Mukarkar v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Lord Justice Sedley,Lord Justice Auld |
| Judgment Date | 25 July 2006 |
| Neutral Citation | [2006] EWCA Civ 1045 |
| Docket Number | Case No: C5/2005/2539 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 2006 |
[2006] EWCA Civ 1045
Lord Justice Auld
Lord Justice Sedley and
Lord Justice Carnwath
Case No: C5/2005/2539
HR/00385/2004
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Immigration Appeal Tribunal
Royal Courts of Justice
Strand, London, WC2A 2LL
Manjit Gill QC & Shazia Khan (instructed by Messrs. Howells) for the Appellant
Mr. P. Patel (instructed by Treasury Solicitor) for the Respondent
Judgment
Background
1. The appellant was born in January 1942 and is a citizen of the Yemen, where he lived until April 2000. He had been working with the Ministry of Labour until 1998, when he was injured in an accident. He came to this country in April 2000, ostensibly as a visitor, and was given 6 months leave to remain. He had given false information in order to obtain a visa. In November 2000 he applied, out of time, for indefinite leave to remain as a dependent relative under rule 317 of the Immigration Rules.
2. Rule 317 of the Immigration Rules makes provision for indefinite leave to be given to certain categories of dependant relatives of persons settled in the United Kingdom, under strictly defined conditions. They include (in summary) a parent who is over 65 and living alone, and who is financially dependent on a relative settled in this country. In the case of a parent who has not reached 65, the conditions are more rigorous; it is necessary to show that he is (or would be) “living alone outside the United Kingdom in the most exceptional compassionate circumstances…” (r 317((i) (e)) . The application would normally have to be made from outside the country.
3. The appellant has been married twice (the second wife being the sister of the first) , but is now separated. Both former wives now live in this country. Numerous family members are living in the UK, including three children by his first marriage, four children by his second marriage, twelve grandchildren (as at August 2005) , and two brothers. In April 2000 he travelled with his son, Adel, with whom he had been living in the Yemen. Adel also is now lawfully settled here. The only members of his close family still in the Yemen are two sisters, with whom he has had no contact for many years.
4. His application under the rules was refused in October 2001. At that time a report from his doctor (dated September 2001) showed that he was suffering from various medical problems, including damage to his left shoulder, osteoarthritis in his knees, degenerative back pain, and intermittent confusion (Adjudicator para 14) . In November 2001 he made an application under the Human Rights Act (relying on Articles 3 and 8 of the Convention) . It was refused in March 2002.
5. His appeal came before an Adjudicator, Mr Ince, in July 2004. By that time evidence before the Adjudicator showed that his medical condition had deteriorated seriously. A social work report showed that he was diabetic, frail, and prone to falling, and could be doubly incontinent. A letter from his doctor, Dr Mothersdale, stated that he was not mentally or physically capable of giving evidence, that he would not be able to survive without someone caring for him, and that he had a tendency to self-neglect (para 20–21) . He was living with, and being looked after by, his son Khalid (helped by his siblings) . Khalid's evidence (which I take to have been accepted by the Adjudicator) was that:
“This involved daily care because (he) could not look after himself. He had to be fed, clothed, escorted upstairs and downstairs and people had to check on (him) when he woke up… He (Khalid) had to share this responsibility because it was too much for one person. He really needed 24 hour supervision …” (para 22)
Khalid said that he could not accompany his father to the Yemen to apply for entry clearance, because he would lose his job; none of his siblings could accompany him because they all had their own responsibilities; there was no one in the Yemen who could look after him.
6. The Adjudicator reviewed the evidence of the medical facilities available in the Yemen, and of the appellant's ability to pay for them. He accepted that that appellant's need was not for particular medical treatment or for hospital care, but for “permanent and constant home help” which was currently being provided by his family. He also accepted that it was not reasonable to expect any of his children –
“to run the risk of losing their jobs merely to accompany him back to the Yemen to stay for an indeterminate period of time whilst the application is being considered or whilst he is waiting for an Appeal to be heard” (paras 39–40) .
7. He held that there would be a breach of both Article 3 and Article 8 of the Convention. Of the former he said:
“The Article 3 threshold is high but, in practice, if no one can realistically return to the Yemen with the Appellant, or if there is no one there to look after him and ensure that he takes his medication and is there to dress, feed and attend to the appellant's toiletry needs, then this does, in my opinion, amount to inhuman and/or degrading treatment as the Appellant's medical condition will deteriorate significantly through neglect as much as anything else.” (para 41)
8. On Article 8 he said:
“There is no dispute that family life exists, that the Secretary of State's decision violates it or that it is done so for an acceptable reason, namely the maintenance of good immigration control. What is in issue is the question of proportionality.
I have to ask myself whether any reasonable Home Secretary would expect the appellant to return to the Yemen by himself with his current ailments in circumstances where it is unreasonable to expect members of his family to, for instance, lose their jobs to accompany him or where there is no evidence that either the state or other members of his family are willing and able to look after him whilst his application is considered. I accept that the appellant gained entry to the United Kingdom by deception but it does not follow that he established family life here whilst here unlawfully – it was already established before he arrived and existed already before he became an overstayer. Furthermore, the reason for him remaining is due to his demonstrably worsening medical condition, some of which the Secretary of State was aware of. The position now is that he has demonstrably deteriorated since the Secretary of State considered this matter over two years ago. We have to deal with the situation as it pertains now and in the circumstances, given that I consider that there are insurmountable obstacles to the appellant returning to the Yemen to apply for entry clearance there, I consider that the appellant's current situation is such that no reasonable Home Secretary would find it proportionate to expect him to so return. I emphasise that I reach this decision because of the significant deterioration in the Appellant's health whilst he has been here. If the Appellant has indulged in a bit of queue jumping it is at a significant price due to the deterioration in his health. Consequently, I do not believe that allowing the appellant to remain here would send the wrong sort of message.” (para 42)
A straightforward case?
9. Although I will deal with the legal arguments in more detail, there is often a danger of over-complication in these cases. I will say at once that my initial view was that this was a straightforward case, and that Mr Ince's decision should have been allowed to stand under Article 8. As will be seen, that remains my view.
10. The relevant legal principles in relation to Articles 3 and 8 are now well settled, notably by the House of Lords decisions in N v SSHD [2005] UKHL 31 and Razgar v SSHD [2004] UKHL 27, respectively. In the light of the former (given since Mr Ince's decision) the Article 3 claim was in my view unarguable. By contrast, the case was clearly within the ambit of Article 8, in view of Mr Mukarkar's strong family ties and dependency in this country, and the serious disruption which would be caused by his removal, even for a short period. That much is not in dispute.
11. As Mr Ince recognised, the only issue was that of proportionality. In normal circumstances interference with family life would be justified by the requirements of immigration control. However, it is recognised that a different approach may be justified in “in a small minority of exceptional cases, identifiable only on a case by case basis” (per Lord Bingham, Razgar para [20]) . The House of Lords has declined to lay down a more precise legal test. Accordingly, whether a particular case falls within that limited category is a question of judgment for the tribunal of fact, and normally raises no issue of law (see Secretary of State v Akaeke [2005] EWCA Civ 947) .
12. On any view there were persuasive arguments of compassion and common sense for allowing a frail and ageing man to remain in the care of his close family, all of whom are now lawfully settled in this country. But there were strong arguments the other way. The question for the Adjudicator was whether these circumstances were sufficiently exceptional to override the ordinary requirements of immigration control, taking into account also the deceptive means by which he had entered the country. That issue was one of factual judgement, not law. Mr Ince, having identified the correct legal tests, and for reasons which were carefully and fully explained, decided that issue in the appellant's favour. Normally that would be expected to be the end of the...
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