LH (Truly exceptional – Ekinci applied)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hodge,President |
| Judgment Date | 24 January 2006 |
| Neutral Citation | [2006] UKAIT 19 |
| Court | Asylum and Immigration Tribunal |
| Date | 24 January 2006 |
[2006] UKAIT 19
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr Justice Hodge OBE, President
Mr L V Waumsley, Senior Immigration Judge
Prof A Grubb, Senior Immigration Judge
For the Appellant: Mr A Alexander (Counsel)
For the Respondent: Mr S Ouseley (Home Office Presenting Officer)
LH (Truly exceptional — Ekinci applied) Jamaica
(1) In determining whether an appellant's removal is disproportionate under Article 8(2) it is wrong to assume that an ECO will ignore or breach his, removal is not disproportionate merely because any such application would be unsuccessful; (3) to succeed, the appellant's circumstances must be “truly exceptional”.
The appellant is a national of Jamaica, born on 28 th July 1979. He came to the United Kingdom on 14 th April 2001 and was granted one month's leave to enter. He thereafter applied to remain as a student. This application was refused in July 2001. The appellant remained in the United Kingdom. He was arrested on 8 th July 2004. He then claimed asylum and that application was refused on 29 th July 2004. He appealed.
The appeal came on for hearing before an adjudicator (Mr M B Hussain) on 4 th October 2004. The appellant abandoned his asylum appeal at the hearing. However, he claimed that his removal from the United Kingdom would breach his right to a family and private life under Article 8 of the European Convention on Human Rights (ECHR). His Article 8 claim was and is based on his relationship with his then partner, Michelle Grant, and their two children. He married Ms Grant on 21 st October 2004, after the adjudicator hearing, but before the promulgation of the decision.
The adjudicator allowed the appeal. He regarded it as disproportionate that the appellant should be removed from the UK and that such removal would breach his Article 8 rights. The respondent applied for permission to appeal, claiming the adjudicator had erred in law in reaching the decision he did on the appeal. The application was granted and a reconsideration was ordered by a Senior Immigration Judge on 13 th April 2005.
By Article 5 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (Commencement No 5 and Transitional Provisions) Order 2005 ( SI 2005/565) any appeal which immediately before the commencement of the 2004 Act was pending before the Immigration Appeal Tribunal shall after commencement of that Act be dealt with by the Asylum and Immigration Tribunal as if it had originally decided the appeal and it was re-considering its decision.
The appellant and his wife have two daughters. The elder child, Rene, born on 28 th February 2002 has cerebral palsy. She requires a good deal of care. The evidence shows that the appellant lives with his now wife and their two children, and he provides important care and help, particularly for Rene.
It is uncontroversial that the appellant has no right under the Immigration Rules (HC395) to be or remain in this country. Indeed he had no such right since his leave to enter elapsed in May 2001, over three years before he eventually made the asylum claim in July 2004 which he abandoned in October 2004. He has throughout this period been in the United Kingdom unlawfully. He has no current entry clearance. He is liable therefore to be removed under the general provisions of the Immigration Rules.
Article 8 of the ECHR states:
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(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
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(2) There shall be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is 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.
A person who is in this country in breach of the Immigration Rules is liable to removal. The relationship between Article 8 rights and the Immigration Rules was analysed in Huang and others v Secretary of State for the Home Department [2005] EWCA Civ 105. As Laws LJ said at para 60
“The balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances.”
States are entitled under European jurisprudence confirmed in many UK cases to exercise immigration control even though there may be an interference with the private or family life of an individual subject to those controls.
In this appeal, the adjudicator said at para 19:
“Whilst the removal of a person unlawfully in the United Kingdom is in the interests of immigration control, that interest of the community has to be balanced against the impact on the individual concerned. In this case, I find that if this appellant is removed from this country, then although it is open to him to apply to return as the fiancÉ of Michelle Grant, the prospect of that application succeeding is almost negligible and the impact on the appellant's spouse and their children disproportionate. I come to this view, because one does not know how long it will be before the appellant will be able to obtain a visa (if at all) and in the meanwhile Michelle Grant would be left to look after two young children. Given her vulnerability as a person on medication for depressive illness and given the severe condition of the appellant's first child, in my judgment she is unlikely to cope with either looking after herself or her children. As a result they would all suffer”.
This is plainly wrong in law. In R (Ekinci) v Secretary of State for the Home Department [2003] EWCA Civ 765, the Court of Appeal dealt with a very similar case to this appeal. There a Turkish citizen was unlawfully in the UK. Whilst here he had married a British citizen. A son had been born to them. That son had an illness which required an operation. Mrs Ekinci was caring for her 82 year old mother, who was semi mobile and dependent upon her. His wife and child could not join Mr Ekinci in Germany to where he was to be removed.
It was argued on behalf of the appellant in Ekinci that it would be wrong to return him to Germany and require him to apply for entry clearance there, because he would on any such application fail to qualify. The Secretary of State replied that it was immaterial whether or not the appellant will qualify for entry clearance in the future. That should be decided when the time comes for the appellant to apply for such entry clearance. Simon Brown LJ regarded that argument as unanswerable. He said at para 17:
“it would be a bizarre and unsatisfactory result if, the less able the applicant is to satisfy the full requirements of entry clearance, the more readily he should be excused the need to apply…….it is entirely understandable that the Secretary of State should require the appellant to return to Germany so as to discourage others from circumventing the entry clearance system”.
The court also quoted Keane LJ at para 10 in Shala v SSHD [2003] EWCA Civ 233.
“it is important that those without leave to enter or remain, should not be able to exploit the procedures so as...
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