Asylum and Immigration Tribunal

SA (ambit of s.85(5) of 2002 Act) Pakistan [2006] UKAIT 00018

THE IMMIGRATION ACTS

Heard at Field House	Determination Promulgated	
On 21 December 2005	On 25 January 2006	

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 Officer was disproportionate. 

16.	The date of decision in this case as we have noted above was 21 January 2004.   The appellant's son was born on 15 January 2005.   It is therefore the case that the child was not conceived let alone born at the date of decision in this case.   It is clear from sub-section 4 of section 85 that for most appeals under section 82(1) such a matter could properly be considered by an Adjudicator or Immigration Judge despite it being a matter arising after the date of decision.    This is however an appeal under section 82(1) of the 2002 Act against a refusal of entry clearance, in relation to which it is clear that sub-section 4 does not apply and the Adjudicator may consider only the circumstances appertaining at the time of the decision to refuse.   There is nothing in DR (Morocco) Starred [2005] UKIAT 00038 to indicate that a situation such as that which had occurred in this case would permit the Immigration Judge to imagine what the situation would be if a child were born.   The fact is clearly one that did not exist at the date of decision and could not be said to be a circumstance appertaining at the time of the decision to refuse.   The other matters concerning the length of time spent by the sponsor in the United Kingdom and his commitment to the United Kingdom are of course circumstances appertaining at the date of decision together with the circumstances which, on the application by the Immigration Judge of what was said by the Tribunal in Fouzia Noreen, would involve perhaps a rather lengthier delay in awaiting the outcome of an entry clearance application than would normally be the case, since the sponsor would first have to obtain in the United Kingdom a divorce from his first wife.  

17.	The question before us is whether section 85(5) properly interpreted applies only to an appeal such as in DR (Morocco) which only concerned entry clearance issues, considered more recently in LS (Gambia) [2005] UKAIT 00085, or whether the nature of the human rights appeal is such as to take it outside the limitation set out in section 85(5) and bring it within section 85(4).   If it is the latter then there would be no error of law by the Adjudicator in having taken account of the birth of the child as she did. 

18.	As Mr Deller reminded us, section 86 of the 2002 Act among other things requires an adjudicator to allow an appeal if he or she thinks that the decision is one which was not in accordance with the law, and that would include human rights matters.   There is, as Mr Deller pointed out, no freestanding human rights appeal. Section 82 sets out the types of immigration decision in relation to which an appeal can be made and that includes in section 82(2)(b) a refusal of entry clearance.   Section 84 sets out the various grounds on which an appeal under section 82(1) against an immigration decision as defined in section 82(2) can be brought including, at section 84(1)(c), the ground that the decision is unlawful under section 6 of the Human Rights Act.    Therefore the decision against which the appeal was brought in this case was the refusal of entry clearance and the ground with which we are particularly concerned is the contention that the decision is unlawful under section 6 of the Human Rights Act.   

19.	We have concluded that Mr Deller's argument is the correct one and thus that there is an error of law in the Immigration Judge's determination.    This is because it is clear that the context of section 85(5) is an appeal under section 82(1) against a refusal of entry clearance (and also a refusal of a certificate of entitlement with which we are not concerned in this case), and there is no suggestion in section 85(5) that any of the grounds that may be raised in relation to such an appeal is not to be considered in the context of the clear limitations set out in section 85(5).   We read section 85(5) as applying to each and every ground of appeal that may be brought under section 84 in relation to the particular immigration decision with which we are concerned, that being a refusal of entry clearance.   

20.	We go on to consider the situation in the alternative if we are wrong in our findings, that there was an error of law by the Immigration Judge in taking account of the existence of the appellant's son as a factor in assessing the Article 8 issue.    

21.	Her analysis in legal terms of the Article 8 issue is relatively terse and is to be found at paragraph 15 of her determination.   She identified the proper test as being that there must be shown to be truly exceptional circumstances within the meaning of Huang and, as we have noted above, set out her reasons for this.   It is important however not to forget the structured approach set out in Mahmood concerning the proper analysis of Article 8 claims.   That has in no sense been overtaken by what was said in Huang, but Huang is rather concerned with the appropriate test in assessing proportionality.   In particular we consider that the matter raised at ground two concerning the failure to consider whether there were insurmountable obstacles for the sponsor to return to Pakistan is a matter of some force.   We bear in mind Miss Sher's point that there is an apparent inconsistency between the Immigration Judge's finding that the sponsor has acquired a domicile of choice in the United Kingdom and yet requiring him to go to Pakistan either for the short or long term in order either to live with the appellant until such time an entry clearance application had been made, or indeed in the alternative remain there permanently.  It is however the case that the appellant is in effect being asked to give up her domicile of origin to come and live in the United Kingdom, and the point is properly made at paragraph 2 of the grounds that the United Kingdom does not have any obligation to respect the choice of residence of a couple, although clearly that must be seen within the international obligations of this country.    We do not consider that the Immigration Judge was entitled to find that it would be wholly unreasonable to expect the sponsor to relocate permanently to Pakistan in order to maintain family life.   Quite apart from the fact that it need not be a permanent relocation if she were to be successful in an entry clearance application, nothing has been shown that can be properly be said to be an insurmountable obstacle to him living in Pakistan.  He has lived in the United Kingdom for some 14 years, having come to the United Kingdom when he was aged approximately 37, and we do not consider, bearing in mind the amount of time he has spent in Pakistan as compared to that spent in the United Kingdom, that the life he has lived here can properly be said to mean that there is any insurmountable obstacle to him returning to Pakistan.    

22.	As regards the issue of truly exceptional circumstances, we consider that the Immigration Judge's decision in this regard is not one to which a reasonable Immigration Judge could properly have come.   The circumstances amount to no more than the fact that the appellant would be expected to continue, as she has been doing already for some time, to live in Pakistan without her husband, and it is unclear what support she has from the sponsor in this regard, and that this would be for a longer period than might normally be expected to be the case since the sponsor would first have to obtain a divorce in the United Kingdom from his first wife, whom it seems he divorced in 1992.    As Mr Deller pointed out, it is hardly an unusual situation for a young woman with a child to have spent an amount of time apart from her husband.   We do not consider that it can properly be characterised as being truly exceptional.   Accordingly, therefore even if the Immigration Judge had been right to include the existence of the child as a factor properly to be considered in her assessment of proportionality, we do not consider as a matter of law that she was entitled to conclude that the circumstances as a consequence and as set out by her at paragraph 15 of her determination showed a truly exceptional case.    This is not a matter of simple disagreement with the Immigration Judge.  We have concluded that there is an error of law in her determination in that her decision is not one to which a reasonable Immigration Judge could come to on the facts.    On this alternative basis also we therefore substitute for her decision a decision dismissing the appeal.

Signed								Date

D K Allen
Senior Immigration Judge