Upper Tribunal (Immigration and asylum chamber), 2010-10-12, [2010] UKUT 377 (IAC) (MS (Para 277 age restriction knowledge))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Cranston, Senior Immigration Judge Gill |
| Status | Reported |
| Date | 12 October 2010 |
| Published date | 22 October 2010 |
| Subject Matter | Para 277 age restriction knowledge |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 04 October 2010 |
| Appeal Number | [2010] UKUT 377 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
MS (Para 277 – age restriction – knowledge) Somalia [2010] UKUT 377 (IAC)
THE IMMIGRATION ACTS
Heard at: Field House
On: 4 October 2010
Before
The Hon. Mr Justice Cranston
Senior Immigration Judge Gill
Between
MS
Appellant
and
ENTRY CLEARANCE OFFICER, ADDIS ABABA
Respondent
Representation:
For the Appellant: Ms N Brissett, of Counsel, instructed by Aden & Co. Solicitors.
For the Respondent: Ms J Isherwood, Home Office Presenting Officer.
1. Requiring a person with limited leave to remain to travel to a third country to spend time with his wife who is under 21 is a sufficiently serious interference with the right to respect for family life to require justification.
2. The interference is in accordance with the law as it complies with Immigration Rules that were publicly available at the material time even if the appellant did not know of them.
3. The decision was for a legitimate purpose and proportionate in the light of the fact that the sponsor had been able to visit his spouse in the third country and there were no obstacles to his continuing to do so until she was 21.
1. The Appellant is a national of Somalia, born on 1 February 1990. By an application dated 18 June 2009, she applied for entry clearance in order to join her husband, Mr. Hassan Saeed Abdallah (the sponsor), in the United Kingdom. The sponsor is also a Somali national, born on 1 January 1989. Her application was refused by the Respondent on 30 June 2009 on the ground that she was under 21 years of age and therefore too young to meet the age requirement in paragraph 277 of the Statement of Changes in the Immigration Rules HC 395 (as amended) (‘the Immigration Rules’). In addition, the Respondent refused her application under Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
2. The Appellant's appeal was heard on 3 March 2010 before Immigration Judge Blake, who dismissed the appeal under the Immigration Rules and on human rights grounds. His decision under the Immigration Rules was not challenged. On 5 May 2010, the First-tier Tribunal granted permission to appeal to the Upper Tribunal, limited to Article 8. It was considered arguable that the Immigration Judge failed to make proper findings or give legally adequate reasons for concluding that the Appellant’s exclusion did not contravene her rights under Article 8.
3. On 10 August 2010, Senior Immigration Judge Perkins issued directions which (to the extent relevant) state:
“1) Having regard to all the circumstances, including the failure of the respondent to serve within the permitted time a response which adequately explains why the decision of the First-tier Tribunal does not contain an error of law and should not be set aside, or any response, the Upper Tribunal, pursuant to rule 34, has decided without a hearing that the decision of the First-tier Tribunal does contain an error of law, as identified in the grant of permission, read with the grounds of application, and should be set aside and re-made by the Upper Tribunal.
2) The appeal will accordingly proceed to a hearing for the purpose of considering evidence relevant to the re-making of the decision and the following directions are hereby given.
3) The parties shall prepare for the hearing on the basis that none of the findings of fact of the First-tier Tribunal shall stand.
4) [not relevant]
5) Notwithstanding point 3 above, at the hearing of the appeal the parties will be invited to agree core facts. It seems that they are not in issue.”
4. The sponsor arrived in the United Kingdom on 22 February 2006. He was recognised as a refugee by the Secretary of State who, on 25 June 2007, granted him limited leave to remain until 21 June 2012. The sponsor first met the Appellant on 2 February 2005, whilst they were both still living in Somalia. They lost contact with each other after the sponsor fled to the United Kingdom. However, they regained contact in 2007 after the Appellant fled to Ethiopia. They formed a relationship by telephone and continued it by e-mail. In June 2009, the sponsor travelled to Addis Ababa. He married the Appellant on 15 June 2009 in Addis Ababa. They lived together as husband and wife until 1 October 2009, when the sponsor returned to the United Kingdom. The sponsor said that he was not aware of the age limit.
5. In his written statement, the sponsor said that he has been employed since November 2007 full time by Asda superstore as a warehouse operator, earning approximately £12,650.00 per annum without overtime.
6. The sponsor gave oral evidence before us through an interpreter, interpreting in the Somali language. His wife does not have any legal status in Ethiopia. His mother, his brother and two cousins are in the United Kingdom. His mother is 71 or 72 years old. His brother is twenty years old. The sponsor does his mother's shopping for her and takes her to the doctor whenever necessary. He helps her as and when necessary. His brother has two children; the older is 6 years old and the younger a few months old.
7. Under cross-examination, the sponsor said that he has been to Ethiopia twice. The first occasion was from February or March 2005, when he fled the war in Somalia. He stayed in Ethiopia until June or July 2005, when he returned to Somalia. Asked whether facilities were made available to him in Ethiopia, the sponsor said that he had nothing in Ethiopia.
8. In 2006, he left Somalia again to travel to the United Kingdom. On 11 June 2009, he travelled to Ethiopia from the United Kingdom. He stayed there for six months, until 1 October 2009. He stayed in the market where Somalis live in Ethiopia and where his wife currently lives. They rented a room in a hotel belonging to Somalis. His wife survives on what he sends her. Asked whether facilities were made available to him in Ethiopia during this visit, the sponsor said that he had what he took with him from the United Kingdom.
9. The sponsor wants to be reunited with his wife. He is unable to live alone without a woman. He could not live in Ethiopia. He does not have any legal status in Ethiopia. He has a job and a life in the United Kingdom. He has family in the United Kingdom.
10. We asked the sponsor whether he would be able to visit the Appellant in the period before she reached her 21st birthday, when she would be able to lodge another application for entry clearance as spouse. He said that it is good for a couple to live together in the same place. He is worried that everything he has built up might break up in the next few months. Asked to explain this, he said that he was afraid that “something dark” might come into their relationship and that the Appellant might think that he has not been trying hard enough for her to join him. He worries about the Appellant constantly. He feels bad whenever he sees other people together. He has had a holiday since his last holiday in Ethiopia but he chose not to visit the Appellant. This was because she feels heartbroken when he leaves her.
11. Ms. Isherwood relied upon the Refusal Notice dated 14 December 2009. She submitted that the sponsor was capable of going to Ethiopia to live with the Appellant or to visit her. It would not be disproportionate to expect the sponsor to do so in the period before her 21st birthday.
12. Ms. Brissett submitted that it would not be proportionate to refuse the Appellant entry to the United Kingdom. It was not reasonable to expect the sponsor to live in Ethiopia with the Appellant because the sponsor and the Appellant do not have any legal status in Ethiopia. The sponsor has a job and accommodation in the United Kingdom. He is involved in caring for his mother. His departure would impact upon members of his family in the United Kingdom. At the date of the decision, the Appellant was 19 and a half years old. Accordingly, as at the date of the decision, she and the sponsor would have had to wait one and a half years before the Appellant was eligible for entry as spouse under the Immigration Rules.
13. We reserved our decision.
Assessment
14. By virtue of section 85(5) of the Nationality, Immigration and Asylum Act 2002, we must determine this appeal by considering the circumstances appertaining as at the date of the decision. We reminded ourselves that we must decide whether there were substantial grounds for believing that the Respondent's decision to refuse the Appellant’s application for entry clearance would be in breach of any protected rights under Article 8 of the ECHR. We followed the step-by step approach explained at paragraph 17 of the judgment of the House of Lords in R v SSHD ex parte Razgar [2004] UKHL 27. Pursuant to the guidance given in Beoku-Betts v SSHD [2008] UKHL 39, the human rights of each party affected by the decision and who enjoys any protected rights within Article 8 (1) must be...
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