BS India [2002] UKIAT 00660 (12 March 2002) [2002] UKIAT 00660

UKIAT
BS India [2002] UKIAT 00660 (12 March 2002)
[2002] UKIAT 00660 · 2002-03-12
[1]BS India [2002] UKIAT 00660 CC-27870-2001 IMMIGRATION AND ASYLUM TRIBUNAL Date of hearing: 23 January 2002 Date Determination notified: 12 March 2002 Before DR H H STOREY (Chair) MR R HAMILTON Between BS APPELLANT and Secretary of State for the Home Department RESPONDENT DETERMINATION AND REASONS A central issue in this appeal concerns whether the option open to a spouse unlawfully in the UK of applying for entry clearance means that a decision to remove him will normally not amount to a disproportionate interference with the right to respect for his family life.[2]The appellant, a national of India, has appealed with leave of the Tribunal against a determination of Adjudicator, Miss M N Lingard, dismissing the appeal against the decision of the Secretary of State refusing leave to enter on asylum grounds and giving directions for his removal to India. Mr D Williams of Counsel instructed by Gherson & Co. Solicitors appeared for the appellant. Mr P Deller appeared for the respondent. The grounds of appeal did not challenge the adjudicator's rejection of the asylum grounds of appeal and leave was granted solely in respect of whether the adjudicator was right to dismiss the appeal on human rights grounds under Article 8.[3]The basic facts of this case are not in dispute. Dealing first with events to the date of hearing, the appellant has lived in the United Kingdom for much of the time since May 1993 when he arrived and made a claim for asylum. Following his marriage to a British citizen in July 1993 he was eventually granted indefinite leave to remain as a husband in 1996. However as a result of allegations made by his wife after their separation in 1996 (to the effect that he had married her for immigration purposes) that leave was revoked in March 1999. The appellant made another asylum application that same month. Following his engagement to another British citizen in July 1999 he made an application for leave to remain as this lady's fiance. However he then separated from her in September 1999. Next he met and married his current wife, each of them marrying as bona fide divorcees on 26 November 1999. The appellant submitted an application for leave to remain as the spouse of a British citizen. The appellant was interviewed by the respondent in respect of both his marriage and his asylum applications in June 2001. In June 2001 leave to enter on the basis of marriage to a British citizen was refused. Since he had no valid leave at that time, no valid appeal lay against that decision. His asylum application was refused several days later.[4]At the hearing the appellant withdrew his asylum grounds of appeal. The respondent accepted that at the time of marriage the couple were free to contract a valid marriage and also conceded that they had a subsisting family life, the couple having lived together since their marriage with her two children from her previous marriage. Save on the issue of whether or not the appellant knew about his wife's gynaecological medical history before their marriage the adjudicator accepted the appellant and his wife as "generally credible".[5]The adjudicator found the couple had established an existing family life. She did not accept, however, that they had shown the decision-refusing asylum amounted to an interference with the right to respect for their family life. That, as both parties agree, was clearly an error. The adjudicator sought to base this conclusion on the principles set out in Nhundu and Chiwera (01TH00613). She correctly noted that in that case the Tribunal said that refusal of an asylum claim would normally constitute an interference with the right to respect for family life but would not do so if there were unusual circumstances. However she incorrectly inferred that unusual circumstances could obtain even when family life was well established. In Nhundu and Chiwera the two appellants, both of whom were over 18, could only point to a very short period of time in the UK and to a relationship here with an aunt only. In the instant case, the appellant had been in the UK save for two relatively short periods back in India since 1993. And the relationships he relied upon were with a wife with whom he had cohabited since their marriage in November 1999 and with two stepchildren who were still minors.[6]Did this error undermine her conclusion that there was no violation of Article 8? In our view it did not.[7]In the first place it did not in fact lead her to fail to address the issue of whether the decision, assuming it constituted interference, was disproportionate. Furthermore, despite the grounds contending otherwise, it did not lead to her failing to reach a reasoned decision on this question. As Mr Williams conceded before us, what the adjudicator in fact did at paragraph 95 of her determination was rely for her conclusion that there was no disproportionality on the same (extensive) reasons she had already identified when finding there was no interference. We see nothing wrong in that.[8]In the second place her conclusion was plainly the right decision on the merits.[9]That is not to say we consider the adjudicator properly analysed this issue correctly in every respect. Ostensibly she followed the approach set out in leading cases in Strasbourg and in the UK of weighing the importance of the right to respect for family life against the legitimate interest of the UK government in maintaining effective immigration control. Thus she plainly accepted there was a validly contracted and subsisting marriage between the appellant and someone who was a British citizen. She recognised that the couple had an existing family life involving the appellant in some degree of care and responsibility for his wife's two children by her former marriage. She accepted the appellant's wife was still partially immobile as a result of the industrial accident she suffered at the beginning of 2000. She accepted the need for some degree of continuing contact between the two children and their UK-based natural father. In considering these factors to be nevertheless outweighed by others, however, she relied in particular on: the appellant's highly dubious immigration history; the evident fact that both the appellant and his wife would have known of his immigration difficulties before marrying; the fact that apart from one sister and her family and of course his wife, all his relations lived in India (as did his wife's); the fact that the children's relationship with their natural father had become less important to them over time; the lack of firm medical evidence to show that the appellant's wife would be unable to travel to India and live there with her children; and the fact that the children had some knowledge of Punjabi and would be able to resume their education in English-speaking schools.[10]However, as she made clear in paragraph 96, this analysis was directed throughout solely to deciding whether there were insurmountable obstacles in the way of the family following the appellant to India. In examining the claim solely in this way she was no doubt influenced by the fact that "in oral evidence...the appellant identified that if he was to return to India, then his wife and stepchildren would join him there".[11]In our view there was a much more immediate and sufficient reason why the asylum refusal decision should have been found proportionate. This was that the appellant had available the viable alternative option of applying in India, the country to which his removal had been directed, for entry clearance as a husband. The need for us to assess this option has become more essential, since, given the evidence Mr William presented on instructions to us, the appellant's wife has no intention to travel abroad at least whilst her children are engaged in studies, leaving unclear what were her intentions at the date of decision.[12]Why do we say the existence of this alternative option defeats any argument based on disproportionality? We say so because, assuming the option was viable, the refusal decision under appeal did not represent any conclusive disruption of the appellant's family life; the appellant was not faced with any permanent or even long-term exclusion from enjoying his family life in the UK as a result of that decision. The appellant was entitled then (as now) to apply under the immigration rules to resume his family life. That entitlement was contained in paragraph 281 immigration rules whose provisions allow for an application from abroad for family settlement subject to fulfilment of specific requirements.[13]Furthermore, in addition to an entitlement to apply as a spouse, there are statutory provisions granting a person refused such an entry clearance a right of appeal against any subsequent refusal. As a result of the terms in which section 65 of the 1999 Act was enacted, that right of appeal not only requires an adjudicator to decide upon appeal whether any refusal was in accordance with the law or immigration rules, it also requires him to examine whether that decision, including one taken by an entry clearance officer (section 65(7)(c), was contrary to his human rights. So there was also an effective remedy available to him. In other words, at the time of the asylum refusal (and indeed at any time since he met his current wife) the appellant has had lawful means at his disposal to achieve his desired objective of enjoying family life together with his wife and children in the United Kingdom by the simple act of returning to India or some other country and applying for entry clearance as a spouse there.[14]It may be suggested that the existence of a legal avenue abroad to achieve a family life based in the UK is insufficient to render proportionate a decision whose effect is to require a person to be removed to another country, in this case India. We do not agree. Save in exceptional circumstances, it is. Indeed just such has been definitively settled by the Court of Appeal in Mahmood [2001) 1 WLR 840 . Whilst at the time the refusal decision at issue in that case was taken there was no statutory human rights appeal, the Court of Appeal examined this case as if the Convention were directly applicable. Although the particular facts were not entirely the same, nevertheless the applicant in that case had also applied for leave to remain on the basis of his marriage at a time when he had no lawful basis of stay (he was an illegal entrant who had been served with notice of removal directions as such): In refusing his application to stay on the basis of marriage the Secretary of State maintained that the applicant had two viable options, neither of which gave rise to a violation of Article 8. One was for Mr Mahmood, his wife and their two small children to establish family life in his country of origin (Pakistan). The other was for Mr Mahmood, once he had being removed to Pakistan, to apply for permission to join his wife and family in this country in accordance with paragraph 281 of HC 395. In rejecting his Counsel's arguments that either option would breach Article 8

Lord Justice Laws said at paragraph 23:

"If the established rule is to the effect, as it is, that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin."
[15]Lord Phillips of Worth Matravers MR said of the entry clearance application option:"65. Miss Webber gave two reasons for contending that the right of the applicant to apply, from outside the country, for permission to join his wife and family within it did not satisfy the requirement to respect his family life. First she submitted that the applicant who is currently employed as manager of a service station, may not have a job to come back to if he leaves the country, so that he may not be able to demonstrate that he will be able to support his wife and family without social security assistance. I note that ...the applicant and his wife [have adequate accommodation]. If and when the applicant applies for permission for a settlement visa in accordance with paragraph 281 his application will have to be considered having regard to his rights under article 8. In these circumstances, I do not consider that the possibility that his application may not succeed any reason for excusing him from the requirement to make an application from outside the country if he wishes permission to settle here with his wife and family.66. Miss Webber's second point, which is allied to her first, is that it is unreasonably harsh to require the applicant to give up contact with his wife and young children for however long may be needed to process his application at the British High Commission in Pakistan. I would endorse the comments made by Laws LJ in relation to Miss Webber's reliance on R v Secretary of State for the Home Department ex p Hashim 12 June 2000 in this context. At the same time there is obvious force in Miss Webber's argument that it will be harsh if the applicant is denied contact with his two young children for a lengthy period. I would hope that this consideration will lead to any application that he may make under paragraph 281 being dealt with reasonable expedition. I do not consider, however, that the Secretary of State's insistence that the applicant should comply with the same formal requirements as all other applicants seeking an entry visa to join spouses in this country is in conflict with article 8".[16]From this judgment we glean that a person in the position of the appellant in this appeal (someone who seeks to stay on the basis of marriage albeit he has no valid leave to remain) can only succeed in establishing that a decision that he be removed was a disproportionate interference with his right to respect for family life if he can show exceptional circumstances prevented him applying for entry clearance from his own country. It is further clear from this judgment that it does not matter that, under the Immigration Rules, an entry clearance officer, in deciding upon a spouse application, might also seek to rely on any of the additional grounds for refusal of entry clearance set out at paragraph 320 (e.g. paragraph 320(11): failure to observe the time limit attached to any grant of leave to enter or remain in the United Kingdom; e.g. paragraph 320(12): the obtaining of a previous leave to enter or remain by deception).[17]Could the appellant show exceptional circumstances? Mr Williams urged us to find that he could. He relied essentially on four factors: the essential role of the appellant in helping his partially immobile wife with running the household and looking after the children; the vital role of the appellant in caring for his wife, also thereby saving public expense; the fact that because of his wife's inability to work he might face specific obstacles in meeting the requirements of the immigration rules laid down for spouses seeking entry clearance relating to maintenance; and finally the significant period of separation this option would entail, coming at a time when one of the two children was in the first year of GCSE exams.[18]We have found ourselves unpersuaded by Mr William's arguments.[19]In our view the evidence relating to the first two factors mentioned by Mr Williams does not demonstrate that the appellant's wife needs his care in particular. Her children were born in 1987 and 1990 respectively and so at the date of decision were 11 and 14: they were therefore of such an age that they did not need close physical care and indeed may well been in a position to help with household chores. Mr Williams told us on instructions that his wife has not received any disability benefits because he has been helping her. There was no reason to think that if she had been sufficiently incapacitated, she could not receive such benefit or benefits. We accept that by staying the appellant might help save the public purse by obviating the need for her to claim more in benefits in cash or kind, but we do not see that that gave rise to any exceptional circumstance. Nor are we satisfied in any event that his wife was (or is) significantly incapacitated. Despite making his wife's incapacity a central point in his statement of additional grounds submitted in June 2001 and continuing to do in the course of his appeal to the Tribunal, the appellant has not produced any medical evidence more up to date than June 2001 to show that the prognosis made then was mistaken. And that medical evidence plainly assumed the appellant's difficulties would be are mainly temporary: the prognosis given mentions no more than a future need for further physiotherapy and anti-inflammatory medication and psychiatric evaluation in relation to post-traumatic stress. Nor did any of the medical evidence relating to her recent attempts to have a child contain anything to suggest that she was advised her level of incapacity made it a bad time to try.[20]It could be that, if the appellant's wife had been thought unable to work for the foreseeable future and the appellant upon return unlikely to receive a viable job offer from the UK, he might not be able to fulfil the maintenance requirement of paragraph 281 straightforwardly. However, as Mr Deller correctly pointed out, recent case law has only looked at whether an applicant's arrival would cause an additional recourse to public funds. And as someone who had worked as a lorry driver in the past, the appellant was certainly in a better position than some foreign husbands to show he would soon find employment. It must also be remembered that as a result of s. 3 of the Human Rights Act 1998 all the provisions of the immigration rules (as well as other legislation) have to be read purposively so that their operation does not give rise to a violation of human rights. In certain circumstances denial of entry clearance to a spouse because of his partner's physical inability to re-enter the job market could give rise to a an allegation based on financial discrimination contrary to Article 8 read in conjunction with Article 14.[21]But from the analysis conducted by the Master of the Rolls in the Mahmood case it is clear that the possibility of a spouse's application for entry clearance from abroad not succeeding is not any reason for exempting him from the requirement of having to apply abroad for settlement.[22]Nearly the same observation applies to the possibility that the entry clearance application may take time. Nevertheless, as can be seen from the comments of the Master of the Rolls in Mahmood, a different approach might be justified if it was likely the appellant would face prolonged delay. But Mr Williams has not been able to point to any evidence to lead us to suppose that it was reasonably foreseeable there would be prolonged delay in deciding on the appellant's application for entry clearance. If there is a refusal obviously a subsequent appeal would lengthen the process but once again there is no evidence to suggest the British post concerned would be tardy especially if it turned out that the circumstances of the appellant's wife and children became fraught by virtue of the appellant's absence. Obviously there may be some hardship for the two children in not having the appellant in their household over the period of their school examinations, but this remains, in our view, way short of a set of circumstances which even when viewed cumulatively, could be described as exceptional.[23]Precisely what range of circumstances can qualify as exceptional remains likely to be clarified by further case law on a case-by-case basis. Some light has already been cast by the Tribunal in Soloot (01TH1366) which concerned an appellant who was a national of Iran. It decided that Article 8 was violated where an appellant's wife had been granted refugee status (because of real risks she faced in Iran) and he, upon removal to Iran, faced being unable to apply for entry clearance there and unable to travel to neighbouring countries which did have entry clearance facilities without violating laws regulating exit from Iran. Such circumstances were clearly exceptional.[24]Having found that the appellant's circumstances are not exceptional, we are satisfied that the existence of the option of applying from abroad for entry clearance as a husband prevents the removal decision under appeal in this case from constituting a disproportionate interference with the appellants right to respect for family life. That being so we do not find it necessary to rule on whether we think the adjudicator was right to conclude that the other available option open to the appellant and his family,of going abroad and enjoying their family life in India or some other country, was also a viable one with the result that the removal decision would once again not be disproportionate.[25]Lest it be thought that our analysis of this appellant's appeal affords a license for decision-takers (including adjudicators) to reject an Article 8 claim purely because of the existence of an option of applying for entry clearance on family grounds from abroad, we would hasten to point out that in our view a proper assessment of an Article 8 claim under either option (the family going abroad with the appellant option or the appellant going abroad and applying for entry clearance option) will always require a careful balancing of the appellant's family circumstances weighed against the interests of the government in the maintenance of effective immigration control. In either instance that is to say a proper assessment will require very much the same type of exercise as the adjudicator conducted in this case and the Court of Appeal conducted in Mahmood.[26]For the above reasons, the appeal is dismissed.[27]Summary of conclusions I. Where a spouse is able to show he had an established family life relationship in the UK with a British citizen wife and stepchildren, a decision that he be removed from the UK will constitute an interference with his family life. The adjudicator was wrong to find otherwise in this case. But there still remains the question of whether the interference was disproportionate. II. In cases in which an appellant is faced with a removal decision that has interfered with his family life, there will always be two possible options requiring examination to establish whether there is in fact a breach of Article 8: leaving with his family or applying for entry clearance from abroad as a spouse. It follows from the Court of Appeal judgment in Mahmood that a removal decision will not be disproportionate if an appellant had as a viable option applying from the country of return for entry clearance as a spouse seeking settlement. Even if there existed insurmountable obstacles preventing his wife and any children from leaving the UK with him, such a decision would only be disproportionate if there were excepfional circumstances. There were no such exceptional circumstances in this case. III. However, whilst adjudicators are entitled to consider the viability of the entry clearance option first, without necessarily ruling on whether the alternative option of the appellant's family leaving with him was viable, this approach does not justify a peremptory or short cut assessment. Even when all that has to be assessed is whether or not there were exceptional circumstances, it remains essential in every case that the adjudicator conduct a careful balancing exercise of the factors weighing in favour of the appellant enjoying uninterrupted family life in the UK and the factors counting in favour of the removal decision being upheld in the interests of effective immigration control. DR H H STOREY

Cited in 6 later judgments