LH v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 24 January 2006 |
| Neutral Citation | [2006] UKIAT 19 |
| Date | 24 January 2006 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
The Honourable Mr Justice Hodge OBE, President, Mr K V Waumsley, Senior Immigration Judge and Professor A Grubb, Senior Immigration Judge
Representation
Mr S Ouseley, Home Office Presenting Officer, for the Secretary of State;
Mr A Alexander, for the Claimant.
Cases referred to:
Huang v Secretary of State for the Home Department; Abu-Qulbain v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 105; [2005] Imm AR 240; [2005] INLR 247
R (on the application of Ekinci) v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 765; [2004] Imm AR 15
R (on the application of Razgar) v Secretary of State for the Home DepartmentUNKELR [2004] UKHL 27; [2004] 2 AC 368; [2004] Imm AR 381; [2004] INLR 349
Shala v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 233; [2003] INLR 349
Legislation judicially considered:
Immigration Rules HC 395 (as amended), Rule 281
Human rights Article 8 of the ECHR proportionality relevance of prospects of success in a future application for entry clearance as a spouse
The Claimant, a citizen of Jamaica, remained in the United Kingdom after the expiry of his leave to enter in May 2001. In July 2004 he was arrested, after which he made an unsuccessful claim for asylum. At the hearing of his appeal he abandoned the asylum claim but asserted that removal would breach his right to family and private life under Article 8 of the ECHR. That claim was based on his relationship with a person settled in the United Kingdom who suffered from a depressive illness. They had two children together, one of whom suffered from cerebral palsy. Shortly after the appeal was heard, but before the decision was promulgated, the Claimant and his partner married. The Adjudicator allowed the appeal, finding that the Claimant's removal would lead to a disproportionate breach of his rights under Article 8; his prospects of success in an application for entry clearance as a spouse were almost negligible as he was unlikely to satisfy the requirements of Rule 281 of the Immigration Rules HC 395 (as amended), and his partner would be unlikely to cope with caring for herself and the children. The Secretary of State for the Home Department was granted permission to appeal. The grant took effect as an order for reconsideration by the Asylum and Immigration Tribunal.
Held, substituting a fresh decision dismissing the Claimant's appeal against the decision by the Secretary of State:
(1) the Adjudicator erred in law by assuming without justification that any application the Claimant might make to return to the United Kingdom would be unsuccessful (paras 10 and 13);
(2) in any event, a decision to remove would not lead to a disproportionate breach of his right to family life solely because any application to enter the United Kingdom as a spouse was likely to fail: R (on the application of Ekinci) v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 765 applied (para 14);
(3) the circumstances of this case were not truly exceptional so as to outweigh the need to maintain immigration control; once he left the United Kingdom and was no longer in breach of the Immigration Rules, any fresh application by the Claimant might meet the truly exceptional test even if he was unable to satisfy the requirements of Rule 281 (paras 22 and 23).
Determination and Reasons
Mr Justice Hodge, President:
[1] The appellant is a national of Jamaica, born on 28th July 1979. He came to the United Kingdom on 14th 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 8th July 2004. He then claimed asylum and that application was refused on 29th July 2004. He appealed.
[2] The appeal came on for hearing before an adjudicator (Mr M B Hussain) on 4th 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 21st October 2004, after the adjudicator hearing, but before the promulgation of the decision.
[3] 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...
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