Entry Clearance Officer, Dhaka v SB  UKIAT 02212
Date of hearing: 18/06/2002
Date Determination notified: 27 June 2002
|Entry Clearance Officer, Dhaka
The adjudicator's human rights jurisdiction in the context of a decision by an Entry Clearance Officer
"(1). A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom racially discriminated against him or acted in breach of his human rights may appeal to an adjudicator against that decision...
(b) an authority acts in breach of a person`s human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.
(3) Subsection (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant's entitlement to enter or remain in the United Kingdom, racially discriminated against the appellant or acted in breach of the appellant's human rights".
(4). The adjudicator, or the Tribunal, has jurisdiction to consider the question.
(5) If the adjudicator or the Tribunal decides that the authority concerned:
(a) racially discriminated against the appellant; or
(b) acted in breach of the appellant's human rights, the appeal may be allowed on the ground in question".
(a) the Secretary of State;
(b) an immigration officer;
(c) a person responsible for the grant or refusal of entry clearance."
The Article 8 issue
The adjudicator's approach
"In immigration appeals, the burden of proof is on the appellant and the standard of proof required is the balance of probabilities. I can only take into account facts in existence at the date of the respondent` decision, or which were then in reasonable contemplation. In human rights appeal, it is for the appellant to show that there has been interference with his or her human rights. If that is established, and the relevant Article permits, it is then for the respondent to establish that the interference was justified. The appropriate standard of proof is whether there are "substantial grounds for believing the evidence". By virtue of Section 77(4) of the....1999 Act, I am constrained from taking into account facts arising after the respondent`s decision. This constraint applies to all human rights issues, except for those under Article 3. on the specific facts of this appeal any difference between the burdens and standards of proof have not resulted in any material differences in my findings of fact.
9. The point in time in which I have to consider the relevant facts, for both immigration and human rights issues, is the date of the decision as stated in paragraph 2 above. The requirements of the Rules which are relevant to this appeal are set out under Section 2(1) of the Immigration Act 1971."
"Under this Article I have to discern the following separate questions:
(1) Is there an interference with the right to respect for private life (which includes the right of physical and moral integrity) and family life?
(2) Is that interference in accordance with the law?
(3) Does that interference have legitimate aims?
(4) Is the interference proportionate in a democratic society for the legitimate aim to be achieved?"
"In my view the interference with the siblings` right to family life with each other maintain that level of contact would be disproportionate in a democratic society for the legitimate aim to be achieved in maintaining immigration control. I find therefore that the refusal of entry clearance in respect of Shamim Box could cause the United Kingdom to be in breach of the law or its obligations under the 1950 Convention.
Errors in the adjudicator`s approach
The appropriate standard of proof in entry cases
Not a negative obligation (interference) case but a positive obligation (failure to act/lack of respect) case
"The present case hinges on the question whether the Netherlands Government was under a duty to allow Souffiane to reside with his father in the Netherlands, thus enabling the applicant to maintain and develop family life in its territory. For this reason the Court will view the case as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation."
"The court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in effective "respect" for family life. However, the boundaries between the State`s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole; and in both contexts the State enjoys a certain margin of appreciation".
"an authority acts in breach of a person`s human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998 (emphasis added).
"It therefore appears that [the father] is not prevented from maintaining the degree of family life which he himself had opted for when moving to the Netherlands in the first place, nor is there any obstacle to his returning to Morocco..."
"All the circumstances must be considered when paragraph 317(i)(f) is applied. It may be relevant, as in Abdulaziz v UK (1985)) 7 EHRR 471 and...ex parte Arman Ali  INLR 89, that the family have the opportunity to live together in another country. There may be cases where the conduct of other members of the family is relevant to an application under paragraph 317(f). Those considerations cannot in my judgment reasonably be crucial or overwhelming in the circumstances of this case. The father has been in the UK for many years, albeit most of them unlawfully. His wife and three of his five children are now here, having been granted entry clearance. It is in that context that the position of the appellant must be considered. She should not, in effect, be punished for being the only member of the immediate family left in Bangladesh. The fact that the other members of her immediate family choose to live in the UK rather than Bangladesh cannot of itself determine her application against her. The family has chosen to settle in the UK. That decision should not in itself prejudice her position to settle in the UK. That decision should not in itself prejudice her position as the only other member of the family. Nor, with respect, should emotive comments about the family abandoning its vulnerable members. These should not be determinative in the present circumstances".
Application of the relevant law to the facts in this case.
"Both parties, including counsel for the Secretary of State, agree, as I understand it, that the Tribunal should properly take account, at least in the present case, of what the situation will be if the son does decide to enter this country, as he is entitled to do. I therefore would deplore the narrow point which appears to have been taken in para 15 as to the requirement that para 317(i)(f) should be satisfied strictly in the present tense".
Summary of conclusions
1. Even though neither the Entry Clearance Officer nor the claimant in his appeal to an adjudicator raised Article 8, once the Article 8 question was raised at the hearing the adjudicator was correct to assume jurisdiction to decide the question: see s. 65(3) of the 1999 Act.
2. A decision by an Entry Clearance Officer refusing to grant a certificate of entitlement falls within the meaning of the (s. 65) phrase "relating to that person's entitlement to enter or remain in the United Kingdom". Accordingly the claimant had a section 65(3) appeal.
3. In entry cases the appropriate standard of proof for deciding human rights questions is not "substantial grounds for believing". It is the normal civil standard of the balance of probabilities.
4. In saying, "I am constrained from taking account of facts arising after the respondent's decision", the adjudicator overlooked the provisions of s. 77(4)(b) of the 1999 Act which permits adjudicators to take limited account of post-decision evidence.
5. In entry cases adjudicators should not treat the Article 8 question as one of whether there has been an unjustified interference with the right to respect for private and family life. They should treat it as one of whether there has been an unjustified lack of respect for private and family life. The focus should be on whether, in the light of the positive obligation on UK to facilitate family reunion, there has been a failure to act in the particular circumstances of the case.
6. Nonetheless in interference and lack of respect cases similar principles apply. In conducting the necessary balancing exercise, it remains relevant that a state does not have a general obligation to respect immigrants` choice of the country of their residence. It also remains relevant to consider whether there are insurmountable obstacles to the family enjoying family life elsewhere. However, as clarified by the Court of Appeal in Husna Begum, the extent to which the test of insurmountable obstacles is relevant will vary from case to case.
7. As also clarified by Husna Begum, the need to consider whether Article 8 was breached at the date of decision does not entail that one should consider the present state of affairs only. It was necessary in this type of case to take account of the reasonably foreseeable fact that the claimant's half-siblings, being in possession of certificates of entitlement or entry clearance, would be leaving in order to travel to the UK.
8. In conducting the balancing exercise in this case the adjudicator wrongly overlooked the significance that the claimant and all of his half-siblings were no longer minor children. He also wrongly overlooked the fact that the claimant would remain living in Bangladesh with his mother together with certain other extended family members. Given that the claimant was a 23 years old with no specific health or physical or mental difficulties who would continue to have some family relationships in Bangladesh, the adjudicator's conclusion that refusal of entry was disproportionate was not sustainable.
DR H H STOREY (VICE-PRESIDENT)