SA (Entry clearance application in Jordan – proportionality)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge |
| Judgment Date | 19 January 2006 |
| Neutral Citation | [2006] UKAIT 11 |
| Court | Asylum and Immigration Tribunal |
| Date | 19 January 2006 |
[2006] UKAIT 11
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Mr H J E Latter (Senior Immigration Judge)
Mr N J Osborne (Immigration Judge)
For the Appellant: Miss S Latimer of the Immigration Advisory Service
For the Respondent: Mr B Bruten, Home Office Presenting Officer
SA (Entry clearance application in Jordan — proportionality) Iraq CG
In the light of evidence now available the Tribunal is satisfied that generally it is not disproportionate to a legitimate aim within article 8 (2) to require an Iraqi national to return to Iraq and travel to Jordan to make an application for entry clearance. There is significant further evidence to show that the guidance in KJ (Entry Clearance — Proportionality) Iraq CG [2005] UKIAT 00066 no longer applies.
This is the reconsideration of an appeal against the respondent's decision made on 16 January 2005 to remove the appellant as an illegal entrant. His appeal against this decision was originally heard by an immigration judge, Mr K.R. Doran, on 18 July 2005. Reconsideration was ordered on 17 August 2005.
The appellant is a citizen of Iraq from Kirkuk. He made an illegal entry into the United Kingdom on 19 December 2003 claiming asylum on arrival. His application was refused on 5 February 2004. An appeal against this decision was dismissed by an adjudicator on 11 May 2004. The appellant married on 24 July 2004. His wife is a citizen of Iraq resident in this country. The appellant made an application for leave to remain on this basis but this was refused for the reasons set out in the reasons for refusal letter dated 14 January 2005.
The appellant had based his claim for asylum on his membership of the Ba'ath Party and his alleged persecution in Iraq as a result. He said that his father had been a senior member of the party and had pressured him into joining in 1995. He said that he had become a senior member of the Ba'ath Party in 2001. He had been responsible for arresting draft evaders. For this reason he had developed a bad relationship with both the local Kurdish and Arab communities. He claimed that his father had been killed by the PUK despite an amnesty the PUK had declared for Ba'ath Party members. The appellant then fled to a friend's home before leaving Iraq with the help of an agent on 20 April 2003. He travelled to Turkey where he remained until December 2003 and then came to the United Kingdom.
The Adjudicator who heard the appellant's asylum appeal on 11 May 2004 did not find him to be a credible witness. He disbelieved the appellant's account and described his claim as opportunistic. He did not accept that the appellant had ever been a member of the Ba'ath Party and found that he could return to Kirkuk.
When the appellant arrived in this country he was married. He had a wife and two children who remained in Iraq. He divorced his wife in Iraq by Talaq in about May 2004 and married his present wife on 24 July 2004. He then made the application for further leave to remain on this basis. The respondent's refusal letter refers to the guidelines in DP3/96 for dealing with marriage applications from those who have overstayed. The appellant's case did not fall within that guidance as his marriage on 24 July 2004 did not predate by two years the service of notice of liability to removal. The respondent refused to exercise his discretion outside the concession, concluding that there were insufficient compassionate circumstances to justify such a course. It was the respondent's view that removal would not be disproportionate to a legitimate aim. It was asserted that it would be reasonable for the appellant's wife to accompany him on return to Iraq. He could make an application for entry clearance. There would be no interference with their family life. This assertion was withdrawn at the hearing before the immigration judge. It was accepted that it would not be reasonable for the appellant's wife to return with him. The respondent conceded that the appellant had established a private and family life but asserted that any interference by requiring the appellant to return to Iraq to make an application for entry clearance would be a proportionate exercise of immigration control.
On the basis of this concession, the judge said that the sole issue for him was whether or not the case was so exceptional on its particular facts that the imperative of proportionality demanded an outcome in the appellant's favour notwithstanding that he had no claim to remain in the United Kingdom under the existing Immigration Rules. He found that the appellant, then aged 33, had married his wife on 24 July 2004 at a time when his wife was aware that he had no legal status to remain in this country. He had two children from his first marriage in Iraq who lived with his mother there. He described the appellant as a healthy individual who may suffer from asthma but was not receiving ongoing treatment of either a psychological or physical nature. He did not wish to return to Iraq to make an application for entry clearance under the rules as he and his wife did not wish to be separated. The appellant also believed that if he returned to Iraq he would suffer the same fate as his father who he maintained had been killed by the PUK following the ending of the war in Iraq in 2001.
The judge held that the circumstances of the appellant in the United Kingdom on a personal basis did not amount to exceptional circumstances of the kind envisaged by the Court of Appeal in Huang [2005] EWCA Civ 105. The appellant's belief that he would suffer the same fate as his father if returned to Iraq could not come into the equation as his claim had been comprehensively dismissed by the Adjudicator at the appeal hearing in April 2004. There was no further evidence to suggest that those finding should be reconsidered within the terms set out in Devaseelan [2002] UKIAT 00702.
The judge said that the only factor requiring further consideration was whether the appellant could travel from Iraq to a neighbouring country to make an application for entry clearance without adverse consequences or a violation of his human rights. He referred to the Immigration Appeal Tribunal determinations in MN (Entry clearance facilities — availability) Iraq [2004] UKIAT 00316 and HC (Availability of entry clearance facilities) Iraq [2004] UKIAT 00154 where the Tribunal held that the possibility of any danger involved in travelling from Baghdad to Iran did not establish a reasonable likelihood that an appellant could not make the journey without adverse consequences sufficient to amount to a violation of his human rights. These decisions were contrasted with the country guidance determination in KJ (Entry clearance — proportionality) Iraq CG [2005] UKIAT 0066 which concluded, primarily on the basis of a letter from the UNHCR written in January 2005, that the evidence showed that it could not be argued that it was proportionate to require an appellant to return to Iraq to apply for entry clearance from a neighbouring country because of the dangers in travelling by road or flying to another country.
The judge took into consideration a letter from the British Embassy in Amman dated 20 March 2005 which said that between the period April and October 2004, 3,301 applications were made in Jordan by Iraqi nationals for entry clearance to the United Kingdom and that between October 2004 to mid-March 2005 3,399 such applications were made. The embassy was expecting to see a massive increase in applications during the summer period. The letter referred to the fact that road travel between Baghdad and Amman, Damascus and Beirut remained uninterrupted. Royal Jordanian and Syrian Airways flew regular services into Baghdad and Gulf Airways also operated regularly into Dubai. Those travelling from northern Iraq would usually travel across into Syria as the fastest and most convenient route. It would be easier for an Iraqi national holding a UK travel document to enter Syria than Jordan.
On the basis of this information the judge was satisfied that the dangers of travelling to Amman were not as real as supposed in the UNHCR letter of January 2005 and that the circumstances had changed to the extent that it was now proportionate to remove an Iraqi national to make such an application. He commented that many thousands had been doing so either in Jordan, Dubai or Syria. On this basis the appeal was dismissed.
In his grounds the appellant says that the details about travelling from Baghdad to Jordan and Syria were not provided. The Home Office representative had not produced these at court. The grounds go on to argue that Baghdad is not safe. The road from Baghdad is but not Baghdad itself. There had been bomb attacks and it would not be safe for the appellant to return and make an application. Reconsideration was ordered by the Senior Immigration Judge on 17 August 2005. He commented that it was arguable that there was discordance between the contents of the letter of 20 March 2005 from the British Embassy in Amman and the travel advice concerning Iraqi attacks in the grounds of appeal which was of clear relevance to the judge's assessment of risk on return. He added that the Tribunal would expect the parties to provide as much up-to-date evidence as possible at the hearing. The appellant was strongly advised to obtain legal representation.
At the hearing before us, the appellant was represented by Miss Latimer of the Immigration Advisory Service. She submitted a bundle of documents (A) indexed and paginated 1–34. Mr Bruten produced a bundle (R) paginated 1–17. Miss Latimer submitted that...
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