R (EKINCI) and The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Simon Brown,Lord Justice Kay,Mr Justice Bodey
Judgment Date17 June 2003
Neutral Citation[2003] EWCA Civ 765
Docket NumberCase No: C1/2002/2266/QBACF
Date17 June 2003
CourtCourt of Appeal (Civil Division)

[2003] EWCA Civ 765

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(QUEEN'S BENCH DIVISION - ADMINISTRATION COURT)

(Mr Justice Roderick Evans)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Justice Simon Brown

(Vice-President of the Court of Appeal Civil Division)

Lord Justice Kay and

Mr Justice Bodey

Case No: C1/2002/2266/QBACF

Between:
The Queen (on the Application of Ekinci)
Appellant
and
The Secretary Of State For The Home Department
Respondent

C Jacobs Esq (instructed by Duncan Lewis & Co) for the Appellant

A Underwood Esq, QC & J P Waite Esq (instructed by The Treasury Solicitor) for the Respondent)

Lord Justice Simon Brown
1

The appellant is a Turkish citizen who arrived in this country in April 1999 and claimed asylum, untruthfully asserting that he had not previously sought asylum in another EC country. Shortly after arrangements were made for his removal to Germany under the Dublin Convention, he married a British wife. The Secretary of State refused his application to remain on the grounds of his marriage and again issued removal directions. The appellant having asserted through solicitors that such removal would breach article 8 of the ECHR, the Secretary of State by letter dated 17 April 2002 certified the allegation to be manifestly unfounded, thereby disentitling the appellant to an appeal under s65 of the Immigration and Asylum Act 1999 ("the 1999 Act"). That is the decision under challenge in these proceedings, a challenge dismissed by Roderick Evans J on 23 October 2002.

2

The Secretary of State acknowledges that the appellant's removal to Germany would interfere with his right to respect for his family life but contends that this would be proportionate having regard to the public interest in maintaining effective immigration control and deterring abuse of the asylum system. Given the requirement for a foreign national seeking settlement in the UK as a foreign spouse to hold prior entry clearance for that purpose, the Secretary of State submits that the appellant ought not, by marrying a British citizen whilst in this country without leave, to be permitted to escape that control. The appellant's challenge to that approach centres upon his contention that he would not in any event qualify for entry clearance since he would be unable to maintain himself without recourse to public funds. The Secretary of State's response is that the question whether or not the appellant would strictly qualify for entry clearance is at the present stage immaterial: any long term article 8 claim that he has now would be that much stronger when the question of entry clearance comes to be considered and it is then that it should be brought into account, not at this stage: all that has to be justified now is the interference with the appellant's family life pending the determination of an entry clearance application made in Germany.

3

With that brief introduction let me turn at once the background to the case which is admirably set out in the judgment below from where I gratefully take it.

"4. … The appellant was born in Turkey in September 1970. On 2 April 1999 he arrived at Dover. He claimed to have left Turkey on 26 March 1999 and to have travelled clandestinely concealed in lorries, disembarking only on the ferry to this country. He stated that he had never sought asylum in any other European Union country. This account, however, was wholly untrue.

5. Enquiries were made of other countries by the defendant and on 14 July 1999 confirmation was received from Germany, who had made a positive fingerprint match, that the appellant had entered Germany on 29 September 1991 and that he had applied for asylum there on 1 October 1991. That application had been refused with effect from 7 November 1994. He had last applied for asylum in Germany on 18 August 1998; that application had been refused on 11 November 1998.

6. On 6 October 1999, in response to a request from the United Kingdom, Germany accepted responsibility for the examination of the appellant's asylum claim under the provisions of Article 8 of the Dublin Convention; Germany being the first member state where asylum had been sought and an asylum application made. Two days later, on 8 October 1999, the appellant's asylum claim in the UK was refused under the provisions of section 2 of the Asylum and Immigration Act 1996.

7. On 29 October, in breach of the conditions attached to his temporary release, the appellant failed to attend at Dover for service of the defendant's certification letter. No explanation was ever given for his failure to comply with that reporting condition. On 11 November 1999 Germany agreed to extend the deadline for the appellant's return to Germany and on 22 of that month the appellant again failed to attend at Dover for service of the defendant's certification letter and again there was no explanation for this. On 27 January 2000 the appellant for the third time failed to attend at Dover for service of the defendant's certificate. An absconder action was initiated, but on 13 February 2000 absconder action was discontinued as the whereabouts of the appellant had been provided by his solicitors. Following that, on 28 February 2000 the appellant was served with the defendant's certification letter refusing his application for asylum on third country grounds.

8. On 1 March 2000 arrangements were made for the appellant's removal to Germany on 8 March. On 5 March the defendant was informed that the appellant's then solicitors had lodged an application for permission to apply for judicial review under number CO/819/00. The appellant's removal to Germany was cancelled and Germany was informed, yet again, that the appellant would not be keeping the arrangements that had been made and that he had initiated suspensive legal proceedings.

9. In May 1999 the appellant had started a relationship with Safiye Armagan a lady whom he met when they were both in Turkey. She lived in the United Kingdom and in January 2000 she had obtained British citizenship. They became engaged in April 2000; that is a month after the application for permission to apply for judicial review had been made. A month after that, on 10 May 2000, the appellant married Ms Armagan. The defendant, however, was not aware of that marriage for a further eight months. On 25 January 2001 a marriage application was received by the defendant. This was not actioned, as the appellant's judicial review application was still pending. On 14 February 2001 a letter was sent to the appellant's solicitors asking for a copy of the grounds of relief which he had submitted to this court. No reply was received. A similar letter was sent on 8 March 2001. Again, no reply was received. On 7 July 2001 a son was born to the appellant and his wife. On 6 August 2001 a new firm of solicitors acting for the appellant wrote to the defendant to inquire as to the progress with the marriage application; that is the application to allow him to stay in this country.

10. On 22 August 2001 a copy of the grounds which the appellant had submitted to this court was obtained by the defendant directly from the court. Those grounds asserted the appellant's support of the PKK; his lack of documentation; and that his likely treatment if returned to Turkey would infringe his Article 3 rights.

11. On 19 February 2002 the defendant wrote to the appellant's solicitors to invite them to withdraw the first judicial review application. It was not withdrawn, but on 7 March 2002 it was dismissed. On 1 April removal directions were set for 18 April. On 16 April the appellant, now represented by further solicitors, was interviewed about his marriage. His solicitors asserted that his removal from the United Kingdom would be a breach of his Article 8 rights, on account of his marriage, and there then followed the [certification decision].

4

There followed the Secretary of State's letter of the 17 April 2002, certifying that the appellant's allegation of breach of his Article 8 rights was manifestly unfounded:

"2. After full and careful consideration, the Secretary of State has concluded that this allegation is manifestly unfounded for the following reasons.

3. The question for the Secretary of State is whether the potential interference with your client's right to respect for his family life, if he were to be returned to Germany, would be proportionate and commensurate when balanced against his legitimate concerns in the public interest to maintain a credible and effective immigration control to the United Kingdom, and to deter abuse of the asylum system.

4. Parliament has set a mandatory requirement for a foreign national seeking settlement in the UK as a foreign spouse to hold prior entry clearance for that purpose. The Secretary of State attaches the greatest weight to this mandatory requirement and he is firmly of the view that this requirement should be waived only in the most exceptional of circumstances.

6. The Secretary of State takes the view that it would be open to your client to apply at any British diplomatic post overseas for the appropriate entry clearance to enable him to return lawfully to this country to resume his asserted family life. In such circumstances the interference to your client's right to respect for family life would be temporary and would obtain only for the duration of the time it would take for him to apply for the requisite entry clearance and for his application to be processed.

7. It would also be open to your client's wife as an EU citizen to accompany him when he is returned to Germany and remain with him until such time as he gains entry clearance.

8. There are no...

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