MN (Entry clearance facilities – Availability) Iraq  UKIAT 00316
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 7 September 2004
Date Determination notified: 18 November 2004
Mr J G Macdonald
|Secretary of State for the Home Department||RESPONDENT|
DETERMINATION AND REASONS
"45. The fact is that both parties knew that the Appellant had no status in this country when they became involved in a relationship. When they got engaged in January this year, they knew this appeal was pending.
46. I accept that they live together. I accept that they have a family life together. I accept that there would be an interference with this family life if the Appellant had to return alone to Iraq.
47. In considering whether there are insurmountable obstacles to the Appellant's fiancée travelling with him to Iraq, I find that the fact that she had a 5 year old child who lives with her own father every weekend does constitute an insurmountable obstacle. There is a court order granting contact. I do accept that this could be varied but I see no reason why it should be. The child would suffer if she did not have regular contact with her father. I therefore think that this is an insurmountable obstacle.
48. I turn now to the question of whether the interference with the family life of the couple which would result from him having to return to Iraq to seek entry clearance as a fiancé would be disproportionate to the need for effective immigration control. I understand that the British Embassy in Jordan is dealing with applications from Iraqi citizens who want entry clearance to come to the United Kingdom. The system appears to be working. Ms Taylor [who represented the Appellant before the Adjudicator] suggested that the ECO dealing with the Appellant's application might be biased. I cannot assume this. I do not think I can take this into account. The ECO is charged with the task of establishing whether or not an applicant complies with the Immigration Rules, and given the support of the Appellant's fiancée and her family and the fact that they have been together for eleven months, I must take the view that any application made by the Appellant would be dealt with fairly, and in accordance with the Immigration Rules. There would also of course be a right of appeal if the application were refused.
49. In finding that it would not be disproportionate for the Appellant to have to apply for entry clearance, I take account of the fact that his girlfriend does have family here. The couple are not married. She has her daughter here. She and her family would be able to provide documentary evidence of the strength of their relationship. I take account of the fact that they both knew that he had no status when they became engaged, and that there was a possibility that he might have to return to Iraq."
"1. The Appellant does not have any kind of passport or Interim Travel Document (ITD). The British Embassy in Amman makes clear in its procedures for Iraqi nationals that 'Interim Travel Documents are acceptable for travel to the UK'. The Appellant would be in difficulties obtaining an ITD as there is currently no Iraqi consular presence in the UK to issue such a document. Moreover, there is some suggestion that the ITD's have been restricted to 'senior officials, businessmen and journalists', according to Tareek al-Shaab, a publication issued by the Iraqi Communist party.
Therefore the Appellant would not be able to travel to Jordan to make the relevant applications.
2. The IAS Counsellor who had conduct of this matter before the IAA made submissions to the Adjudicator on this very point. The Adjudicator appears not to have considered or alluded to these submissions.
3. The Adjudicator states the system 'appears to be working'. However she does not state where this information emanates from."
"...must be made to the post in the country or territory where the applicant is living which has been designated by the Secretary of State to accept applications for entry clearance for that purpose and from that category of applicants. Where there is no such post the applicant must apply to the appropriate designated post outside the country or territory where he is living."
"The Tribunal is able to deduce the following from this material:
a. Iraqi citizens are able to travel to Jordan either using a passport issued under the regime of Sadaam Hussein or an Interim Travel Document issued by the Coalition Provisional Authority or the present Iraqi Ministry of Interior Office.
b. There is no suggestion that the Jordanian government itself requires a visa for entry.
c. Were the Jordanian government preventing Iraqi nationals entering the country, we would expect this to have been mentioned.
d. There is no suggestion that any distinction can be drawn between an Iraqi passport holder and an Iraqi national holding an ITD. There would be very little point in the present Iraqi authorities issuing ITDs if they were unable to perform the task for which they were issued, namely, the facilitation of international travel.
e. From time to time, the border between Jordan and Iraq may be closed for security reasons but this does not prevent travel to Jordan and but [sic] may delay it.
f. The fact that 15 percent of the workload of the British Embassy in Amman is concerned with Iraqi applications indicates that there is a substantial traffic of Iraqi nationals into Jordan for the purpose, at least in part, of applying for entry clearance. "