SL & HA (Ethiopia – work permits – restrictions)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Allen |
| Judgment Date | 04 August 2009 |
| Neutral Citation | [2009] UKAIT 52 |
| Court | Asylum and Immigration Tribunal |
| Date | 04 August 2009 |
[2009] UKAIT 52
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
SENIOR IMMIGRATION JUDGE Allen
For the Appellant: Mr B Bedford instructed by Sultan Lloyd Solicitors
For the Respondent: Mr L Petryszyn, Home Office Presenting Officer (on 19 February)
Mr J Singh, Home Office Presenting Officer (on 4 August)
SL & HA (Ethiopia — work permits — restrictions) Ethiopia CG
A foreigner who wishes to be employed in Ethiopia will only be able to do so if there is no qualified Ethiopian for the activity in question. A UK-based non-Ethiopian without particular skills is therefore very unlikely to obtain a work permit in Ethiopia, though a short-term visit is unlikely to be problematic.
The first appellant is a citizen of Somalia and the second appellant is her younger sister, dependent on her. The first appellant (hereinafter referred to as the appellant) appealed to an Immigration Judge against the Entry Clearance Officer's decision of 15 December 2008 refusing to grant her and her sister leave to enter the United Kingdom as respectively the spouse and dependent relative of the sponsor Isa Fos Sharif, a person present and settled in the United Kingdom. It seems that the appellants have lived together since 2005 when they lost their parents.
The Immigration Judge accepted that the appellant and the sponsor were in a subsisting relationship. She found, however, that the appellant could not satisfy the requirements of the Immigration Rules in respect of maintenance. As regards Article 8, she found that there was family life between the appellant and the sponsor and allowed the appeal under Article 8.
The Secretary of State sought reconsideration of this decision, and reconsideration was ordered by a Senior Immigration Judge. On 8 December 2008 it was concluded by a Senior Immigration Judge that there was required to be a reconsideration of the Article 8 issue. The findings on the Immigration Rules were to stand. The decision of the Senior Immigration Judge is attached to this determination.
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“1. This is a reconsideration of the decision of Immigration Judge O'Garro who on 9 July 2008 allowed the appellants' appeals under Article 8 of the ECHR but dismissed their appeals under the Immigration Rules, in respect of the first named appellant paragraph 281 of HC 395.
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2. The Immigration Judge concluded on all of the evidence before her that the marriage was genuine and subsisting between the appellant and the sponsor in the United Kingdom, which had been an issue taken by the ECO. No challenge is made to that finding in her determination. However she also concluded on the evidence that the appellant could not meet the requirement to show that she and her spouse (the sponsor) would be able to maintain themselves and any dependants adequately without recourse to public funds. The Immigration Judge carefully considered the evidence of the sponsor's finances in relation to this finding and concluded that his income fell well below the public benefit level which is the yardstick to be used.
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3. However, when she came on to consider the appellant's Article 8 ground of appeal, the Immigration Judge having concluded quite properly that there was family life in existence between the appellant and the sponsor, found at paragraph 39 that the appellant could not enjoy family life with her sponsor where she currently lives in Ethiopia because the sponsor had not legal right to enter Ethiopia for settlement. The sponsor had not long been granted refugee status in UK and had begun to form a settled life there. In addition the rest of his family was in the United Kingdom. Neither party could of course return to Somalia, their original country of origin, to enjoy family life.
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4. Whilst recognising that the state did not have an obligation to respect an applicant's choice of country of residence, the Immigration Judge found for those reasons that there were clear insurmountable obstacles to the family enjoying family life anywhere other than in the United Kingdom. In reaching this conclusion she also took into account that the appellant herself fled Somalia to seek refuge in Ethiopia and was living under harsh conditions and was a vulnerable single woman with two young children. She also took into account the impact their separation would have on the sponsor who wished to be reunited with his family.
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5. In the grounds of the application the respondent submits that the Immigration Judge has given a lack of reasons for finding that there are insurmountable obstacles to the appellant enjoying family life outside of the UK. It was submitted that the reason that the Immigration Judge gave were not adequate and that the statement that the appellant was living under harsh conditions and was a young single woman was not sufficient. The error was further compounded, it was submitted, because it was accepted the sponsor had visited the appellant in Ethiopia which resulted in her becoming pregnant. There was no evidence before the Immigration Judge that the sponsor could not settle legally in Ethiopia.
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6. The Senior Immigration Judge who ordered reconsideration also identified the fact that the judge appeared not to have taken any account of her finding that the appellant could not meet the requirements of the Immigration Rules in relation to maintenance and weighed that in the balance between the public interest and the private right.
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7. In his submissions Mr Smart said that the Immigration Judge had no evidence at all before her that the sponsor had no legal right to reside in Ethiopia and no evidence as to the circumstances in which the appellant was living in Ethiopia. In addition she appeared to have failed to take into account what the ECO had said about the conditions in which the appellant had to live in Ethiopia in his notice of decision. He submitted that the Immigration Judge had failed to take properly into account the fact that the appellant could not meet the maintenance requirements of the Rules and that as the Deputy President in KA (Adequacy of maintenance) had pointed out, it was extremely undesirable to foster situations where immigrant families might have to exist on money less than social benefits, which in turn would create a much lower standard of living for those persons. In this case the family would be living below the breadline and it was material factor to take into account in deciding the proportionality of the respondent's decision.
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8. In response, Mr Pipe who had filed a Rule 30 reply in which he relied said that the sponsor had only visited Ethiopia on one occasion. He also submitted the judge properly directed herself as to the relevant law. The sponsor has refugee status in the United Kingdom and it was relevant that consideration should have been given, as the judge did, to the consequences of the sponsor having to give up his residence and status here to live in a country where his standard of living would not be nearly as good. In addition, the sponsor had extended family in the United Kingdom. The judge had recognised the state has no obligation to respect the applicant's choice of residence but she then identified the circumstances in which the appellant was living in Ethiopia and the fact she had originally had to flee Somalia. She was living with the second appellant, her 6 year old sister, and had recently given birth to the couple's first child. She would therefore be a young woman living in Ethiopia with two very small children, one a babe in arms. The judge had considered the continued separation of the family and indeed the rights of all members of the family in reaching her conclusion. He submitted that the judge had given proper reasons for finding that it was not reasonable to expect the sponsor to join the appellant in Ethiopia.
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9. In relation to the adequacy of maintenance point, Mr Pipe submitted that although the judge had made no specific reference to this, she would not have considered Article 8 at all had she found that the provisions of paragraph 281 were met. Although he accepted the shortfall in the maintenance requirements implicitly had to be considered in the balance, it did not outweigh the other considerations that the Immigration Judge had taken into account. He submitted there was no material error of law in her determination.
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10. I find the judge has materially erred in law in her approach and for the reasons that follow, there should be a full reconsideration of the Article 8 ground of the appeal.
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11. It is not correct, as Mr Pipe submitted, that if the Immigration Judge found that paragraph 281 was met, that she would not have needed to go on to consider Article 8. The appeal on Article 8 grounds is separate and distinct and although an Article 8 balancing exercise will clearly be influenced by an out of country. …. the appellant's ability to meet the requirements of the Immigration Rules, that is not the end of the matter. However in my view the Immigration Judge in reaching her conclusion on the Article 8 ground of the appeal did fail to take into account a number of material issues, not least of which was that she failed to give any weight at all to the fact that the appellant and her husband cannot show that they have adequate money to live on, bearing in mind that there are now two children to support. That was a material consideration it should have weighed in the balance. However, it is not the sole factor and there are a number of other relevant factors that had to be considered and in my view the Immigration Judge has failed to do so adequately and properly.
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12. First of all, the Immigration Judge reached the conclusion that the sponsor would not be able to live in Ethiopia without giving any reasons at all, save that she accepted the appellant's case that that...
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Upper Tribunal (Immigration and asylum chamber), 2009-12-16, [2009] UKAIT 52 (SL and HA (Ethiopia, work permits, restrictions))
...serif; font-size: 12pt; so-language: ar-SA } a:link { color: #0000ff } SL & HA (Ethiopia – work permits – restrictions) Ethiopia CG [2009] UKAIT 00052 Asylum and Immigration Tribunal THE IMMIGRATION ACTS Heard at Birmingham On 19 February 2009 and 4 August 2009 Before SENIOR IMMIGRATION JUD......