SA (Ambit of s 85(5) of 2002 act) Pakistan
| Jurisdiction | England & Wales |
| Judgment Date | 25 January 2006 |
| Neutral Citation | [2006] UKIAT 18 |
| Date | 25 January 2006 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
Mr D K Allen, Senior Immigration Judge, Miss K Eshun, Senior Immigration Judge and Ms P L Ravenscroft, Non-legal member
Representation
Mr Peter Deller, Home Office Presenting Officer, for the Entry Clearance Officer;
Miss S Sher instructed by RFK Solicitors for the Claimant.
Cases referred to:
DR (ECO: Post-decision evidence) Morocco* [2005] UKIAT 00038; [2005] Imm AR 205; [2005] INLR 117
Huang v Secretary of State for the Home Department; Abu-Qulbain v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 105; [2005] Imm AR 240; [2005] INLR 247
LS (Post-Decision evidenceDirectionAppealability) Gambia [2005] UKAIT 00085; [2005] Imm AR 310; [2006] INLR 61
R (on the application of Mahmood) v Secretary of State for the Home Department [2000] EWCA Civ 315; [2001] Imm AR 229; [2001] INLR 1
The Entry Clearance Officer, Dhaka v Fouzia Noreen (01 /TH/00104)
Legislation judicially considered:
Nationality, Immigration and Asylum Act 2002, ss 82, 84 and 85(4)(5)
Immigration entry clearance s 85(5) of the Nationality, Immigration and Asylum Act 2002 circumstances appertaining at the time of the decision human rights Article 8 of the ECHR family life proportionality insurmountable obstacles
The Claimant, a citizen of Pakistan, applied for entry clearance to join her husband, who had been granted indefinite leave to remain in the United Kingdom in 2002 on the basis of his long residence. The Entry Clearance Officer (ECO) rejected the Claimant's application in a decision dated 21 January 2004. On 15 January 2005 the Claimant gave birth to a son. The Immigration Judge dismissed the Claimant's appeal under the Immigration Rules HC 395 (as amended), finding that the Sponsor had acquired a domicile of choice in the United Kingdom and the couple's marriage was void as the Sponsor had not obtained a divorce from his first wife that was recognised by the law of the United Kingdom. The Immigration Judge considered Fouzia Noreen (01/TH.00104), in which the Immigration Appeal Tribunal suggested that in such circumstances the remedy was for the Sponsor to obtain a divorce in the United Kingdom, allowing the Claimant to obtain entry clearance as a fiance in order to undergo a civil marriage to the Sponsor in the United Kingdom. The Immigration Judge considered this process to be unduly difficult and lengthy for the Claimant, given that she had a five-month old child. In light of the length of time that the Sponsor had lived in the United Kingdom and his degree of commitment to the United Kingdom, the Immigration Judge further found that it would be wholly unreasonable to expect him to relocate to Pakistan in order to maintain family life. The Immigration Judge found the ECO's decision disproportionate and allowed the appeal under Article 8 of the ECHR.
On reconsideration the ECO contended first, that the Immigration Judge had erred in law by taking into account the birth of the Claimant's son in view of s 85(5) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), which provided that in an appeal against refusal of entry clearance under s 82(1) of the 2002 Act, the Immigration Judge could consider only the circumstances appertaining at the time of the decision to refuse; secondly, applying R (on the application of Mahmood) v Secretary of State for the Home Department [2000] EWCA Civ 315, that there were no insurmountable obstacles to the Claimant's husband residing in Pakistan.
Held, substituting a fresh decision dismissing the Claimant's appeal against the decision by the ECO:
(1) The raising of a human rights issue in an appeal against the refusal of entry clearance under s 82(1) of the 2002 Act did not preclude the application of s 85(5); in the instant case, as the Claimant's child had not been conceived at the date of the decision to refuse entry clearance, the Immigration Judge erred in law in her assessment of the claim under Article 8 of the ECHR (paras 16, 18 and 19);
(2) Mahmood had not been superseded by the decision of the Court of Appeal in Huang and Others v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 105; in Mahmood the Court of Appeal was concerned with the proper analysis of claims under Article 8 of the ECHR whereas the decision in Huang set out the appropriate test for assessing proportionality(para 21);
(3) in the instant case, given the amount of time the Claimant's husband had spent in Pakistan before moving to the United Kingdom, it could not be concluded that there was an insurmountable obstacle to his returning to Pakistan to maintain family life; furthermore, the Claimant's circumstances could not be properly characterised as truly exceptional as it was not unusual for a young woman with a child to have to spend some time apart from her husband; the Immigration Judge erred in law since no reasonable immigration judge could have come to the same decision on the facts(paras 21 and 22).
Determination and Reasons
D K Allen, Senior Immigration Judge:
[1] The appellant is a citizen of Pakistan. She appealed to an Immigration Judge against the Entry Clearance Officer's decision of 21 January 2004 to refuse her entry clearance to join her spouse MI who is settled...
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