LM v The Secretary of State for the Home Department [2010] UKUT 379 (IAC)

[2010] UKUT 379(IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Venue Heard at Field House On 30 June 2010

Before

The Hon Mr Justice Burnett

Senior Immigration Judge Goldstein

Between

LMAppellant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Mrs K Afolabi of Messrs Gramyko Amedu for Appellant

Ms D Cantrell, Home Office Presenting Officer. for Respondent

It was not a violation of Article 8 ECHR to remove the appellant to Jamaica given that she married her BOT citizen husband from Montserrat when she was here without leave, substantially failed to comply with the Immigration Rules, had no UK born children and strong family connections in Jamaica, including three children one still a minor. Despite the fact that the settled husband was in receipt of invalidity benefit here, it was reasonable to expect him to follow the appellant to Jamaica.

DETERMINATION AND REASONS

Date 2010-06-30

Introduction

[1]We are concerned to determine whether

Article 8 ECHR

requires the SSHD to allow the appellant to remain in the United Kingdom. The procedural circumstances in which the matter comes before us are these. On 14 October 2008 the SSHD refused the appellant leave to remain in the United Kingdom as the spouse of Paul Meade. She is a Jamaican national. Her appeal against that decision came before Immigration Judge Alis on 7 April 2009. It was accepted on behalf of the appellant that she did not qualify for leave under Paragraph 284 of the Rules (HC 395) and so her appeal was limited to a claim under Article 8. The Immigration Judge dismissed the appeal. Blake J ordered reconsideration. In a determination dated 29 December 2009 Senior Immigration Judge Gill concluded that there had been an error of law in the original determination and adjourned the case for a second stage reconsideration of the Article 8 claim, with all matters at large. In giving her reasons she said:

“1. This is the first stage of the reconsideration of the appeal of the Appellant, a national of Jamaica. Her appeal against the Respondent's decision of 6 February 2009 to give directions for her removal from the United Kingdom was dismissed on immigration grounds and on human rights grounds by Immigration Judge Alis following a hearing on 7 April 2009. 2. At the first-stage of the reconsideration on 9 November 2009, Mr. P. E. Anyakudo, of Gramyko Amedu Solicitors, represented theAppellant. Ms. D. Cantrell, Senior Home Office Presenting Officer, represented the Respondent. 3. It was accepted on the Appellant’s behalf before the Immigration Judge and before me that the Appellant’s appeal under the Immigration Rules could not succeed. This is because the Appellant does not satisfy the requirements of paragraph 284(i) of the Immigration Rules. The Appellant does not have limited leave to remain in the United Kingdom. She was granted leave to enter as a visitor on 26 December 2001 for six months. Her leave expired on 26 June 2002. 4. The sole issue before the Immigration Judge was whether the Appellant's removal would be in breach of Article 8 of the ECHR. He concluded that it would not. The sole issue before me is whether the Immigration Judge has materially erred in law in reaching his conclusion on that issue. 5. Mr. Anyakudo informed me that he was seeking a second stage of the reconsideration of the Appellant's Article 8 claim. Ms. Cantrell agreed that the Immigration Judge did materially err in law in reaching his decision on the Appellant’s Article 8 claim and that the appropriate course of action is for the Article 8 claim to be reconsidered on the merits. 6. I am satisfied that the Immigration Judge did materially err in law in reaching his decision on the Appellant’s Article 8 claim. I will now explain my reasons: (a) It is clear from paragraphs 7 and 13 of the refusal letter that the Respondent accepted that the Appellant had shown that she and her husband had a subsisting marriage in the year 2008. Although the Immigration Judge referred to the Respondent's concession at paragraphs 17, 30 and 33 of the determination, he did not consider it in his assessment of the evidence at paragraph 44 of the determination. This means that he failed to apply an applicable concession, which was an error of law. The fact that the Respondent accepted that the Appellant and her husband had a subsisting marriage for the year 2008 was capable of having some bearing on the question whether they had a subsisting marriage before 2008 and after 2008. Accordingly, the Immigration Judge's error was material to his finding that he was not satisfied that the marriage was subsisting (paragraph 46 of the determination). (b) The Immigration Judge misdirected himself as to the applicable standard of proof in human rights cases. He directed himself at paragraph 5 that the appropriate standard of proof was the balance of probabilities, which is wrong. The appropriate standard of proof is the same low standard as applies to asylum cases. Paragraph 46 of the determination shows that he made his findings as to the relationship between the Appellant and her husband on the standard of the balance of probabilities. This error is an error of law, which, taken on its own, is material. (c) The Immigration Judge failed to assess the oral evidence before him. Although he recorded the oral evidence, he failed to assess it. This means that he overlooked relevant evidence. 7. The errors of law described at paragraphs 6(a) and (b) above are clearly material. I agree that the Article 8 claim must be reconsidered on the merits. 8. I then heard submissions from the parties as to the extent of the concession made by the Respondent in the refusal letter. Ms. Cantrell submitted that it is clear, from paragraphs 7 and 13 of the refusal letter, that the Respondent’s concession was limited to the year 2008. Mr. Anyakudo submitted that, given that the refusal letter is dated 2 February 2009 and that the Respondent did not dispute that the Appellant did not have a subsisting relationship with her husband after 2008, the concession extends beyond the year 2008 to subsequent periods. I reserved my decision on this issue. 9. In my judgment, Mr. Anyakudo’s submissions are misconceived. I have noted that Blake J stated, at paragraph 1 of the decision ordering the Tribunal to reconsider its decision, that “the HO accepted that the parties lived together as man and wife in 2008 and thereafter”

. However, it is not clear whether Blake J had a copy of the refusal letter before him. I have had the benefit of considering the refusal letter. There was no presenting officer before the Immigration Judge, which means a further concession could not have been made on the Respondent's behalf at the hearing before the Immigration Judge. Mr. Anyakudo submitted that it is possible that the Respondent served written submissions in which it was accepted that the concession extended to the period after 2008. I have checked the documents on file. No written submissions were served on the Respondent's behalf. Accordingly, any concessions made on the Respondent's behalf must be found in the refusal letter. Concessions made on the Respondent's behalf must be clearly stated. Paragraphs 7 and 13 of the refusal letter clearly relate only to the year 2008. They do not relate to any subsequent period, nor can they reasonably be inferred to relate to any subsequent periods. This is especially so given that the documentary evidence submitted by the Appellant did not extend to any period after the year 2008. 10. Accordingly, I have decided that the Respondent's concession only applies to the year 2008. That is the basis upon which the second-stage reconsideration should proceed. 11. This case is adjourned part-heard for a second-stage reconsideration of the Appellant’s Article 8 claim on the meritsby an Immigration Judge other than Immigration Judge Alis. None of the Immigration Judge's findings shall stand”. (a) It is clear from paragraphs 7 and 13 of the refusal letter that the Respondent accepted that the Appellant had shown that she and her husband had a subsisting marriage in the year 2008. Although the Immigration Judge referred to the Respondent's concession at paragraphs 17, 30 and 33 of the determination, he did not consider it in his assessment of the evidence at paragraph 44 of the determination. This means that he failed to apply an applicable concession, which was an error of law. The fact that the Respondent accepted that the Appellant and her husband had a subsisting marriage for the year 2008 was capable of having some bearing on the question whether they had a subsisting marriage before 2008 and after 2008. Accordingly, the Immigration Judge's error was material to his finding that he was not satisfied that the marriage was subsisting (paragraph 46 of the determination). (b) The Immigration Judge misdirected himself as to the applicable standard of proof in human rights cases. He directed himself at paragraph 5 that the appropriate standard of proof was the balance of probabilities, which is wrong. The appropriate standard of proof is the same low standard as applies to asylum cases. Paragraph 46 of the determination shows that he made his findings as to the relationship between the Appellant and her husband on the standard of the balance of probabilities. This error is an error of law, which, taken on its own, is material. (c) The Immigration Judge failed to assess the oral evidence before him. Although he recorded the oral evidence, he failed to assess it. This means that he overlooked relevant evidence.

[2]By virtue of Paragraph 4 of Schedule 4 to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010, the reconsideration now takes place as an appeal to this Tribunal.

The Issues

[3]The SSHD rejected the original application on 2 February 2009 for a number of reasons. Amongst them was that the evidence suggested the existence of a subsisting marriage in 2008 alone, but not from 2003 as claimed. He was not satisfied that the appellant and her husband had been living together permanently or that the marriage was still subsisting. This remains the SSHD’s contention and a primary foundation for his argument that Article 8 cannot avail this appellant. By contrast, the appellant and her husband suggest that the marriage is a genuine and subsisting one. Were the appellant required to return to Jamaica it would not be reasonable to expect him to follow her. The marriage might well be destroyed. The appellant’s removal would interfere with the Article 8 rights of both parties to the marriage and would be disproportionate.

The evidence on the quality of the marriage

[4]We deal first with evidence touching the question whether the appellant and her husband are parties to a subsisting marriage with the intention of living permanently together. Both gave oral evidence and confirmed the truth of statements they made in February 2010 in preparation for this hearing. In addition they confirmed the statements they had made in April 2009 for the hearing before the Immigration Judge and the content of a questionnaire completed at their direction by their solicitor in January 2009, which was signed by them both. A large number of documents were produced before the Immigration Judge and before us which show that both the appellant and her husband lived at 19, Whitstable House, Silchester Road, London W10 6SB from the summer of 2004. None before 2008 identified them as a couple. It was, in part, for that reason that the SSHD was sceptical about the true nature of the relationship.

[5]A genuine Marriage Certificate was produced by the appellant which shows that she married Paul Meade on 5 December 2003. The evidence they gave of where Mr Meade lived at the time was not entirely consistent. The Marriage Certificate suggests that they lived together at 10, Castlebar Road, Ealing at the time of the marriage. The appellant told us that her husband was living with his brother at that time, whilst Mr Meade told us that he was living in a hostel, having earlier lived with his brother. Mr Meade suffers from various medical difficulties, to which it will be necessary to return, and explained that his wife assumed a caring role whilst he was in the hostel. He took a lease of the flat at Whitstable House from 2 August 2004. It was then that they began to live together. Each, independently and without prompting, gave a consistent description of the size of the flat and its position in the block. The documents produced (utility, TV services, medical etc.) show to our mind that both have, at the least, been using that address for correspondence purposes. Having heard both the appellant and her husband we are satisfied that they are both living in the flat and have been doing so since the summer of 2004. We are also satisfied that they are living there as man and wife.

[6]There were a number of occasions during the appellant’s oral evidence when we considered that she was being transparently honest in describing her relationship with her husband. Examples occurred when she was being asked by Ms Cantrell to explain what her husband did all day, what his favourite television programmes were and who his closest male friend was. It was obvious from the appellant’s reaction and demeanour when describing his tendency to watch television all day, with a penchant for horror films and news programmes that the appellant did not share his tastes and she thought he watched horror films in part to scare her. Equally, when telling us that his best friend was ‘Junior’ she did so in a way we found convincing. Mr Meade confirmed the strength of the relationship in less demonstrative terms than his wife. We do not overlook the paucity of independent evidence attesting to the strength of the marriage or of joint activities during its currency, although the appellant’s Aunt, Barbara Jones, gave some supporting evidence. Nonetheless, we conclude that the appellant and her husband are parties to a genuine and subsisting marriage and intend to remain together.

The further evidence relevant to the Article 8 claim

[7]There is a great deal of background evidence in this case which is not in dispute. As we have already noted, the appellant is a Jamaican national. She was born on 13 June 1964. She arrived in the United Kingdom on 26 December 2001 and was granted leave to enter as a visitor for six months. She overstayed. On 1 December 2004 the appellant submitted her first application for leave to remain as a spouse. It was rejected on 10 December. A second application was submitted on 17 December but this too was rejected because the necessary fee was not enclosed. On 7 January 2005 she submitted an application for leave to remain as the spouse of Paul Meade which was technically in order. In January 2008 she was arrested following a domestic disturbance. Both she and her husband speak of that in their statements. He had called the police after a domestic dispute. The appellant explained that she was arrested. The dispute arose out of his drinking, which they say has now stopped. At all events the appellant’s lack of immigration status was picked up and an enforcement notice was served giving her notice that she was liable to be removed. No action was taken at that time. In October 2008 the appellant contacted her Member of Parliament. She got in touch with the Home Office. On 8 December 2008 UKBA wrote to the Member of Parliament apologising for the delay in dealing with the application and indicating that it was being assigned to a case worker.

[8]It was as a result of that action that a detailed questionnaire was sent to the appellants’ legal representatives on 12 December 2008 which was completed by the solicitor in the presence of the appellant and her husband (as the appellant told us) and signed by both of them.

[9]The refusal letter followed on 2 February 2009.

[10]Paul Meade is a British Overseas Territories Citizen from the Colony of Montserrat born on 29 July 1956. He was given indefinite leave to remain in the United Kingdom on 19 September 2001. His passport shows that he entered Canada on 11 June 2006, although he told us that he had not left the United Kingdom since being granted ILR.

[11]Mr Meade labours under a number of health difficulties. The evidence placed before us is spartan. He and his wife spoke of varicose veins and back problems which, we infer from their description, include disabling sciatica. The appellant told us that he had been given epidural injections. The objective evidence includes a note of the decision of the Social Security Chamber of the First-tier Tribunal dated 26 January 2010 which determined that Mr Meade was entitled to the care component of disability living allowance at the ‘lowest rate’ and the mobility component at the ‘higher rate’. The very short decision noted that Mr Meade was ‘virtually unable to walk’. Happily that was not the position we observed as he walked in and out of the hearing room. A recent request by Mr Meade’s GP for a routine chest X ray was included in the appellant’s bundle. The request refers to breathlessness (not something mentioned to us in evidence) but unfortunately the result was not produced. There is no recent medical report detailing Mr Meade’s problems. All that was produced was the first page of a letter dated 7 May 2009 to his GP from someone at the Department of Anaesthesia, Intensive Care and Pain Management at the Chelsea and Westminster Hospital. The first paragraph records the complaints:

“Thank you … for referring Paul Meade … for consideration of management of his lower back pain, which he has had for approximately 30 years. This has been gradually deteriorating and over the past few years has been very significant. He has been unable to work for the past 10 years because of pain … The pain itself is worst in the legs associated with occasional cramps in his calves and feet and also a burning sensation. The pain stems from the back, which is significant [and] associated with stiffness in the morning; however, the pain is worse on walking, climbing stairs, and lifting. In the morning sometimes, he needs massage of his back and legs to try to help loosen them from his wife.”

We inquired of Mrs Afolabi whether the second page of the letter was available, but alas she was unable to find it amongst her files. That is a pity because it would, no doubt, have indicated a diagnosis and treatment plan an identified its author. The first page noted that he took paracetamol and that physiotherapy and swimming helped a bit, but that exercising produced ‘no great effect’ and co-codamol did not help either.

[12]Both the appellant and her husband provided details of immediate and extended family in the questionnaire completed in January 2009. Prior to coming to the United Kingdom Mr Meade lived in Antigua. He has three brothers and three sisters in the United Kingdom, one sister in Canada and one in the United States. The presence of his siblings in the United Kingdom was not mentioned by the appellant or her husband as being relevant to the Article 8 claim. Indeed the only mention was to say that his siblings would not be able to provide the care for Mr Meade that the appellant does, if she were to leave. He has five adult children in Antigua. The appellant has four aunts, two sisters and ‘about’ 18 cousins in the United Kingdom. We heard from one of those Aunts, Barbara Jones, who is obviously close to the appellant and has been providing her with financial support since she arrived in the United Kingdom. The material before us shows that the appellant has an involvement in her local Church. She also undertook some voluntary work, but quite when she was unable to remember, and its nature was not explained. A document suggested that she was working voluntarily part-time for the Blue Apple Group in Education and Training from November 2006 to at least March 2009. The appellant had difficulty remembering when she had done voluntary work and it did not strike us as being a particularly important part of her life.

[13]In the same questionnaire the appellant recorded that she had children in Jamaica. No details were given and so we asked the appellant about the position. She told us that she has three children in Jamaica, two daughters and her ‘baby’ who is 10. Those daughters are aged 20 and 17 and live with their father. Her ‘baby’ lives with his grandmother. She also told us that another son was killed last year in Jamaica. We were conscious that talking about her children was difficult for the appellant. She has not seen them since she left in 2001. The appellant explained that she has a good relationship with her children. She misses them but speaks to them ‘every day’ on the telephone. She wants to see them and would like her husband to get to know them. She would like them to be able to come to see her here and if possible, to live here. The separation from her children, tinged with the tragedy of the death of her son, is something that deeply upsets the appellant. We were told that Mr Meade takes an interest in the appellant’s children and is keen to establish a relationship with them.

[14]In answer to a question about when the appellant and Mr Meade had first discussed the appellant’s immigration status and what his reaction had been, the answer given were that they discussed it is October or November 2004 and that ‘he did not seem bothered about it’. The timing would tie in with the first application for leave to remain which was made shortly thereafter.

[15]The questionnaire also contained a question asking whether the appellant’s spouse would follow her if she was removed from the United Kingdom. The answer given was:

‘… only if he was forced to do so. He said that Jamaica is far too violent.’

This answer was given before the appellant’s son was killed which has added to the concern she has about the state of Jamaica. In her oral evidence the appellant said that her husband could not move to Jamaica because he is sick, knows nothing about Jamaica and that it is ‘not a good country’. There was the hint of a suggestion in her evidence that he was physically incapable of travelling to Jamaica. We reject that suggestion. The medical evidence does not support it and neither did our observations of Mr Meade. Additionally, he managed to travel to Canada in June 2006 at a time when both suggest he was in need of substantial care from the appellant. In her oral evidence, the appellant indicated that she would not force him to follow her. In his oral evidence, Mr Meade said that he would not go to Jamaica because of his medical condition. He was concerned that he could not get medication in Jamaica.

Submissions

[16]Ms Cantrell’s primary submission is that the marriage is not subsisting or permanent so that Article 8 is not really in issue. We have made factual findings which result in that argument failing. Her secondary argument is that there is no reason why the appellant’s husband could not reasonably travel to Jamaica, all the more so as the appellant has children there. Removal of the appellant is proportionate.

[17]Mrs Afolabi submits that the marriage is a close one and in particular that Mr Meade depends upon the care provided by the appellant. She submits that it would not be reasonable to expect Mr Meade to follow the appellant to Jamaica; that because the appellant came close to satisfying the immigration rules, the public interest in maintaining immigration control is diminished; and that nothing would be achieved in requiring the appellant to return to Jamaica to make an application for leave to enter as a spouse. Mrs Afolabi also reminded us that the Article 8 question must be considered in the light of the interests of the whole of the family. That includes the appellant’s children currently in Jamaica who she wishes to join her here in due course.

The Law

[18]We start by referring to a summary of the main principles in play in cases of this sort helpfully drawn together by Sedley LJ in VW (Uganda)

[2009] EWCA Civ 9

“18. In EB (Kosovo)[2008] UKHL 41; [2009] 1 AC 1159, at §12, Lord Bingham, with the assent of the other members of the Appellate Committee, said: "Thus the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires." 19. The words which I have italicized lay to rest an issue which has troubled decision-makers and advocates at least since the decision of this court in R (Mahmood) v Home Secretary [2001] 1 WLR 840, because of the use by Lord Phillips MR, in the course of giving the second judgment, of the phrase "insurmountable obstacles" in the context of art. 8. … But for the present, at least, the last word on the subject has now been said in EB (Kosovo). While it is of course possible that the facts of any one case may disclose an insurmountable obstacle to removal, the inquiry into proportionality is not a search for such an obstacle and does not end with its elimination. It is a balanced judgment of what can reasonably be expected in the light of all the material facts. 20. What those facts are, however, can in art. 8 cases be a subject of real difficulty, because they may well include the intentions of individuals should the very event occur which they are trying to forestall. I will return to this problem when I come to the disposal of the present cases. 21. Art 8 cases, including those before the court, also encounter occasional difficulty in the application of Lord Bingham's tabulation in Razgar. In §17, it will be recalled, he set out the sequence of questions as follows: “(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?” (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?” 22. As this court made clear in AG (Eritrea) [2007] EWCA Civ 801, §26-28, the phrase “consequences of such gravity” in question (2) posits no specially high threshold for art. 8(1). It simply reflects the fact that more than a technical or inconsequential interference with one of the protected rights is needed if art. 8(1) is to be engaged. 23. There will also be unnecessary difficulty if the relationship of questions (4) and (5) is misunderstood. The emphasis in question (4) is not on simple necessity but on whether the need for the general restriction on the primary right lies within one of the specified purposes. If it does, then whether the particular restriction is necessary in a democratic society engages question (5). Clearly, if the restriction is plainly unnecessary, the art. 8 question will be answered in the appellant’s favour; but that will be rare. In any other case, once a permitted purpose has been established in answer to question (4) (as in cases governed by the Immigration Rules it generally will be), the inquiry moves to question (5) which, by focusing on the proportionality of the measure in the individual case, gives effect to the jurisprudence of the Strasbourg court as to what is “necessary in a democratic society”

. There is no discrete or prior test of necessity. 24. EB (Kosovo) now confirms that the material question in gauging the proportionality of a removal or deportation which will or may break up a family unless the family itself decamps is not whether there is an insuperable obstacle to this happening but whether it is reasonable to expect the family to leave with the appellant. …”

[19]In paragraph [29] of the same judgment Sedley LJ identified the question for the Tribunal when considering Article 8(2) as being ‘whether the removal of the appellant, notwithstanding its effect on her and others, was proportionate to the legitimate aims of immigration control.’ He also endorsed the observation of the AIT in that case that:

“What must be shown is more than a mere hardship or a mere difficulty or a mere obstacle. There is a seriousness test which requires the obstacles or difficulties to go beyond matters of choice or inconvenience.”

[20]We readily accept that since the decision of the House of Lords in Chickwamba

[2008] UKHL 40

it is rarely open to the SSHD to suggest that an appellant should leave the country and apply from abroad to join his spouse. No such argument is advanced by Ms Cantrell here. We also accept that if an appellant had failed to comply with an Immigration Rule by a whisker then the weight to be accorded to the legitimate aims of immigration control would be diminished. However, we do not accept that is the case here. The appellant failed to satisfy the relevant Rule not by a whisker but by a mile.

[21]In EB (Kosovo)the House of Lords recognised that delay in the SSHD’s decision making process may have an impact on the Article 8 assessment in three ways. First, during the period of delay the person concerned may put down deeper roots. Secondly, a relationship entered into when the person has no leave may be tentative when started but as time passes with no action being taken an expectation may have grown that no action will be taken. Thirdly, it may reduce the weight that can be accorded to firm and fair immigration control (see Lord Bingham at paragraphs [14] to [16]).

Discussion and Conclusions

[22]The starting point for our consideration of the Article 8 issues is our acceptance that the appellant has established family life in the United Kingdom with her husband. Whilst she has other adult relations here the only one of which we have heard is her aunt, Barbara Jones. They enjoy a close relationship which we take into account although in our view it adds very little weight to the Article 8 claim. Were the appellant removed from the United Kingdom she would see less of her aunt. Subject to her aunt visiting Jamaica the appellant would maintain close touch via telephone, as she does currently with her three children in Jamaica. Mr Meade’s children are in Antigua. There was very little evidence before us touching any other aspects of the appellant’s life in the United Kingdom. We have noted that she is involved in her Church and that she has undertaken some voluntary work. No submission was made that a decision by Mr Meade to follow his wife to Jamaica would cause especial problems in the relationships of either with his other family members in the United Kingdom.

[23]The appellant is an overstayer who failed to take any steps to regularise her position between June 2002 and December 2004. She married in full knowledge that she was an overstayer. Although we accept that she and her husband did not discuss immigration issues until the autumn of 2004, we have seen no evidence that suggests that he believed that his wife had any right to be in this country. He appears not to have been curious about the true position.

[24]Although Mr Meade has lived in the United Kingdom since at least 1991, he has no children in this country and, as a result of his medical problems, no work. We have seen no evidence of deep or enduring ties in this country although we are prepared to accept that he is settled, and has relationships with his adult family members and friends. An important question in evaluating issues under Article 8 is whether Mr Meade would follow his wife to Jamaica if she were removed there. The starting point is that he wishes to remain in the United Kingdom with his wife. The medical evidence before us does not support the proposition that he is physically unable to travel and we were unimpressed by the bare assertion that unspecified medication would be unavailable in Jamaica. Neither are we impressed by general appeals to the prevalence of violent crime in Jamaica, despite the tragedy that befell the appellant’s son. The reality is that the appellant wishes to be reunited with her children, albeit she would prefer that to happen here, and her husband is keen to meet them and develop a relationship. Even though the appellant told us that she would not ‘force’ her husband to go to Jamaica with her, an echo of the language in the questionnaire, we think it likely, given our assessment of the strength of the relationship, that Mr Meade would follow his wife to Jamaica. Indeed we think it probable. We recognise, that those who have to make difficult choices of this sort can rarely speak with confidence of the choice they would make before they have to confront it. We recognise that this couple would be faced with a dilemma. However, we do not conclude that Mr Meade ‘cannot reasonably be expected to follow the removed spouse to the country of removal’, to use Lord Bingham’s language in EB (Kosovo). Given all the circumstances of the domestic situation our conclusion is that it is reasonable to expect him to follow his wife to Jamaica.

[25]With that finding in mind we return to the central question identified by Sedley LJ in VW (Uganda), namely whether the removal of the appellant, notwithstanding its effect on her and others, would be proportionate to the legitimate aims of immigration control. (The first three ‘Razgar’ questions we answer affirmatively.) Her removal would disrupt the life of her husband if he were to follow her. Its impact on the appellant herself would, unusually, be to reunite her with her three children from whom she has been separated since 2001 and who she desperately misses. That is a singular feature of this case and contrasts with many where the facts suggest that the relationships between children and their parents might be dislocated as a result of the immigration decision. She married in full knowledge that she had no right to be in the United Kingdom and her husband had no reason to suppose that she did. A factor that we also consider in this case is that the SSHD took four years to decide the appellant’s application for leave to remain and, having served her with an enforcement notice in January 2008 took no steps to act upon it before the Member of Parliament became involved. We have considered the matters identified by Lord Bingham in EB (Kosovo)which can arise in cases involving delay. The circumstances in this case are nowhere near as stark as those in that case.

[26]Taking account of all the matters to which we have referred we are satisfied that the appellant’s removal from the United Kingdom is proportionate to the legitimate aims of immigration control. In the circumstances, despite the error of law identified by SIJ Gill at the first stage hearing (which we accept for the purposes of this second stage reconsideration), we dismiss the appeal.

Decision

[27]The making of the previous decision involved the making of an error on a point of law.

[28]We set aside the previous decision.

[29]Our decision is that the human rights (

Article 8 ECHR

) appeal of the appellant is dismissed. THE HON MR JUSTICE BURNETT