TK (Immigration Rules–policy-Article 8)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge P R Lane |
| Judgment Date | 12 March 2007 |
| Neutral Citation | [2007] UKAIT 25 |
| Court | Asylum and Immigration Tribunal |
| Date | 12 March 2007 |
[2007] UKAIT 25
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
SENIOR IMMIGRATION JUDGE Chalkley
SENIOR IMMIGRATION JUDGE P R Lane
For the Appellants: Mr M Harris, Counsel, instructed by Messrs Barnes Harrild & Dyer Solicitors
For the Respondent: Mr G Saunders, Senior Home Office Presenting Officer
TK (Immigration Rules — policy-Article 8) Jamaica
The policy of the Secretary of State, to which the Immigration Rules give effect, is essentially a matter for the executive and legislature. Care must accordingly be exercised in considering submissions which involve an assertion that an appellant falls within the spirit of the Rules. Even if an appellant's case can properly be found to fall within the spirit of a particular provision of the Rules, her case does not thereby become a wholly exceptional one, for the purposes of Article 8. That finding will be one factor to consider in deciding whether, in all the circumstances, the immigration decision, if implemented, would involve a violation of her article 8 rights. Where her case falls within the ambit of another provision of the Rules, but she is unable to meet its requirements, the weight to be given to that factor is likely to be limited.
The appellants, female citizens of Jamaica born respectively on 20 June 1987 and 25 January 1990, applied on 15 June 2005 for entry clearance to the United Kingdom in order to join their father, the sponsor, a person present and settled in this country. On 11 July 2005 the respondent refused the appellants' applications and they appealed against that decision to the Tribunal. Their appeal was heard at Hatton Cross on 16 August 2006 by Immigration Judge Knowles. He dismissed the appellants' appeals. On 15 September 2006 reconsideration of the Immigration Judge's decision was ordered under section 103A of the Nationality, Immigration and Asylum Act 2002.
The relevant provision of the Immigration Rules is as follows:
“ 297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:
(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
(a) both parents are present and settled in the United Kingdom; or
(b) both parents are being admitted on the same occasion for settlement; or
(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or
(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child's upbringing; or
(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; and
(ii) is under the age of 18; and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and
(v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and
(vi) holds a valid United Kingdom entry clearance for entry in this capacity.”
The background to the application is as follows. The sponsor married the mother of the appellants in 1986 in Jamaica. He left that country in 1998 and claimed asylum in the United Kingdom. It is common ground that the sponsor has never been recognised as a refugee. The mother left Jamaica in March 2001 for the United Kingdom, taking with her the two younger sisters of the appellants. The basis on which the mother gained leave to enter the United Kingdom was as a student. The sponsor was granted indefinite leave to remain in the United Kingdom on 4 April 2005. Given that the sponsor was then ordinarily resident in the United Kingdom, he became on that day “settled”, as defined in paragraph 6 (interpretation) of the Immigration Rules. The sponsor and the two younger daughters obtained indefinite leave to remain by reason of the Secretary of State's Family ILR Exercise.
The appellants' mother did not have indefinite leave to remain in the United Kingdom at the date of the decision; nor does she have such leave today. By the date of the hearing before the Immigration Judge, the mother had, however, been given limited leave to remain until January 2008, on the basis of her marriage to the sponsor.
After their mother left Jamaica, the appellants lived in that country with their maternal aunt, their maternal grandmother and a cousin. Each of the appellants had her own room in the home of the aunt, who looked after them, with the assistance of the grandmother.
At the hearing, the Immigration Judge was told by the sponsor that his wife did not bring the appellants with her when she came to the United Kingdom in 2001, as he and his wife had taken the view that it would be better for their education if the appellants remained in Jamaica. The sponsor told the Immigration Judge that he had not visited Jamaica as he had been working to support his family but his wife had returned on one occasion to Jamaica. The appellant's mother confirmed that she did not bring the appellants with her because she did not wish to disturb their education. She had returned to Jamaica in 2003 for a month. She said that one of the appellants had been sexually assaulted in Jamaica. When it was put to her that she could return to live with the appellants in Jamaica, she said that this would have the effect of splitting up the family. It was put to her that she had caused that to happen when she came to the United Kingdom. She replied that that was not intended to be a permanent arrangement. When asked what prevented the sponsor from returning with her to Jamaica, she said that he had been working in that country as a security guard and had prevented a robbery. As a result, he had been threatened and he feared for his life, even though eight years had elapsed. In addition, one of the two daughters who were in the United Kingdom tended to become fearful when she read about violence in Jamaica.
In his findings, the Immigration Judge concluded that the appellants satisfied the maintenance and accommodation requirements of paragraph 297. So far as paragraph 297(i)(f) was concerned, the Immigration Judge concluded on the evidence that the appellants had not shown that there were serious and compelling family or other considerations which made their exclusion undesirable. The appellants appeared to be living relatively comfortably in Jamaica and were being educated. They had been in the care of their aunt since 2001. There was no suggestion that the aunt had abandoned the appellants or intended to do so. Although the Immigration Judge understood that the appellants missed their parents and siblings, the appellants were not, at the date of decision, young children.
The Immigration Judge then considered whether the respondent's decision was a violation of Article 8 of the ECHR. On behalf of the appellants, it was submitted that, in considering that question, the Immigration Judge should have regard to the judgment of Collins J in R v Immigration Appeal Tribunal ex parte Lekstaka [2005] EWHC 745 (Admin). The submission, as the Immigration Judge recorded at paragraph 65 of his determination, was that “truly exceptional circumstances can be found on the basis that the appellants' case complies with the spirit of the Immigration Rules, albeit not the letter.” The Immigration Judge accepted that, had the appellants' mother been settled, as well as the sponsor, the appellants would not have had to satisfy the requirements of paragraph 297(i)(f), that there be serious and compelling family or other considerations making exclusion undesirable, and could instead have relied upon paragraph 297(i)(a). Nevertheless, the Immigration Judge considered that the case of Lekstaka could be distinguished because there:
“The appellant and the sponsor found themselves in a situation which was not in any way of their making. The appellant in that case had been effectively orphaned by the conflict in Kosovo. He was prevented from seeking leave to remain in the United Kingdom as a dependant by virtue of being a nephew rather than a son, despite the fact that his uncle had treated him as a son of the family” (paragraph 66).
By contrast, the parents of the appellants in the present case “did make a free choice to split up the family, albeit one that they made on behalf of the appellant” (paragraph 67). At paragraph 68, the Immigration Judge noted that the sponsor had not visited the appellants during the eight years in which he had been in the United Kingdom and that the mother had only visited them once in five years. Although the mother had had a good reason to go to Jamaica to be with the second appellant, following the allegation of sexual assault upon the second appellant, she had chosen not to do so. The sponsor claimed that the Home Office had his passport, thereby preventing him from visiting Jamaica, but the Immigration...
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