judge had intended to 'allow the appeal outright under the policy' he would have had to allow the appeal under section 86(3)(a) of the Nationality, Immigration and Asylum Act 2002 on the basis that the decision against which the appeal is brought was not in accordance with the law. That he clearly did not do.[18]Following the decision of SSHD v Abdi [1996] Imm AR 148 it has been clear that an Immigration Judge can decide that a decision is not in accordance with the law. Typically this will arise when the respondent has not followed his own policy even when he was right to dismiss the appeal under the Immigration Rules and, following Abdi , it would normally be right in such circumstances to rule that the application of a policy to the case has not been considered and to allow the appeal to the extent that the issue of the relevance of the policy remains outstanding for the respondent to consider because the decision was not in accordance with the law. However this is not because the Immigration Judge has never had power to allow the appeal outright because the decision is contrary to the law but because it will only be in an unusual case that an Immigration Judge can decide properly that a person meets the requirements of a policy and the only legally proper decision is that the appeal should be allowed outright.[19]Before the introduction of the concept of human rights into the law of England and Wales it is hard to contemplate circumstances in which an the Immigration Judge who found the Secretary of State to have failed to have considered his policy could properly contemplate any other course that that indicated above. Published polices are, in their very nature, in the public domain and should be considered by appellants and their advisors. In our experience they are invariably couched in general terms saying what should usually happen if certain things are established and often incorporate factual requirements that are peculiarly within the knowledge of the Secretary of State, for example, if the appellant has been involved in criminal acts in his time in the United Kingdom.[20]It is plain from Abdi (page 157) that Immigration Judges are not intended to review the decisions of the Secretary of State 'by reference to all the matters that will be relevant for a judicial review of the decision'. If the Secretary of State applies his policy inappropriately then the appellant has a remedy outside the Asylum and Immigration Tribunal.[21]However it is a feature of this case that the Secretary of State has considered his policy and has indicated his reasons for finding that the appellant does not benefit from that policy. He found that the marriage was not genuine and subsisting and it was reasonable to expect the settled spouse to accompany his wife on removal. For perfectly proper reasons that have not been challenged, the Immigration Judge has reached a different conclusion on these two points.[22]We reject Mr Parker's submission that the Immigration Judge's finding that it is unreasonable to expect the appellant's husband to remove with her is unreasoned. It is not detailed but the finding is clear enough and we have referred to the evidence that was before the Immigration Judge. This case is unusual in that the Immigration Judge knows why the Secretary of State found that policy did not apply and has concluded for legally sound reasons that the Secretary of State's reasons for not applying the policy are wrong.[23]We have considered the case of Fouzia Baig v SSHD [2005] EWCA Civ 1246 . There Buxton LJ, at paragraph 28, approved of an argument asserting that, following: "the authority of Huang the question of the application of such a policy to an individual case was a matter for the Adjudicator and not simply a matter for review of the decision of the Secretary of State".[24]He said, at paragraph 29:
"I am content, for the purpose of discharging this application, to assume that there was that omission on the part of the Immigration Appeal Tribunal, and that prima facie, therefore, the correct remedy, and the remedy which Mr Drabble seeks, is for the matter to be remitted to an adjudicator, so that he can properly apply himself, which so far the adjudicator has not done, to the seven year policy."
[25]We appreciate, of course, that Buxton LJ's observations were obiter. The case of Baig concerned a case where, on the facts, a person plainly could not benefit from a policy. Nevertheless they are the considered remarks of a Lord Justice of Appeal and should be given appropriate weight. Where there is a clear and obvious breach of a policy an Immigration Judge can find that the decision is not accordance with the law. However, we emphasise that for the reasons considered previously, it will only be in very unusual circumstances that such a finding can be made properly. Usually the Immigration Judge cannot decide if an appellant satisfies the requirements of a policy because he cannot make the necessary findings either about the scope and operation of the policy or the particular appellant's circumstances. Indeed we suggest that an Immigration Judge should be particularly sceptical about evidence tending to suggest that a person qualifies under a policy when he has not applied under that policy and has not disclosed his evidence (especially evidence about his character) to the respondent well before an appeal hearing.[26]However the substance of a policy is extremely relevant when considering a case under Article 8 of the European Convention on Human Rights.[27]It follows that the Immigration Judge did not err as alleged under ground 2. He did not allow the appeal under the policy although in the very particular facts of this case it would have been hard to have criticised him if he had.[28]Ground 3 complains that the Immigration Judge erred in his Article 8 findings because he did not follow the guidelines in Mahmood [2001] Imm AR 229 . It is convenient to consider here as well ground 4 of the grounds which complain that the Immigration Judge "erred in law in failing to consider the guidelines set in [2005] EWCA Civ 105 Huang v SSHD March 16 th 2005 and in failing 'to give reasons as to how the appellant's case was truly exceptional'.[29]We have reminded ourselves of MB (Croatia) (Huang – proportionality – bulletins) [2005] UKIAT 00092 . This emphasised that the removal would be proportionate to the proper purpose of enforcing immigration control in all but truly exceptional cases where a person was not entitled to remain in the United Kingdom under the rules or the policy. However, this is not a case where the Immigration Judge needed to find truly exceptional circumstances in order to make a sound decision. He found, as he was clearly entitled to do, that removing the appellant would interfere with her protected private and family life, that is her relationship with her husband, and that such removal would be disproportionate not because the circumstances are truly exceptional but because it would be contrary to the respondent's policy. Interference with a person's private and family life is contrary to Article 8 unless it is 'necessary in a democratic society'. It is very difficult to imagine circumstances where removal would be necessary in the case of a person who was entitled under a policy to remain. The Immigration Judge decided that this appellant is such a person and so it is irrelevant that he did not find the facts to be truly exceptional.[30]There is further point. In deciding whether removal is necessary or proportionate an Immigration Judge is entitled to have regard to the policy even if the appellant that he is considering does not benefit directly from the policy. The Court of Appeal said as much in Shkembi v SSHD [2005] EWCA Civ 1592 . Mr Nathan, perhaps a little too modestly, did not refer us to this decision but Latham LJ said at paragraph 15:
"The policy does not strictly apply to the appellant but, nonetheless, Mr Nathan is entitled, it seems to me, to argue that if and insofar as the rationale can be discerned for the policy, the Tribunal can consider whether or not as a consequence the Adjudicator was wrong to conclude that this was merely a concession which the Secretary of State is entitled either to depart from or to require strict adherence to, but goes further than that and justifies the conclusion that this is an exceptional case."
[31]In other words it is necessary in some cases to consider the requirements of a policy in order to consider Article 8. It must flow from this that Immigration Judges will, sometimes, be obliged to consider in some detail how a policy operates and, in very unusual circumstances, to find that in failing to apply his policy the respondent has made a decision that is contrary to the law.[32]It will be helpful if the Secretary of State comes to a hearing prepared to explain how an apparently relevant policy operates and why the appellant does not, or does, come within its scope rather than perpetuating the myth that policy is no concern of the Immigration Judge. It is not the Immigration Judge's place to apply policy but the Immigration Judge needs to understand the respondent's policies in order to consider how a decision impacts on an appellant's protected human rights.[33]It is, perhaps, helpful to conclude by reminding ourselves of the essential facts in this case. The appellant is married to a British national now aged seventy-one years. According to the respondent the appellant was not entitled to remain in the United Kingdom under a policy because the marriage was not genuine and subsisting and it was reasonable to expect the appellant's husband to accompany the appellant in the event of her removal. An Immigration Judge decided that the marriage is genuine and subsisting and it is unreasonable to expect her husband to accompany the appellant in the event of her removal and he allowed the appeal. We find no error of law in that decision.[34]In summary, we say the following. When considering a person's entitlement to remain in the United Kingdom an Immigration Judge is obliged to consider the Immigration Rules and the Secretary of State's known policies but it will only be in very unusual circumstances where an Immigration Judge can decide properly that any decision is contrary to the law because of a failure to follow a policy. In any case where a policy has not been followed, or has not been considered properly, the best course will almost certainly be to allow the appeal to the extent that the Secretary of State is required to consider the application again under his policy because that element of the claim is outstanding.[35]However, when considering a person's human rights an Immigration Judge is obliged to consider the operation of a policy and where, as here, the Immigration Judge concludes that a person is entitled to remain under a policy, the Immigration Judge must go on to conclude that removal would be disproportionate to the proper purposes of enforcing immigration control. In order to make such a finding the Immigration Judge must make findings about the appellant's ability to satisfy the requirements of the policy. In doing that he is not usurping the role of the Secretary of State but, as he is required to do, he is applying his mind to the law.[36]That is what the Immigration Judge did here and he did not err in law in allowing the appeal on human rights grounds. Decision: The original Tribunal erred in law and the following decision is substituted: The appeal in respect of the Immigration Rules is dismissed The appeal is allowed on human rights grounds Signed Date 26 September 2006 Senior Immigration Judge Perkins

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