An (afghanistan) and Others v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Underhill,Lord Justice Briggs,Lord Justice Laws
Judgment Date11 October 2013
Neutral Citation[2013] EWCA Civ 1189
Docket NumberCase No: C5/2012/2008
CourtCourt of Appeal (Civil Division)
Date11 October 2013
Between:
An (afghanistan) & Ors
Appellants
and
Secretary of State for the Home Department
Respondent

[2013] EWCA Civ 1189

Before:

Lord Justice Laws

Lord Justice Underhill

and

Lord Justice Briggs

Case No: C5/2012/2008

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM the Upper Tribunal (IAC)

Deputy Upper Tribunal Judge Davey

IA/29161/2011

IA/29165/2011

IA/29182/2011

Royal Courts of Justice

Strand, London, WC2A 2LL

Sibghat Kadri QC and Rashid Ahmed (instructed by R Legal) for the Appellants

Robert Kellar (instructed by the Treasury Solicitor) for the Respondent

Lord Justice Underhill
1

The first two Appellants, Abdul Hossain Noory and Zubida Khairzada (to whom I will refer as Mr and Mrs Noory) are a husband and wife. The third Appellant is their daughter, Masooma. Mr and Mrs Noory are aged 71 and 59 respectively. They were born in Afghanistan and are Afghan nationals, but thirty years ago or so they moved to Iran, and for many years Mr Noory worked as a cook in the Australian Embassy in Tehran. Masooma was born, in Iran, on 21 March 1995 and is accordingly now aged 18. She has lived in Iran all her life, although she has paid occasional visits, with her father or mother, to relatives in Afghanistan, most recently in 2010.

2

Mr and Mrs Noory have another son who works in Iran. They also have an older son, Abdul, who came to this country many years ago as a refugee and has leave to remain, and a daughter, Sadiqa, who has married a UK citizen and is also settled here. Abdul has a good job with RBS.

3

Mr Noory has visited his two children in this country on two occasions, in 2005 and 2007; on the second occasion Mrs Noory came too. In March 2011 they came again, with Masooma, then aged almost 16. Although they came on visitor visas, it was in fact Mr and Mrs Noory's intention, which they did not declare, to settle permanently in the UK. Mr Noory gave up his job at the embassy in Tehran and disposed of his interest in his house there. He also claims to have given away most of his other assets in Iran. On 7 July 2011, shortly before the expiry of their visas, they applied for indefinite leave to remain as dependants of Abdul, under para. 317 of the Immigration Rules.

4

Those applications were refused by the Secretary of State in September 2011. All three appealed to the Immigration and Asylum Chamber of the First Tier Tribunal. They put their case both under the Rules and on the basis that their removal would be in breach of their rights under article 8 of the European Convention of Human Rights. As regards the article 8 case, any removal would have to be to Afghanistan rather than Iran, and the Judge in the First Tier Tribunal summarised their case as follows:

"The requirement from the respondent is that the appellants go to Afghanistan. That would, say the appellants, amount to a breach of their article 8 rights. The first and second appellants have been away from the country for almost 30 years. The third appellant had never lived in that country. There would be no employment prospects for him in Afghanistan. The first and second appellants both have their health problems. The third appellant had achieved well in her education in Iran. She would not be able to continue that education in Afghanistan."

5

At the hearing the Appellants were represented by Mr Rashid Ahmed of counsel. All three Appellants gave oral evidence, as did their son Abdul and their daughter Sadiqa. We have been shown witness statements from Mr Noory and Masooma. For the purposes of the issues on this appeal their evidence can be sufficiently summarised as follows:

(1) Mr Noory's witness statement is fairly brief. It mostly deals with his circumstances in Iran and his case that he was financially dependent on Abdul. (One oddity is that he appears to say that he had not in fact lived in Iran continuously for the last thirty years but had returned to Afghanistan at some point "for a few years"; but that is not the basis on which the Judge proceeded, and I need say no more about it.) He says that he has an enlarged prostate and problems with his knees — though as to that the Judge made a finding that neither he nor Mrs Noory had significant restricting medical conditions. He says nothing specific about his, or his wife's or Masooma's, life in the UK since their arrival, except that they are living with Abdul. As regards return to Afghanistan he says:

"I do not have any property in Afghanistan and only distant relatives.

Given my age [and] the situation there I do not know how I am going to obtain a living and provide for my wife and daughter. I would inevitably rely particularly on my son but also on my daughter to provide for us.

Given the instability in Afghanistan I would fear for our welfare, particularly my daughter."

As already noted, the Judge in fact found that, contrary to the reference to having "only distant relatives" in Afghanistan, Mr Noory did have a brother in Kabul.

(2) Masooma in her witness statement dealt with her relations with her brother and sister. She said that she had been very successful at her school in Tehran and that since coming to this country she had undertaken a full-time English course. As regards the position if she and her father and mother were returned to Afghanistan she said this:

"I do not know how I could continue with my studies in Afghanistan. I would be scared to attend any form of education there. I think that I could easily become a target, particularly if I excelled in my studies.

I would feel very scared to go to college on a daily basis, looking over my shoulder would be the least of my problems.

I think my parents at their age would be extremely anxious not only for their own welfare but also mine."

6

The Judge rejected the claim under the Rules essentially because, as he held, para. 317 did not apply in a case where an applicant had deliberately created the dependency on which he sought to rely; that was what, as he held, Mr Noory had done by giving up his job and his home in Iran and disposing of most of his assets. As regards the claim under article 8, his reasoning can be summarised as follows:

(1) At paras. 36–40 he set out relevant passages from the decisions of the House of Lords in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, Huang v Secretary of State for the Home Department [2007] 2 AC 167 and Beoku-Betts v Secretary of State for the Home Department [2009] AC 115.

(2) At paras. 41–43, applying the approach prescribed in Razgar, he accepted that the proposed removal of the Appellants would engage their rights under article 8, since they had established a family life in the UK over the previous year while they had been living with Abdul, and that those rights would be interfered with by their removal; but he held that such removal would be in accordance with law and for a reason capable of constituting justification under article 8 (2). Accordingly the essential question was whether their removal would be proportionate. In that connection he said, at para 43:

"The prospect under examination is of a 69 year old man, a 58 year old woman and their 16 year old daughter going to live in the extremely difficult circumstances that apply now in Afghanistan. A part of the evaluation is of course that the husband and wife have not lived there for almost 30 years and the daughter has never lived in that country. There is limited family support for them in that country. It is relevant to take into account that the second Appellant has chosen to visit Afghanistan in recent years and has chosen to take their young daughter with her."

He reminded himself at para. 44 that the relevant "family life interests" included those of the son and daughter in this country.

(3) Masooma being still a child, the Judge reminded himself, at para. 45, of the provisions of section 55 of the Borders Citizenship and Immigration Act 2009, which reads (so far as material):

" Duty regarding the welfare of children

(1) The Secretary of State must make arrangements for ensuring that—

(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b) …

(2) The functions referred to in subsection (1) are—

(a) any function of the Secretary of State in relation to immigration, asylum or nationality;

(b)-(d) …

(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).

(4)-(5) …

(6) In this section –

"children" means persons who are under the age of 18;

(7)-(8) …"

He also referred, at para. 46, to the Guidance issued by the Secretary of State in relation to section 55. He quoted in particular the statement in the Guidance that:

"The best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children."

He said that he had taken that Guidance into account.

(4) At paras. 47–48 he summarised the relevant considerations as regards the three Appellants as a family. Those paragraphs read as follows:

"47. I take into account the medical conditions of the first and second appellants but, as I have noted above, I do not see that they suffer from substantially restricting conditions. I am satisfied that there is a close bond between the appellants and the family members who are settled in the UK. But I also take into account my assessment that, in my view, the appellants have not been open and reliable in the way that they have entered the United Kingdom. As I have said...

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