MA (Pakistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 27 July 2009 |
| Neutral Citation | [2009] EWCA Civ 953 |
| Date | 27 July 2009 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2008/3145 |
[2009] EWCA Civ 953
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/10123/2008]
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jacob
Lord Justice Sullivan and
Lord Justice Patten
Case No: C5/2008/3145
Mr S Canter (instructed by CLC Solicitors) appeared on behalf of the Appellant.
Mr J Hall (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
Lord Justice Sullivan:
This is an application for permission to appeal with the appeal to follow if permission is granted against the determination of Immigration Judge Rowlands, promulgated on 24 November 2008, dismissing the applicant's appeal against the respondent's decision dated 5 June 2008 to refuse him leave to enter the United Kingdom and to cancel his continuing leave.
Shortly after the refusal decision, the House of Lords' decision in Chikwamba v Secretary of State [2008] UKHL 40 was published on 25 June 2008. In paragraph 17 of the respondent's decision letter, there is the following passage at the conclusion of the respondent's discussion of the Article 8 issue:
“If the passenger wishes to enjoy his family life in the United Kingdom then it is open to him to return to Pakistan temporarily to apply for the appropriate entry clearance to join his spouse here. Alternatively there would appear to be nothing to prevent the appellant and his spouse from enjoying their family life in Pakistan.”
I refused permission to appeal on the papers. There was a renewed oral application for permission to appeal before Moore-Bick LJ, and I gratefully adopt the summary of the factual background that is set out in paragraphs 1–3 of his judgment adjourning that renewed oral application.
1. The applicant in this case was born in November 1984 and is now aged 24. He came to this country on an entry clearance as a student in September 2004 and in January 2006 his visa was extended to 13 October 2009. He was then taking a business management course at Middlesex University. In January 2007 the applicant was obliged to leave that course because financial support from his family was withdrawn and it became necessary for him to take up full-time employment.
2. In July 2007 the applicant married and he and his wife travelled to Pakistan, where unfortunately he fell out with his father and they returned to the United Kingdom. In January 2008 he returned to Pakistan believing that his father was ill and at that point the disagreement between them flared up again. His father retained his passport and the applicant was forced to remain in Pakistan for five months. He eventually returned to the United Kingdom on 5 June 2008. He says that he is concerned for his safety if he were to return to Pakistan because his father has influential friends.
3. Some time before the applicant returned to the United Kingdom, or possibly soon after he returned, the Secretary of State appears to have discovered that the applicant was no longer a student and cancelled his leave to remain in this country. He appealed against that decision and his appeal was dismissed, but in August 2008 a reconsideration was ordered because it was considered that the Immigration Judge had failed to consider the Human Rights implications of the decision.”
The reconsideration hearing took place before Immigration Judge Rowlands on 6 November 2008. The applicant conceded that he did not fulfil the requirements in the Immigration Rules for leave to enter, so the only issue for Immigration Judge Rowlands was whether the applicant's removal to Pakistan, where he would be able to make a further application for permission to enter the United Kingdom as the spouse of a British national in accordance with Rule 281, was a disproportionate interference with his and his wife's family life contrary to Article 8 of the European Convention on Human Rights (the Convention). It was conceded by the respondent that there was family life between the applicant and his wife, and the immigration judge correctly directed himself that, in accordance with the House of Lords' decision in Beoku-Betts [2008] UKHL 39, the effect on the family life of both the applicant and his wife had to be considered.
Although Mr Canter in his skeleton argument on behalf of the applicant makes a number of criticisms of the immigration judge's approach to the Article 8 question before him, it seems to me that there are two particularly striking features of this determination. First, it is in my judgment implicit in the immigration judge's reasoning in paragraphs 11 and 16 of the decision letter that he accepted that if this applicant was removed to Pakistan, he would be entitled to apply for entry to the United Kingdom as the spouse of a British national and, further, that his application would be likely to be successful. The immigration judge refers to paragraph 281 in paragraph 11 of the determination and says:
“It appears on the face of it that paragraph 281 of the Immigration Rules which applies to the spouses of persons present and settled here would apply and he would be able to return without any issues.”
The immigration judge returns to the implications of...
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