R Anand Narencha Kotecha v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Burnett |
| Judgment Date | 29 July 2011 |
| Neutral Citation | [2011] EWHC 2070 (Admin) |
| Date | 29 July 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4852/2010 & CO/5952/2010 |
[2011] EWHC 2070 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Burnett
Case No: CO/4852/2010 & CO/5952/2010
The Queen on the application of Ruma Rani Das
Mr Zane Malik (instructed by Malik Law Chambers) for the Claimants
Miss Lisa Busch (instructed by Treasury Solicitors) for the Defendant
Hearing date: 12 th July 2011
Introduction
Mr Kotecha and Mrs Das are both overstayers having entered the United Kingdom legally. Each married after their leave had expired. Each made an application for leave to remain in the United Kingdom as the spouse of, respectively, a British citizen and, a Bangladeshi national with indefinite leave to remain. Both applications were refused by the Secretary of State. There was no right of appeal because at the time when the applications were made neither applicant had extant leave to be in the United Kingdom. Thus the procedure open to both Mr Kotecha and Mrs Das was to leave the United Kingdom and make an application for an entry clearance on the same basis from abroad. Neither complains that the decision of the Secretary of State was unlawful under the relevant immigration rule, but each says that the requirement to leave the United Kingdom amounts to a breach of the rights protected by article 8 ECHR.
These two cases have been linked because in granting permission in Kotecha Mitting J said identified a possible conflict between the law on article 8 in the United Kingdom and as applied by the Strasbourg Court. In Das, although permission to apply for judicial review was refused on paper, Irwin J granted permission at an oral hearing, I am told on much the same basis.
Both Mr Malik, who appears for the claimants, and Miss Busch, who appears for the Secretary of State, submit that the domestic law has indeed parted company with the approach of the Strasbourg Court. The result, they suggest, is that the removal of individuals who are the partners of people present and settled in the United Kingdom has become almost impossible, at least in cases which do not involve those convicted of serious criminal offences. For that reason, whatever the outcome of these challenges, both sides have raised the possibility of a leapfrog appeal to the Supreme Court to enable that court to undertake a comprehensive review of the law relating to article 8 in removal cases.
Before turning to the legal issues which arise in these cases I shall set out the facts. It is necessary to do so comprehensively because any consideration of an article 8 claim requires close attention to the particular facts of the case. The House of Lords and Supreme Court have consistently emphasised the need for a careful evaluation of the individual circumstances in article 8 claims. But it is the common experience in this court, and also in the First Tier and Upper Tribunals, that the facts are set out in correspondence or in statements in a perfunctory fashion, which can make a careful and informed evaluation far from easy.
Kotecha Facts
Mr Kotecha is a citizen of Tanzania who was born on 9 October 1979. He came to the United Kingdom in October 2000. Thereafter he made a series of successful applications for leave to remain as a student. The last, which was granted on 21 December 2005, expired on 30 November 2006. He did not leave the United Kingdom or make any further application. On 5 December 2009 Mr Kotecha made an application for leave to remain as the spouse of a British citizen, Charlotte Cameron. They had married on 11 July 2009. The application was made on the appropriate form. Answers to questions on that form indicated that the couple had met in Basildon town centre in November 2006, commenced cohabitation in November 2007 and decided to marry in the first week of October 2008. Mr Kotecha's answers to questions on the form candidly admitted that he was working, which he should not have been. That admission was made in the context of dealing with the issue of whether the couple could support themselves without recourse to public funds. There are no children of the marriage. Both Mr Kotecha and his wife signed the standard declarations at the end of the form to attest to the fact that they remained married, were living together and intended to continue to live together.
The covering letter from Mr Kotecha's solicitors enclosed the documents required to support such an application, mostly to demonstrate that the couple were married, living together as man and wife and not in need of public funds. No further facts were supplied.
Paragraph 284 of the Immigration Rules governs applications for leave to remain in the United Kingdom as a spouse or civil partner of a person present or settled in the United Kingdom. One of the requirements is that the applicant has not remained in breach of immigration laws. It follows that the application was bound to be refused under paragraph 284. The refusal letter dated 22 February 2010 noted the immigration history but then continued:
"In taking this decision regards have been given to the UK's obligations under Article 8 of the ECHR. It is a well-established principle of law that every state has the right to control the entry of non-nationals into its territory. Article 8 does not give a person the automatic right to choose to pursue his or her family or private life in the UK.
In the House of Lords decision Huang & Kashmiri [2007] JK HL 11. The Lords established that the ultimate question to be asked in assessing the required test of proportionality is whether the refusal of leave to enter or remain, in circumstances where the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. Specifically we have weighed up the extent of the possible interference with your client's private life / family life, against the legitimate need to maintain an effective national immigration policy. In light of the circumstances of your client's particular case we consider that our actions are proportionate to the social need being fulfilled. Moreover your client's private life continued to be established while he remained in this country unlawfully, in the knowledge that he has no right to be here and may be removed at any time.
In the more recent case of the Hose of Lords decision in Beoku-betts V Secretary of State [2008] there are significant differences between the specifics of that case and the circumstances of your client. The appellant was appealing against removal to a country where there was political civil unrest at the time he fled, this was accepted. Your client from Tanzania, at the time of his entry into the UK, Tanzania was not going through political civil unrest at the time he fled. We do not therefore accept that the decision to proceed with your client's removal from the United Kingdom would breach Article 8.
The case of House of Lords in Chikwamba is also significantly different in that the Spouse was a refugee in the United Kingdom and could not return to the home country of Spouse, but in your client's case his wife is a British citizen, it is open to her to travel to Tanzania to accompany your client. If this is not possible then separation would be temporary as your client has an option to apply for an appropriate entry clearance abroad and can re-enter the UK." (quoted as written)
The decision letter went on to consider paragraph 395C of the Immigration Rules, which is concerned with factors to be taken into account before a decision to remove is made but concluded that there were no compelling or compassionate circumstances to justify allowing Mr Kotecha to remain. Neither did the Secretary of State consider that Mr Kotecha should be allowed to remain in the United Kingdom outside the rules. Removal action was not taken. Instead Mr Kotecha was told he must leave.
Mr Kotecha and his wife made further representations that being required to leave the United Kingdom would violate their article 8 rights. Affidavits were sworn by each on 15 March 2010. The Secretary of State was unmoved. These proceedings were issued on 21 April 2010.
The totality of the additional information put before the Secretary of State in support of the article 8 claim was as follows. Mr Kotecha said that his ties with the United Kingdom had grown to be very strong and that he dreaded being separated from his wife. He did not want to start a new life in Tanzania. He had eroded his ties with Tanzania. His friends were here, he was integrated here and spoke English. Mr Kotecha pointed out that he was respectable and law-abiding. In a section of his affidavit entitled 'Why I cannot leave the UK to make a fresh application', Mr Kotecha said this:
"12. I foresee a peaceful and blessed future life in United Kingdom. I consider the United Kingdom as my homeland. I cannot return to my native country just to complete a formality of making an application from there. I feel that if I am able to satisfy the rules from within the UK then it would be most unfair to simply ask me to go back to Tanzania for procedural reasons.
13. I have no family in Tanzania at all. Similarly my wife cannot return to Tanzania to live with me permanently as she has no connections to the Country and is by all means settled in the UK and it would be grossly unfair for her to have to leave all her family connections in order to settle with me in Tanzania.
14. It is absolutely incomprehensible for us to put our lives on hold...
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