APPEAL No. [2004] UKIAT 00034 A (Pakistan)

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 20 February 2004

Date Determination notified: 27 February 2004

Before

Mr G Warr (Chairman) 
Mrs E Hurst, JP
Mr A E Armitage

Between

Secretary of State for the Home Department	APPELLANT	
and	 	
A	RESPONDENT	

DETERMINATION AND REASONS

1.	The Secretary of State appeals against the determination of an Adjudicator (Miss S.K. Kayler) who allowed the appeal of a citizen of Pakistan (hereinafter to convenience referred to as the appellant) on Article 8 grounds only but dismissed his asylum appeal.
2.	Mr D.N. Saville appeared for the Secretary of State.  Mr R. Hussein, of counsel, instructed by Nasim & Co., solicitors, appeared for the  appellant.

3.	The case deals with the issues of (a) UK visa facilities in Pakistan and (b) reliance on unreported determinations.

4.	The appellant applied for asylum on  his arrival in this country on 16 January 2002.  He met his future wife at a party in February 2002 and married her on 31 May 2002.  It was the appellant's case that his wife knew nothing about his precarious immigration history prior to the marriage. His wife had two sons from a previous marriage who stayed at weekends and during holidays with whom the appellant had built up a close relationship. He asserted he had not married to extend his stay in the United Kingdom or to boost his asylum application.  His wife was expecting a child of the marriage on   7 November 2003 – that child was duly born after the Adjudicator hearing which had taken place on 19 June 2003.

4.	In paragraph 22 of the determination the Adjudicator stated as follows:

‘The actions of the appellant in marrying soon after he met his wife suggest the actions of a man desperate to stay in the UK. He says his wife knew nothing of his status, and she has confirmed this. I view this with some suspicion in view of the hasty marriage. I am of the view that the couple agreed to marry quickly, both being fully aware of the appellant's immigration status.  Having said that, I accept that this is a genuine marriage with the intention of the parties being to live together.  The wife is pregnant with the appellant's child, and I do not doubt that they intend to live together. ‘

5.	The Adjudicator was not satisfied that the appellant left Pakistan because of any persecution or intimidation nor that there were charges outstanding against him as he had claimed. Accordingly he dismissed the asylum appeal and there has been no appeal from that aspect of his determination.

6.	Turning to human rights matters, the Adjudicator was not satisfied that returning the appellant would breach his Article 3 rights – see paragraph 27 of the determination.  Dealing with Article 8, the Adjudicator concludes her determination  as follows:

’30.	The appellant has established family life in the UK with his wife. They expect their first child. The answer to the first question must be that the appellant has family life here.

31.	The interference with that family life is in accordance with the law and the  legitimate aim is to have a proper policy of immigration control. The only relevant question therefore is whether the interference with that right is legitimate.

32.	As I have already stated, I find that both parties were aware of the appellant's precarious status on entering the marriage. The respondent says they must face the consequences thereof, and Mrs A. has the option of accompanying her husband to Pakistan and enjoying family life there. I find that there are insurmountable objections to this since she has two other children (aged 8 and 14) from a previous marriage who have staying access with her on weekends and during holidays. She enjoys family life with her sons in the UK. It would be impossible to maintain that level of contact from Pakistan.  For this reason, I accept that it would be difficult for Mrs A. to enjoy family  life with her sons from abroad, and she cannot be expected to live there.   I do not find that the cultural and other differences would make it impossible for her to live in Pakistan.

33.	The second option is for Mr A. to make his application to join the appellant as a spouse from abroad. There is no reason why he should not do so, and join the queue with others who have to wait for their applications to be processed.  Would his right to apply from Pakistan be nullified in light of the position at the High Commissions, as expounded by the appellant  and Mr Ghaffar?  I have not been presented with any evidence to support this assertion and do not accept this to be the case.

34.	My conclusions are that there would not be insurmountable obstacles to Mr A. returning to Pakistan to make an application for entry clearance from there. Having considered Article 8, it is clear that there would be interference with the family rights of Mrs A. to enjoy family life with her two sons should she have to accompany her husband there. Thus there are insurmountable obstacles to family life being enjoyed in Pakistan, since clearly the boys cannot be expected to join their mother in Pakistan as they reside with their father. To return Mr A. to Pakistan to make an application there would appear to be a futile exercise since, in view of my findings and conclusions, family life cannot be carried out in Pakistan. The decision under Article 8 is therefore not proportionate.’

7.	In the grounds of appeal reference is made to Mahmood [2001] ImmAR 229.  The point is made that the Adjudicator had concluded that there would be no insurmountable obstacle to the appellant returning to Pakistan to make an application for entry clearance but that this would be a futile exercise. Reference was made to the case of Singh [2002] UKIAT 00660.  There were no exceptional circumstances preventing return and the requirement to make the application overseas was necessary to maintain fair and effective immigration control.

8.	In submissions Mr Saville relied on the case of Mahmood and he submitted that the Adjudicator's determination flew in the face of it.  He referred to a document in the appellant's bundle concerning the visa service provided by the British High Commission in Islamabad.  That made it clear that settlement applications could be received.  In any event the Adjudicator had made a clear finding that there would be no obstacles preventing the appellant making his application from Pakistan. There had been no respondent’s notice in respect of that aspect of the Adjudicator's decision.  In the bundle there were two authorities which were not reported and objection was taken to their being paraded before the Tribunal, contrary to the Practice Direction of 16 May 2003 (Practice Direction No. 10).

9.	Mr Hussein submitted that the findings of the Adjudicator were properly open to him in the light of the unreported authorities.  It was acknowledged that there had been no respondent’s notice. The appellant would face problems as those with complex immigration histories would need an interview and there would be a delay in processing his application. 

10.	In reply, Mr Saville reiterated his objection to the citation of unreported decisions. There had been no attempt to argue that the last paragraph of the Adjudicator's determination had been correctly analysed. It was not clear why a claimant who had arrived on a false passport and had used documentary deception should be in a better position than someone who had applied in the proper manner for an entry clearance. The British High Commission document indicated on its face that there were facilities for interviews. 

11.	At the conclusion of the submissions we reserved our determination.  We have carefully considered all the material before us.  The Adjudicator carefully considered the position of the appellant making an application from Pakistan and made a clear finding that there were no obstacles to his making such an application. The point was not challenged by the appellant and we see no good reason to disturb the finding made by the Adjudicator on this issue. 

12.	We have, however, looked at the document setting out the facilities available in Pakistan for the processing of visas.  The visa section Islamabad is not able to accept visa applications direct from customers but offers a limited service and a dedicated UK visa telephone enquiry call centre operates from Karachi. A visa service is provided through Gerry’s/FedEx offices. Among those who are able to avail themselves of the service are those who are making settlement applications providing, in the case of spouses, that the spouse in the United Kingdom is settled and aged eighteen and over.  There is a proviso to which Mr Hussein referred.  If the applicant has been refused a visa for the UK or for any other country, or been refused entry to the UK or any other country or failed to comply with conditions of entry to the UK or sought an extension of stay in the UK ‘then we may not be able to resolve your application and it may be returned to you’.   It is suggested that in complex cases an interview may be necessary and that will cause the appellant difficulties. The British High Commission document appears to suggest that facilities are available for interview – see page 5 ‘If an interview is necessary, you will be contacted and given details.’  There is a further reference later on in the document about an aim to make a decision without calling applicants for interview whenever possible. Processing times for settlement applications is given as three months. 

13.	As we pointed out to counsel in argument, there is nothing particularly complex about this case. Indeed, the appellant has certain advantages over other applicants in the queue in that he has a determination in his favour on the merits of his case.   He will be equipped with all the necessary documentation evidencing the genuine nature of his marriage, including a birth certificate in respect of the child of the marriage. We were not told of any reason why the application would not succeed under the Immigration Rules.

14.	We find firstly that there is a nothing unfair about requiring this appellant to make his application from overseas like everyone else.  Even if he is able to demonstrate quite clearly that he complies with the rules – see paragraph 26 of Mahmood in the judgment of Laws LJ ‘It is simply unfair that he should not have to wait in the queue like everyone else. At least it is unfair unless he can demonstrate some exceptional circumstance which reasonably justifies his jumping the queue.’

15.	In paragraph 65 of the judgment of the Master of the Rolls reference is made to potential difficulties with an application.  The Master of the Rolls did not consider that the possibility that the application may not succeed ‘is any reason for excusing him from the requirement to make an application from outside the country if he wishes permission to settle here with his wife and family.’  Although there may be a lengthy separation, the court did not consider ‘that the Secretary of State's insistence that the appellant should comply with the same formal requirements as all other applicants seeking an entry visa to join spouses in this country is in conflict with Article 8.’

16.	In relation to the unreported decisions, no permission was applied for or granted to cite them and objection was taken to their being referred to us. There are clear reasons for complying with the formalities when putting forward unreported decisions.  Furthermore, it is not clear what documents were available to the Tribunal in those decisions. The material before us does not indicate that the appellant will not have his application processed. As we have observed, the appellant is in certain ways in a favourable position since he has all the material he needs together with a favourable Adjudicator determination.  As the Court of Appeal made clear in Mahmood, the fact that an application may not succeed is no excuse for failing to make an applicant go through the normal procedures.  The time for processing a settlement application is indicated as three months.  In the appellant's case it may be shorter because he has all the material necessary or it may be longer because of other factors.  It is to be observed that the Adjudicator rejected the claim of the appellant and his wife that his wife did not know of his precarious immigration status when she married him. They married both being fully aware of the circumstances.  In such circumstances it does appear, to use the words of Laws LJ ‘simply unfair that he should not have to wait in the queue like everyone else.’

17.	The Adjudicator’s approach as indicated in paragraph 34 of the determination is plainly wrong on the authority of Mahmood.  The Secretary of State is entitled to insist that the appellant's application is made from overseas and we see no exceptional circumstances that would indicate that he should not join the queue like everyone else. Permission was not granted to challenge the Adjudicator's findings that the appellant could make his application from Pakistan and we would not, had it been necessary to do so, have concluded from the material available to us that the Adjudicator’s decision was not properly open to him.  The British High Commission document does not state that the application will be refused or rejected out of hand.  It makes it clear that it may not be able to be resolved. It does not indicate that interview procedures are not available. In any event, the fact that the application may encounter difficulties along the way is not, on the authority of Mahmood, a reason to absolve am applicant from the usual requirements. 

18.	The Adjudicator was wrong to allow this appeal on the basis that to require the appellant to make his application from overseas was ‘a futile exercise’. There are no exceptional circumstances in this case.  for the reasons we have given, the Adjudicator's determination of the Article 8 issue is reversed and the appeal of the Secretary of State is allowed.

19.	Appeal allowed.

G. WARR
VICE PRESIDENT