McCall v Poulton
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Waller,Lord Justice Carnwath,Lord Justice Wilson |
| Judgment Date | 21 November 2008 |
| Neutral Citation | [2008] EWCA Civ 1263,[2008] EWCA Civ 1313 |
| Date | 21 November 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2008/1836,Case No: B2/2008/0297 and 4TN02981 |
[2008] EWCA Civ 1263
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT Nos: OA/50402/2006; OA/50479/2006; OA/50485/2006;
OA/50491/2006; OA/50500/2006; OA/50513/2006; OA/50507/2006;
OA/50505/2006; OA/50503/2006; and OA/50521/2006]
Lord Justice Sedley
Case No: C5/2008/1836
Ms I Sabic (instructed by Hersi & Co) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
This is a renewed application, skilfully made by Ms Sabic, for permission to appeal on behalf of nine appellants whose family reunion applications were refused in 2006 by the entry clearance officer (Addis Ababa) on the ground that the material marriage was polygamous. Let me say straight away that I am going to adjourn the applications of appellants 9 and 10, who are not the children of the second polygamous marriage but are said to be de facto adopted and who may therefore be assisted —one does not yet know —by the outcome of two appeals for which permission has been given and which are pending in this court in the cases of MK (Family Reunion Policy: Scope) Somalia v Entry Clearance Officer —Addis Ababa [2008] UKAIT 00020 and SA (Somalia). These are to be heard towards the end of November and concern the application of the Family Reunion Policy to de facto adopted children of a sponsor who has been recognised as a refugee in the United Kingdom. There will be liberty to restore those applications if so advised in the light of the outcome of that pair of appeals.
For the rest, the sponsor was a prosperous Somali trader with at one stage four wives and numerous children. His family life and his business were ruined by civil war. Of his two remaining wives, one, F, reached the United Kingdom with her children and has indefinite leave to remain with them. The other, M, was forced to take refuge in displaced persons camps in Ethiopia while the sponsor travelled to Kenya. From there he was able to reach the United Kingdom and to settle here by way of family reunion with F. I am told by Ms Sabic he now has indefinite leave to remain in his own right as a refugee. Understandably he now wants to bring M who is the first appellant and their seven children, together with the two adoptive children, to join him in this country.
Of the ten applicants, one, the eighth, A, has now been granted leave to remain and his application has accordingly been withdrawn. This was because he is not, it turns out, biologically M's child, although he is the sponsor's, with the result that he is not caught by the bar in the Immigration Rules on polygamous families. But the first ground of appeal (taking it from the skeleton argument and not the grounds, which are differently configured) now seeks to base the family's case on A's Article 8 right to have the rest of his family with him. That argument does not appear to have been separately considered by Immigration Judge Kebede, who conducted the rehearing that was ordered by Senior Immigration Judge Southern, but Tuckey LJ considered it to be an issue which could not possibly have affected the outcome of the remaining nine appeals, and I respectfully agree with him. The applicant had not arrived in the United Kingdom pursuant to the grant of entry clearance to him until February 2008. The appeal was heard in April. The situation could hardly be further from that envisaged in such cases as Beoku Betts v SSHD [2008] UKHL 39, which concerns the impact of removal of an unlawful entrant or overstayer on members of the family settled here within an Article 8 framework. There is no rational way in my view in which the eighth applicant's recent admission to the United Kingdom can be used by analogy as a key to open the door for the rest of his family. That is the role of the family reunion provisions of the Immigration Rules.
As to these, it is now accepted, as I understand it, that the prohibition of reliance on polygamous marriages for family reunion purposes operates in this case. This leaves the human rights claims of (as the application now stands) the first to seventh applicants under Article 8. The immigration judge accepted that Article 8 was engaged by the refusal of entry clearance but, in paragraph 57 of her decision, did not accept that the applicant's claims represented a near-miss simply because it was only the failure of the sponsor to follow his talaq divorce from F with a civil divorce that was causing his marriage to M to be treated as still polygamous. There is no challenge to the holding of the immigration judge that the entire scheme and object of immigration control was material to the question that arose for her under Article 8.2. This being so, the challenge is to her decision that the inability of M and her family to secure entry, notwithstanding the prohibition in the Rules on the admission of polygamous families, was not a disproportionate interference with their and the sponsor's family life.
I accept that issue may legitimately be taken with the second immigration judge's finding, contrary to that of the first immigration judge, that the sponsor's impending divorce from F is or was an instrumental divorce designed to clear the decks of the polygamy objection, but I do not accept that the second immigration judge was precluded by the terms of the order for reconsideration from doing so. The order, to be fair, is not entirely clear in its reasoning, but its terms were that all Article 8 issues were to be at large, and counsel then appearing for the appellants accepted this on the rehearing. But I do not think in any event that this was crucial. Accepting that the sponsor's desire to divorce F is genuine and that the immigration judge was wrong to speculate that even if it was genuine they might get together again once the present applicants had become settled here, there was in my view no basis for a near-miss argument: that is to say an argument that if the sponsor had only managed to go through with this civil divorce from F there would have been no obstacle to the applicant's entry, with the result that the Article 8 (2) hurdle was somehow reduced in height.
Today Ms Sabic has disavowed a near-miss argument, but each of her endeavours —if she will permit me to say so —to substitute a different argument has come back to the near-miss point, and it is in my view not a good point. In these circumstances there was no real relevance in the evidence for which the immigration judge refused an adjournment, which would have been that of one of the sons of the sponsor and F who might have testified to the true breakdown of their relationship. The Article 8 issue in my judgment was not how close the sponsor had come to divorcing F or how genuine the breakdown was; it was whether, notwithstanding that the polygamous character of his marriage to M prevented his bringing the applicants here by way of family reunion, to keep them out was a disproportionate interference with their family life. The immigration judge, as it seems to me, embarked on the genuineness of the sponsor's divorce from F only because counsel had developed the near-miss argument and the Immigration Judge legitimately considered it material in those circumstances to consider how near the miss actually was.
Today Ms Sabic is able to tell me that the sponsor is on the verge of securing a civil divorce from F. He has a decree nisi, which all being well will be made absolute early in November; by then, however, at least one of the applicants will reach the age of 18. That may be so, but it is not in itself an argument for operating Article 8.2 in the sponsor's or the applicant's favour meanwhile. Disproportionality was bound to be a difficult issue in this case, given that initially the sponsor's own presence here was by way of family reunion with F. The admittedly unfortunate finding in paragraph 70 of the determination that the sponsor could rejoin the family in Ethiopia is, it seems to me, a makeweight, though perhaps not a very worthy one. But the observation that follows, namely that if the divorce from F does go through it will be open to the applicants to reapply appears to be sound. Ms Sabic certainly submits that it is sound. It makes one wonder whether, instead of pressing on with this appeal, the sponsor would not have done better to have pressed on at an earlier date with his divorce. Nobody can suppose that the situation of the second family —M's family —in Ethiopia is less than wretched, but that alone does not secure admission to this country. Whether admission may be secured for the first to seventh applicants will depend upon what follows if and when a civil divorce is made absolute. The eighth applicant is now secure and I propose for reasons I gave at the start of this judgment to adjourn the applications of the ninth and tenth applicants to abide the outcome of the two cases pending in this court with liberty to restore. Any restoration had better be before me, Ms Sabic.
So the order is that in the case of applicants 1–7 permission to appeal is refused, the case of applicant 8 is withdrawn and the cases of applicants 9 and 10 are adjourned.
Order: 1–7, application refused; 8, application withdrawn; 9&10 application adjourned.
[2008] EWCA Civ 1313
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Canterbury County Court
His Honour Judge Mitchell
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
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