Upper Tribunal (Immigration and asylum chamber), 2006-01-25, [2006] UKAIT 18 (SA (Ambit of s.85(5) of 2002 Act))
| Jurisdiction | UK Non-devolved |
| Judge | Mr D K Allen, Miss K Eshun, Ms P L Ravenscroft |
| Status | Reported |
| Date | 25 January 2006 |
| Published date | 04 April 2006 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 21 December 2005 |
| Subject Matter | Ambit of s.85(5) of 2002 Act |
| Appeal Number | [2006] UKAIT 18 |
Asylum and Immigration Tribunal
SA (ambit of s.85(5) of 2002 Act) Pakistan [2006] UKAIT 00018
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 21 December 2005 |
On 25 January 2006 |
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Before
Mr D K Allen (Senior Immigration Judge)
Miss K Eshun (Senior Immigration Judge)
Ms P L Ravenscroft
Between
Appellant
and
ENTRY CLEARANCE OFFICER - ISLAMABAD
Respondent
Representation:
For the Appellant: Miss S Sher, of Counsel, instructed by RFK, Solicitors
For the Respondent: Mr P Deller, Home Office Presenting Officer
Section 85(5) of the 2002 Act applies to human rights issues raised in an appeal against refusal to grant entry clearance.
DETERMINATION AND REASONS
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 in the United Kingdom. The couple married on 22 March 2003, and they have a son, on 15 January 2005. The sponsor married his first wife, FK, in Pakistan in October 1984. He claims to have divorced her in 1992.
2. The Immigration Judge, Ms S Henderson, dismissed the appeal under the Immigration Rules, concluding that the couple's marriage was void under the law of the United Kingdom. There has been no challenge to that finding.
3. The Immigration Judge went on to consider Article 8 of the Human Rights Convention and concluded that the decision of the Entry Clearance Officer was not proportionate and therefore allowed the appeal. The Secretary of State subsequently sought, and obtained an order for reconsideration of the decision.
4. In this regard it is relevant to note firstly that at paragraph 13 of her determination the Immigration Judge concluded that the sponsor had acquired a domicile of choice in the United Kingdom. He had come to the United Kingdom on 7 September 1991 as a visitor, later claimed asylum and appeared to have obtained indefinite leave to remain in around December 2002 on the basis of long residence in the United Kingdom. His first trip back to Pakistan was in February 2003 when he married the appellant on 22 March 2003, and the couple lived together for a month. He has subsequently twice visited the appellant and, as we have noted above, they have a son, born on 15 January 2005.
5. The Immigration Judge gave consideration to a determination of the Immigration Appeal Tribunal in Fouzia Noreen (01/TH/00104). In this case it was noted that in a similar situation as the one before the Immigration Judge where the sponsor's divorce and second marriage were both valid under Muslim law, and under Muslim law it was not possible for either the divorce or the second marriage to be gone through again, it was no longer possible for the sponsor to travel to Pakistan in order to institute a fresh talaq divorce from his first wife and remarry the appellant. In Fouzia Noreen the Tribunal suggested that the appropriate course would be for the sponsor to obtain a divorce in the United Kingdom from his first wife and for the appellant then to apply for entry clearance as a fiancée in order to undergo a civil marriage to the sponsor in the United Kingdom.
6. It seems to the Immigration Judge that this was an unduly difficult and probably lengthy process to expect the appellant to go through bearing in mind that she had a young child of 5 months for whom she was presently caring without help from the sponsor.
7. She went on to state at paragraph 15 that, given the length of time that the sponsor had lived in the United Kingdom and the degree of his commitment to the United Kingdom, it would be wholly unreasonable to expect him now to relocate permanently to Pakistan in order to maintain family life. She considered that the existence of the appellant's very young child meant that it was unreasonable to expect her to wait for the formalities of a UK divorce and a further entry clearance application to be gone through in order for her to be able to join her husband. She stated that she very much doubted that the appellant would have been at all aware of the technical obstacles in the way of her entry clearance application and concluded that the decision of the Entry Clearance Officer was in all the circumstances not proportionate.
8. At the hearing before us on 21 December 2005 Miss S Sher for RFK, Solicitors appeared on behalf of the appellant, and Mr P Deller appeared on behalf of the Entry Clearance Officer.
9. Mr Deller adopted and expanded upon the points in the application for reconsideration. He attached particular weight to ground 3. The specific challenge set out there is that the Immigration Judge erred in law by taking into consideration circumstances at the date of the hearing rather than assessing the circumstances appertaining at the time of the decision to refuse, as it was contended she was required to do by section 85(5) of the Nationality, Immigration and Asylum Act 2002. The situation was to be contrasted with that under the 1999 Act. In contrast to a case involving expulsion which could be seen as a continuing decision, where there was a refusal of entry clearance it was a one-off issue and not a continuing exclusion and only the circumstances envisaged by section 85(5) were in play and these were to be contrasted with the circumstances which can be considered under section 85(4). It is an appeal brought under section 82(1) in relation to which one ground was human rights. Section 86 provided that the appeal could be allowed if the decision is not in accordance with the law, and the relevant law in this case was the Human Rights Act. There was no freestanding human rights appeal and it was part of the same appellate framework.
10. As regards the other grounds, he argued that there was a contrast between the concept of an insurmountable obstacle as referred to by the Court of Appeal in Mahmood and the wording employed by the Immigration Judge at paragraph 15 of her determination that it would be wholly unreasonable to expect the appellant to relocate permanently to Pakistan in order to maintain family life. It was relevant however in this context to note her finding that he had acquired a domicile of choice in the United Kingdom. Mr Deller contended that this was a surprising finding and yet, he added it was a finding that had been made.
11. Otherwise it was clear that the case needed to be a very exceptional one where it fell outside the Immigration Rules, if Article 8 were to be engaged. This was a point, made at ground 4, which had been affirmed in Huang. As regards ground 5, if the child were a relevant factor, contrary to Mr Deller's earlier submission, then the case was nevertheless not truly exceptional. No further matters had been raised than the fact that the appellant was bringing up a child in Pakistan and it was unclear what support she had from the sponsor. It was not unusual for parents to be separated while awaiting entry clearance. On a proper application of Huang the test had not been met.
12. In her submissions Miss Sher contended that as the appeal had been allowed under Article 8, the Immigration Judge was entitled to take post-decision factors such as the existence of the child into account. The appeal had not been allowed under section 82(1) so she was permitted to do so.
13. Otherwise she contended that at paragraph 15 there were proper and sound reasons for allowing the appeal. The Huang test had been set out and the Immigration Judge had found that there were exceptional circumstances. There was the particular reason that the sponsor had lived in the United Kingdom for a lengthy period and had a degree of commitment to the United Kingdom and on the evidence she was entitled to find as she did. The finding about domicile was clearly relevant and it would be contradictory to that finding to require the appellant to return to Pakistan to maintain family life. The facts were wholly exceptional or could properly be found to be so and there was no error of law in the determination.
Conclusions
14. We consider first the point raised at ground 3 concerning the ambit of section 85(5) of the Nationality, Immigration and Asylum Act 2002. The relevant provisions of section 85 are as follows:
"(4) On an appeal under section 82(1) or 83(2) against a decision an adjudicator may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(5) But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10 –
(a) sub-section (4) shall not apply, and
(b) the adjudicator may consider only the circumstances appertaining at the time of the decision to refuse."
15. It is clear that in her assessment of Article 8 in this case the Immigration Judge attached weight to the existence of the appellant's very young child together with the length of time the sponsor had lived in the United Kingdom and the degree of his commitment to the United Kingdom, as she put it, in concluding that the refusal by the Entry Clearance...
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