Appeal Under Sections 13 And 14 Of The Tribunals, Courts And Enforcement Act 2007 By Kamal Lardjani Against The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord President,Lord Brodie,Lord Malcolm |
| Judgment Date | 03 March 2016 |
| Neutral Citation | [2016] CSIH 14 |
| Court | Court of Session |
| Date | 03 March 2016 |
| Published date | 03 March 2016 |
| Docket Number | XA46/15 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 14
XA46/15
Lord President
Lord Brodie
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Appeal
under sections 13 and 14 of the Tribunals, Courts and Enforcement Act 2007
by
KAMAL LARDJANI
Appellant;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
Act: Lindsay QC, Winter; Drummond Miller LLP (for Livingston Brown, Glasgow)
Alt: McIlvride QC; Office of the Advocate General
3 March 2016
Introduction
[1] This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 19 June 2014, which adhered to a decision of a First Tier Tribunal upholding the respondent’s decision to refuse the appellant’s application for leave to remain. This Opinion must be read in conjunction with that in Muhammad Arslan Khan v Secretary of State for the Home Department [2016] CSIH 13.
Immigration History
[2] The appellant is an Algerian national. He entered the United Kingdom unlawfully from France on 25 December 1999. He had been arrested, after being found working illegally, on 11 July 2008. He claimed asylum, but withdrew his application. He was released upon reporting conditions, with which he failed to comply. He left his place of residence and was treated as an absconder. He was questioned on a criminal matter on 18 October 2011, when reporting restrictions were set up again. He married a British citizen on 15 February 2012. On 4 July 2012, he applied for leave to remain on the basis of his family life. Leave was refused on 25 September 2013. The appellant appealed.
[3] In its decision of 27 February 2014, the FTT noted that the marriage between the appellant and his wife was genuine and subsisting. The appellant had established a family life with his wife within the meaning of Article 8. The appellant’s evidence was that he would not feel safe living in Algeria. He is a Berber and Berbers have always been persecuted in Algeria. He is a Christian, but most of his family are Muslim. His father had asked him to leave the family home out of fear of repercussions. The appellant had come to the UK to feel safe. He had not, however, pursued a claim for asylum. The appellant and his wife could have no life in Algeria. He had no social, cultural or family ties in Algeria. Although his parents and siblings live in Algeria, he has no contact with them. His wife would not be able to cope. She could not speak the language and would not be able to adjust to life there. She had medical problems. She had a job here. She owned her home. In Algeria she would be destitute and would feel unsafe.
[4] The FTT held that, had the appellant been genuinely frightened of returning to Algeria, he would have made an application for asylum. Instead, he had entered the UK illegally and evaded immigration control until he was encountered by chance in July 2008. His actions were not those of a genuine asylum claimant.
[5] The FTT determined that it had not been demonstrated, in terms of the Immigration Rules (HC395) Appendix FM: family members Rule EX1.(b)), that there were insurmountable obstacles to family life between the appellant and his wife continuing outside the UK. Immediately after that finding, the FTT said:
“It follows that the appellant does not meet the requirements of EX1.(b) ... I do not accept the submission that the appellant’s wife could not reasonably be expected to relocate to Algeria and that removal of the appellant would be a disproportionate breach of their family life.”
After rejecting the appellant’s wife’s position on her medical state and her contention that she could not live in Algeria because she was a Christian, the FTT looked at the appellant’s private life, notably his illegal presence in the UK for 14 years. She continued:
“For the reasons which I have given above, I find that any interference ... in the appellant’s private and family life would be proportionate to the legitimate public end sought ... Having carried out the necessary Article 8 balancing exercise, I find that the factors weighing in favour of the appellant are outweighed by those in favour of the Respondent. I find that interference in the appellant’s private and family life is proportionate and that it is reasonable that the appellant should be expected to return to Algeria when he would be able to make an entry clearance application ...
In summary, I find that it would not be disproportionate to remove the appellant from the UK and that removal would serve the wider interests of the public. I do not accept that any return to Algeria to make an entry clearance application would be a serious disruption to the appellant’s family life and that it would be a disproportionate interference in the appellant’s and his wife’s family life.”
[6] In its decision of 19 June 2014, the Upper Tribunal held that it was unable to identify any...
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