Asylum and Immigration
Tribunal
SL & HA (Ethiopia – work permits –
restrictions) Ethiopia 
CG [2009] UKAIT 00052
THE IMMIGRATION ACTS
Heard at: Heard at Birmingham
Date of Hearing: On 19 February 2009 and 4 August 2009
Date Promulgated: 16 December 2009
Before
SENIOR IMMIGRATION JUDGE ALLEN
Between
SL
ha
Appellants
and
ENTRY CLEARANCE OFFICER – ADDIS ABABA
Respondent
Representation:
For the Appellant: Mr
B Bedford instructed by Sultan Lloyd Solicitors
For the Respondent: Mr L
Petryszyn, Home Office Presenting Officer (on 19 February)
Mr
J Singh, Home Office Presenting Officer (on 4 August)
DETERMINATION AND REASONS
A
foreigner who wishes to be employed in Ethiopia will only be able to do so if
there is no qualified Ethiopian for the activity in question. A UK-based
non-Ethiopian without particular skills is therefore very unlikely to obtain a
work permit in Ethiopia, though a short-term visit is unlikely to be
problematic.
1. The first appellant is a
citizen of Somalia and the second appellant is her younger sister, dependent on
her. The first appellant (hereinafter referred to as the appellant) appealed
to an Immigration Judge against the Entry Clearance Officer’s decision of 15
December 2008 refusing to grant her and her sister leave to enter the United
Kingdom as respectively the spouse and dependent relative of the sponsor Isa
Fos Sharif, a person present and settled in the United Kingdom. It seems that
the appellants have lived together since 2005 when they lost their parents.
2. The Immigration Judge accepted
that the appellant and the sponsor were in a subsisting relationship. She found,
however, that the appellant could not satisfy the requirements of the
Immigration Rules in respect of maintenance. As regards Article 8, she found
that there was family life between the appellant and the sponsor and allowed
the appeal under Article 8.
3. The Secretary of State sought
reconsideration of this decision, and reconsideration was ordered by a Senior
Immigration Judge. On 8 December 2008 it was concluded by a Senior Immigration
Judge that there was required to be a reconsideration of the Article 8 issue. The
findings on the Immigration Rules were to stand. The decision of the Senior
Immigration Judge is attached to this determination.
“1. This is a
reconsideration of the decision of Immigration Judge O’Garro who on 9 July 2008 allowed the appellants’ appeals under Article 8 of the ECHR but dismissed
their appeals under the Immigration Rules, in respect of the first named
appellant paragraph 281 of HC 395.
2. The
Immigration Judge concluded on all of the evidence before her that the marriage
was genuine and subsisting between the appellant and the sponsor in the United
Kingdom, which had been an issue taken by the ECO. No challenge is made to
that finding in her determination. However she also concluded on the evidence
that the appellant could not meet the requirement to show that she and her
spouse (the sponsor) would be able to maintain themselves and any dependants
adequately without recourse to public funds. The Immigration Judge carefully
considered the evidence of the sponsor's finances in relation to this finding
and concluded that his income fell well below the public benefit level which is
the yardstick to be used.
3. However,
when she came on to consider the appellant's Article 8 ground of appeal, the
Immigration Judge having concluded quite properly that there was family life in
existence between the appellant and the sponsor, found at paragraph 39 that the
appellant could not enjoy family life with her sponsor where she currently
lives in Ethiopia because the sponsor had not legal right to enter Ethiopia for
settlement. The sponsor had not long been granted refugee status in UK and had begun to form a settled life there. In addition the rest of his family was in
the United Kingdom. Neither party could of course return to Somalia, their original country of origin, to enjoy family life.
4. Whilst
recognising that the state did not have an obligation to respect an applicant’s
choice of country of residence, the Immigration Judge found for those reasons
that there were clear insurmountable obstacles to the family enjoying family
life anywhere other than in the United Kingdom. In reaching this conclusion
she also took into account that the appellant herself fled Somalia to seek refuge in Ethiopia and was living under harsh conditions and was a
vulnerable single woman with two young children. She also took into account
the impact their separation would have on the sponsor who wished to be reunited
with his family.
5. In the
grounds of the application the respondent submits that the Immigration Judge
has given a lack of reasons for finding that there are insurmountable obstacles
to the appellant enjoying family life outside of the UK. It was submitted that
the reason that the Immigration Judge gave were not adequate and that the
statement that the appellant was living under harsh conditions and was a young
single woman was not sufficient. The error was further compounded, it was
submitted, because it was accepted the sponsor had visited the appellant in Ethiopia which resulted in her becoming pregnant. There was no evidence before the
Immigration Judge that the sponsor could not settle legally in Ethiopia.
6. The Senior
Immigration Judge who ordered reconsideration also identified the fact that the
judge appeared not to have taken any account of her finding that the appellant
could not meet the requirements of the Immigration Rules in relation to
maintenance and weighed that in the balance between the public interest and the
private right.
7. In his
submissions Mr Smart said that the Immigration Judge had no evidence at all
before her that the sponsor had no legal right to reside in Ethiopia and no evidence as to the circumstances in which the appellant was living in Ethiopia. In addition she appeared to have failed to take into account what the ECO had
said about the conditions in which the appellant had to live in Ethiopia in his notice of decision. He submitted that the Immigration Judge had failed to
take properly into account the fact that the appellant could not meet the
maintenance requirements of the Rules and that as the Deputy President in KA
(Adequacy of maintenance) had pointed out, it was extremely undesirable to
foster situations where immigrant families might have to exist on money less
than social benefits, which in turn would create a much lower standard of
living for those persons. In this case the family would be living below the
breadline and it was material factor to take into account in deciding the
proportionality of the respondent's decision.
8. In response,
Mr Pipe who had filed a Rule 30 reply in which he relied said that the sponsor
had only visited Ethiopia on one occasion. He also submitted the judge
properly directed herself as to the relevant law. The sponsor has refugee
status in the United Kingdom and it was relevant that consideration should have
been given, as the judge did, to the consequences of the sponsor having to give
up his residence and status here to live in a country where his standard of
living would not be nearly as good. In addition, the sponsor had extended
family in the United Kingdom. The judge had recognised the state has no
obligation to respect the applicant’s choice of residence but she then
identified the circumstances in which the appellant was living in Ethiopia and the fact she had originally had to flee Somalia. She was living with the
second appellant, her 6 year old sister, and had recently given birth to the
couple’s first child. She would therefore be a young woman living in Ethiopia with two very small children, one a babe in arms. The judge had considered the
continued separation of the family and indeed the rights of all members of the
family in reaching her conclusion. He submitted that the judge had given
proper reasons for finding that it was not reasonable to expect the sponsor to
join the appellant in Ethiopia.
9. In relation
to the adequacy of maintenance point, Mr Pipe submitted that although the judge
had made no specific reference to this, she would not have considered Article 8
at all had she found that the provisions of paragraph 281 were met. Although
he accepted the shortfall in the maintenance requirements implicitly had to be
considered in the balance, it did not outweigh the other considerations that
the Immigration Judge had taken into account. He submitted there was no
material error of law in her determination.
10. I find the
judge has materially erred in law in her approach and for the reasons that
follow, there should be a full reconsideration of the Article 8 ground of the
appeal.
11. It is not
correct, as Mr Pipe submitted, that if the Immigration Judge found that
paragraph 281 was met, that she would not have needed to go on to consider
Article 8. The appeal on Article 8 grounds is separate and distinct and
although an Article 8 balancing exercise will clearly be influenced by an out
of country ... .. the appellant's ability to meet the requirements of the
Immigration Rules, that is not the end of the matter. However in my view the
Immigration Judge in reaching her conclusion on the Article 8 ground of the
appeal did fail to take into account a number of material issues, not least of
which was that she failed to give any weight at all to the fact that the
appellant and her husband cannot show that they have adequate money to live on,
bearing in mind that there are now two children to support. That was a
material consideration it should have weighed in the balance. However, it is
not the sole factor and there are a number of other relevant factors that had
to be considered and in my view the Immigration Judge has failed to do so
adequately and properly.
12. First of all,
the Immigration Judge reached the conclusion that the sponsor would not be able
to live in Ethiopia without giving any reasons at all, save that she accepted
the appellant’s case that that was the position. The Immigration Judge noted
that the sponsor had visited Ethiopia on one occasion. There is no indication
in the determination for how long he visited or on what basis he was granted
admission to the country. The determination does not make it clear how long the
sponsor has been living in the United Kingdom; when he was granted refugee
status, nor does it make it clear what was the evidence as to the extended
family he has in the United Kingdom and what kind of relationship he has with
his family members. In short, there is very little detail about the sponsor's
life in the United Kingdom save for the details about his work.
13. Consideration
should have been given clearly to the fact that this is not a case of removal
from the UK but rather an appellant who wishes to come to the United Kingdom to enjoy family life here. In those circumstances the fact that the sponsor
has refugee status here and has settled will have less impact than in the case
of a British citizen who has lived here all of his or her life – AB (Jamaica) v SSHD [2007] EWCA Civ 1302. There is no indication in the determination of
how the appellant and the sponsor came to meet in the first place. There are
no reasons given by the Immigration Judge at paragraph 41 for why she concluded
the appellant was living under conditions and it is not clear on what evidence
she based that conclusion, particularly in the light of the ECO’s comments in
the notice of decision. The Immigration Judge placed some weight on the fact
that the children needed both parents to offer them nurturing and guidance and
yet failed to weigh in the balance that this is an application by the appellant
to join the sponsor in the United Kingdom and he has to date not spent any
significant periods of time with the appellant and her sister.
14. The Tribunal
concludes that the Immigration Judge did materially err in law for these
reasons and that the proper course now is for a reconsideration of the Article
8 ground of the appeal so that the evidence can be reconsidered in full and the
balancing exercise carried out taking account of all the factors identified
above. For these reasons the Tribunal directs that none of the findings of
Immigration Judge O’Garro in relation to the Article 8 ground of the appeal
will stand.”
4. The hearing before me took
place on 19 February 2009. Mr B Bedford, instructed by Sultan Lloyd Solicitors,
appeared on behalf of the appellant. Mr L Petryszyn appeared on behalf of the Entry
Clearance Officer.
5. It was accepted by Mr Bedford
in light of what had been said by the Court of Appeal in AS
(Somalia) [2008] EWCA Civ 149 that the effect of Section 85(5) of the
Nationality, Immigration and Asylum Act 2002 is that that subsection is
applicable not only to Immigration Rules issues but also Article 8 issues and
therefore under Section 85(5) any post-decision events which generate or enhance
a human rights based claim for entry clearance can be the subject of a fresh
claim and if necessary a fresh appeal, and therefore there is no breach of
Convention rights in the factual matrix in respect of the Article 8 issue being
restricted only to the circumstances appertaining at the time of the decision
to refuse.
6. In light of that Mr Bedford
argued that the issue was whether there was an insurmountable obstacle to the
appellant and her husband enjoying family life if the appellant did not obtain
a grant of entry clearance and the issue therefore was whether the sponsor
could join her in Ethiopia. It was a question of whether if he could go he
would be able to earn a living there but most importantly whether he would be
entitled to enter and remain there. On that there was no evidence other than comments
in the explanatory statement. There was a concern as to whether the Tribunal was
in a position today to deal with the reconsideration in the absence of such
evidence.
7. Mr Petryszyn said that he had
such evidence in the form of an extract from the January 2008 COIR on Ethiopia at section 32 of that report and, he produced a copy of this and there was a brief
adjournment to enable Mr Bedford to consider it.
8. Mr Bedford thereafter argued
that it would be necessary for there to be an adjournment in order for the
appellant to apply to the Ethiopian Embassy to see if there were
insurmountable obstacles to his going to Ethiopia to work.
9. Mr Petryszyn argued that this
would be quite inappropriate and on the basis of what was said there there was
sufficient evidence before the Tribunal and it was not necessary for him to
apply and see what would happen but the matter could and should be determined
on the basis of the evidence before the Tribunal.
10. After consideration I concluded
that it would not be appropriate to adjourn. There was sufficient evidence in what
was said at part 32 of the January 2008 COIR on Ethiopia for the matter to be argued
today. However there was a relevant point in respect of Article 11 of the
proclamation regulating the issuance of travel documents and visas and
registration of foreigners in Ethiopia, no. 271 of 1969, as referred to at (v)
on page 168 of the report. That Article was not produced in the COIR. I agreed
to delay determining the appeal to enable the representatives to address me on
this, and accordingly seven days from the first hearing was allowed for both
sides to provide evidence relating to Article 11 and its contents and
implications and thereafter a further seven days to make submissions on what
they had to say about the evidence they and the other side had produced.
11. Thereafter the sponsor, Isa Fos
Sharif, gave evidence. He confirmed that his statement dated 12 February 2009 was true. He had visited Ethiopia in 2007. He had arranged the
visit. The appellant had been in Djibouti and from there she had gone to Ethiopia when he had told her to go there. He had approached the Ethiopian Embassy for a
visa around the summer of 2007. It had taken about four weeks to get a visa. He
could not remember how much it had cost, but it had been affordable. He had
not been interviewed. He had had to produce his travel document, by which he
meant an ID document and proof of address. He had not been required to show an airline
ticket. The visa had been for three months, the maximum. The air fare was £550-600
approximately.
12. He currently worked as a production
operator in a food factory. He had had about four day’s training on the job. He
had arrived in the United Kingdom in 2002 when he was aged 14 or 15, and was
now 21. He had obtained an Esol qualification in English literacy at level 3
and also a BTech Intro and a BTech level 1. He spoke English and Somali but no
Arabic and no Ethiopian language. When he had been in Ethiopia he had spoken English and Somali. He had had dealings with the Ethiopians at the
airport and had some problems with the guards as they did not speak English but
then they had got someone who spoke English and after that they had let him
go. He did not have concerns about the fact that he had been interviewed. There
had been simple questions concerned with why he had come and how long he was staying
and he had filled in a form. He had told them he was visiting his wife. He
had not been questioned about his wife or about her nationality nor how much
money he had with him.
13. When he had been in Ethiopia for nearly four weeks he had lived in a residential area of Addis Ababa. The
people who lived there were mainly Ethiopians and there were Somalis also. His
wife did not speak Ethiopian. She did not work. She survived on the money he
sent to her.
14. In the United Kingdom he had his mother, grandmother, sister and two brothers, an uncle and
cousins. He had come to the United Kingdom with his mother and his sister who was
aged 18 or 19, and his brothers who were aged 16 and 22. His siblings did not
work, they were students. His mother worked as a carer for the elderly. His grandmother
did not work. He lived alone. His uncle was about 15 and his mother looked
after him and his oldest cousin was about 16 and none were working that he knew
of. They were students.
15. He had not taken any money other
than his own money with him when he had gone to Ethiopia. None of his
relatives sent money to people in Ethiopia. His mother looked after four
people, his sister, brother, uncle, cousin and grandmother. He did not really
know what his mother earned.
16. On cross-examination the sponsor
said that he began to work for Ranstad on 24 November 2006. At the date of refusal therefore he had been working for them for eleven months. He had
gone on paid leave when he had visited Ethiopia. He could not remember how
much paid annual leave he was entitled to by the year at that time and it was
different now anyway. When he had applied for the visa he had told them he was
going to see his wife. She was living in rented accommodation and had been there
for a few months in October 2007. He had been paying the rent since she moved
to Ethiopia, initially for the hotel she was in and then in the current
accommodation. The accommodation was a shared home, like a bungalow. Her part
had two bedrooms and a shared bathroom and a shared kitchen. There was electricity.
With regards internal plumbing, there was a normal African kitchen with firewood
to light and a stove. The house had access to water if the water was running
and if it was not running then it was necessary to buy it. He did not know how
many rooms there were in the rest of the house, nor who lived there. There were
a few families there, he did not know how many. If his wife wished to access her
part of the building then she would go through a gate in an open area and then
straight through a door to the rooms.
17. There was no re-examination.
18. In his submissions Mr Petryszyn relied
on the refusal notice and the explanatory statement. The appeal had failed on maintenance,
and AS as referred to above was relied on in respect of the
Article 8 aspect. The refusal of entry clearance would not be
disproportionate. The appellant could re-apply if there were up-to-date
evidence that changed the situation. It was a question of the date of
decision. The sponsor had visited for a three and a half week period and contact
had been maintained. He had gone to Ethiopia on a tourist visa. He had told
them the purpose of the application, that he was visiting his, wife and they
were not interested in documents beyond the travel document and ID and he had
not been interviewed. He had had a short interview on arrival and there was no
interest in his earnings or his wife’s nationality but just the purpose and
duration of the visit. It was therefore possible to get a tourist visa for a
short period and he had no problems in arriving or leaving. He could go and extend
his visits by entry visa as could be seen at (2) of page 168 of the COIR. He
would be able to go and establish himself in business or on some other basis. The
issue of what Article 11 said was to be addressed subsequently in written
submissions. Family life could be maintained. It was possible to get a visa
or a residence permit. The circumstances for the appellant were not unduly
harsh on the basis of today’s evidence. She had been supported by the sponsor
for some time. The appeal should be dismissed.
19.
In his submissions Mr Bedford started
from the premise that there was a finding of family life that was protected. The
denial of entry clearance would be an interference in line with what was said by
the Court of Appeal in AB (Jamaica). The burden of proving
proportionate interference was on the Entry Clearance Officer where there were
insurmountable obstacles to the couple enjoying family life other than in the United Kingdom. The Entry Clearance Officer could not satisfy that burden. Mr Bedford
referred to the point at paragraph 6 of the first stage reconsideration
concerning the order for reconsideration and the issue of failing to take into
account the inability to meet the requirements of the Immigration Rules as part
of the Article 8 balance. There was a reference by the Senior Immigration
Judge to a material factor of the family living below the breadline in the United Kingdom. Counsel’s argument, which had been taken into account, and hence the
appeal was originally allowed under Article 8 though not under the Rules, was
set out at paragraph 8 and paragraph 9. There it had been accepted that the
shortfall in the maintenance requirements implicitly had to be considered in
the balance but it was argued that it did not outweigh the other considerations.
The Senior Immigration Judge had nevertheless found there to be a material
error of law and it was necessary to determine whether the Entry Clearance
Officer could justify the interference. It was argued that there were
insurmountable obstacles to the sponsor living with the appellant in Ethiopia. The reference in the explanatory statement to the Somali community and the support
it could offer was unsourced. It would seem therefore that in the reference to
informal job opportunities it was suggested that it was possible to get round
the immigration controls and work in the black economy, but it was argued that
the Entry Clearance Officer could not rely on a person working illegally in
another country in order to maintain family life. It was for the Entry
Clearance Officer to prove that Article 7 of the proclamation was current in
Ethiopia and not just a theoretical possibility and that there was a real
prospect of the sponsor getting a residence permit entitling him to work or set
up a business, albeit that he had no job offer or business set up in Ethiopia.
The existence of a power to grant residence under (v) at page 168 of the COIR was
illusory. There were no inherent discretions in the Ethiopian law and what was
set out there did not necessarily set out the legal position. Paragraph (v)
appeared to provide a discretion and it was not reasonably foreseeable that the
Ethiopian government would allow the sponsor to settle until he had a job or a
business and would not let him live with an appellant who lacked residence
status.
19. The absence of a provision to
extend the residence visa did not mean that there was untrammelled power to do
so or it would be less difficult to get a residence permit than a transit visa
or a tourist visa. There was a lack of provision for extension of a residence
permit which indicated there was no such provision. This could be seen from
(v) again. The sponsor’s job in the United Kingdom was at a fairly low level
and was described as low skilled. It did not support the argument that he could
be optimistic about work in Ethiopia. AB (Jamaica) was not authority for what it was said to be by the Senior Immigration Judge at
paragraph 13 of the stage 1 determination. Such a person was no less entitled to
family life than a British person. Article 8 applied to all people who were
subject to the authority of the particular high contracting party and there was
no differentiation between UK nationals and others. The burden of proof was on
the Entry Clearance Officer to show that the decision was proportionate. In
that particular case it had been allowed outright. There was no evidence from the
Entry Clearance Officer to satisfy the Tribunal that the sponsor in this case
could go to Ethiopia lawfully and live there legitimately and get work. There was
no evidence that his mother or other relatives could send him money. Visits, contrary
to what was argued on behalf of the Entry Clearance Officer, could not properly
be an alternative, given the finding of family life and interference. It was unclear
how the appellant’s living conditions in Ethiopia were relevant to the issue of
insurmountable obstacles.
20. I reserved my determination.
21. Subsequent to the hearing I
received from Mr Petryszyn details of the Ethiopian Regulations relating to
entry, exit, visas, residence permits and deportation. In a covering note Mr
Petryszyn stated that the Proclamation № 271 of 1969 referred to in the
Country of Origin Information Report for Ethiopia of January 2008 had in fact
been repealed on 3 July 2003 when Immigration Proclamation № 354/2003
came into force and there was also an Immigration Council Minister’s Regulation
№ 114/2004 which came into force on 11 September 2004 providing further
clarification of Proclamation № 354/2003. He made brief submissions in
respect of the Proclamation and the Regulations.
22. As a consequence of receipt of
this communication I caused a direction to be made on 5 May 2009 deeming the reconsideration to be part heard and giving the appellant an opportunity if she
so wished to commission an expert report. Subsequently, on 3 August 2009, an expert report was received.
23. The hearing reconvened on 4 August 2009. Mr Bedford again appeared on behalf of the appellant. On this occasion Mr
J Singh appeared on behalf of the Entry Clearance Officer.
24. Mr Singh referred to the date
of decision as 22 October 2007, and noted that the matter was proceeding under
Article 8 only, the appeal under the Immigration Rules having been dismissed.
It was a question of whether family life could be enjoyed in Ethiopia by the sponsor relocating. On the sponsor’s evidence he had been in Ethiopia between 27 August and 21 September 2007 and had successfully obtained a three
month visa for that visit which was valid between 3 August and 3 November 2007. He was either familiar with the application process or had been
well-advised. The question was whether he could continue family life in Ethiopia or what obstacles existed. It was argued that he could settle there. He had obtained
asylum status in the United Kingdom and work. The COIS had now been updated
with respect to what the sponsor would have to do to be able to settle in Ethiopia. The Regulations and Proclamation were the equivalent of the Immigration Rules.
Initially the sponsor would get a three month immigrant visa under Article
13(1)(b) of the Proclamation, and once there he would need to register and
could application for temporary residence a year at a time. The Ethiopian
Regulations said that after three years’ stay he could apply for a permanent
visa there. The appellant had no status in Ethiopia but there was capacity in
the Regulations for her to apply for an alien passport, as could be seen from
page 18 of the bundle, so she could get registered and become settled there.
The report even showed the levels of fees at page 27. The hardship seemed to
be in the United Kingdom where the couple could not meet the requirements of
paragraph 281 of HC 395. Article 8 was not absolute, and family life could be
enjoyed in Ethiopia by way of visits there as had been done previously.
25. Mr Singh asked that the expert
report be treated with caution. From the expert’s background it could be seen
that he had been barred from entering Ethiopia in the past so he did not have
an open mind but had been previously wanted by the Ethiopian authorities. He
had never given evidence before a Tribunal in the United Kingdom. The key
section was paragraph 114 onwards. He said the sponsor could not live in Ethiopia as he would not satisfy the Ethiopian Regulations, but no source was given for
this statement and it was just his opinion and he had not stated any figures
and had not interviewed the appellant and did not take into account the
previous success of the sponsor in visiting Ethiopia. The second sentence of
paragraph 114 displayed a general focus rather than concentrating on the date
of decision. It was a question of what the sources were for paragraph 116. It
was evidence, but it was limited. He did not advance the case as at date of
decision. The appellant had failed under the Immigration Rules. Family life
could be continued in Ethiopia. There was nothing to show that the sponsor
could not repeat his previous stay and the situation was akin to the various
probationary periods that were required under United Kingdom immigration law.
The appeal should be dismissed.
26. In his submissions Mr Bedford
referred to the expert report and argued that on the face of the Regulations
and the Proclamation they denied the sponsor the possibility of residing in Ethiopia. The question was whether it was reasonable for the appellant to continue family
life with the sponsor in Ethiopia and it could not be reasonable if he would
not be allowed to go there.
27. Mr Bedford referred to page 20
of the Secretary of State’s bundle at paragraph 17 which showed the
circumstances in which an immigrant visa would be issued. It could be seen
that none of these applied to the sponsor. He needed to be able to work and
the Regulations did not allow him to do so. In effect that was an end to the
matter. The expert had referred to the Regulations and what they stated. He
also considered the alternative of the appellant being a registered refugee and
having the sponsor join her under Ethiopian refugee law, but if that happened,
paragraph 115 had to be borne in mind. It was far from being a United
Kingdom-type family reunion policy. There was also the possibility of the
sponsor being allowed to join the appellant despite this but again paragraphs
121 and 122 dealt with that. So even allowing for this possibility, it was not
a reasonable option. If the sponsor could not work then it could not be said
that the alternative of the appellant joining the sponsor in the United Kingdom was unreasonable. It was necessary in the light of Beoku-Betts for
the appellant and the dependants to be considered. The appeal should be
allowed.
28. I reserved my determination.
29. It will be appropriate if I set
out first of all the relevant provisions of Ethiopian law as provided under
cover of Mr Petryszyn’s letter of 20 February 2009.
30. First there is the Immigration
Proclamation № 354/2003 which came into force on 3 July 2003. I do not propose to set out the whole of the Proclamation but rather to set out the
relevant paragraphs. Part 5, paragraph 12 lists the different types of visas
that exist:
“12. Types and
issuance of visas
1) Visas to be
issued in accordance with this Proclamation and Regulation issued hereunder
shall be the following:
(a) diplomatic
visas;
(b) special
visas;
(c) business
visas;
(d) immigrant
visas;
(e) tourist
visas;
(f) transit
visas;
(g) student
visas;
(h) exit visas;
(i) re-entry
visas;
(j) other visas
to be prescribed by Regulation to be issued hereunder.
2) The visas
specified under sub-Articles (1)(a) and (b) of this Article shall be issued by
the Ministry.
3) The visas
issued under sub-Articles (1)(c) and (j) of this Article shall be issued by the
authority.
4) The
conditions of issuance of visas shall be prescribed by Regulation to be issued
hereunder.
Part Six
Registration of
Foreigners and Residence Permit
13. Registration
1) The following
persons shall be registered by the authority:
(a) all
foreigners residing in Ethiopia;
(b) a foreigner
who enters Ethiopia with an immigrant visa, within 30 days of the date of his
arrival;
(c) a foreigner
who enters Ethiopia with a business or student’s visa and intends to stay for
more than 90 days, within 30 days of the date of his arrival;
(d) without
prejudice to Article 14 of this Proclamation, anybody who enters Ethiopia
without a visa pursuant to Article 4 of this Proclamation and intends to stay
for more than 90 days, within 30 days from the date of his arrival.
2) The
conditions of registration shall be prescribed by Regulation to be issued
hereunder.
…
15. Issuance of
residence permit
1) A foreigner
who is registered in accordance with Article 13 of this Proclamation shall be
required to obtain a temporary or permanent residence permit, as the case may
be.
2) Minor
children shall be recorded in the residence permits of their parents.
3) The
conditions of issuance of residence permits shall be prescribed by Regulation
to be issued hereunder.”
31. Thereafter at Regulation 22 the
earlier Proclamation is repealed and this Proclamation is stated at paragraph
24 as coming into force on the third day of July 2003.
32. Next there is a Council of
Ministers Regulation № 111/2004. This provides further clarification of
the Proclamation. The following provisions of this are of relevance:
“7. Alien
passport
An alien
passport shall be issued to a resident foreigner who is unable to obtain his
national travel document or who is stateless.
16. Business Visa
1) Business
visa shall be issued to foreigners who are coming to Ethiopia:
….
(b) without
prejudice to the provision of the relevant law concerning work permits, for
employment in any activity;
….
17. Immigrant
Visa
Immigrant
visas shall be issued to the following:
1) foreigners
who have been adopted by Ethiopians or who have valid marriages with Ethiopians
and are coming to reside in Ethiopia, and to members of their families;
2) family
members of foreigners holding permanent residence permits in Ethiopia;
3) foreigners
coming to reside in Ethiopia without either being engaged in any gainful
activities or becoming a public burden, and to members of their families.
26. Registration
1) An
application for registration in accordance with Article 13 of the Proclamation
shall be made by filling in a form issued for such purpose and the applicant
shall have the obligation to attach the following and to answer truthfully to
questions presented to him:
(a) a valid
travel document when relevant;
(b) an evidence
showing his reasons for residing or staying for more than 90 days in Ethiopia;
(c) other
information and documents that may be required in accordance with directives
issued by the Authority.
2) The applicant
shall, in addition to those required under sub-Article (1) of this Article,
furnish his photograph.
27. Residence
Permit
1) Any foreigner
who has been registered in accordance with Article 26 of this Regulation shall,
upon payment of the fee chargeable under this Regulation, be issued with either
a permanent or temporary residence permit, as the case may be, in accordance
with Article 28 or 29 of this Regulation.
2) Any foreigner
who has been issued with a residence permit shall have the obligation to notify
the authority of the occurrence of any change in the information furnished at
the time of registration, particularly a change in his name, nationality,
occupation, marital status or address of workplace or residence, within 30 days
from the date of such occurrence.
3) Any foreigner
shall have the obligation to present his residence permit or the identity card
referred to in Article 14(2) of the Proclamation or his travel document with
which he entered Ethiopia whenever required by the appropriate authorities.
28. Permanent
Residence Permit
1) A permanent
residence permit shall be issued to a foreigner who has entered Ethiopia by an immigrant visa as provided for in sub-Article (1) or (2) of Article 17 of
this Regulation.
2) Without
prejudice to sub-Article (1) of this Article, permanent residence permit may be
issued to any foreigner who has:
(a) established
his domicile in Ethiopia and lived in Ethiopia for at least three years
preceding the submission of his application;
(b) sufficient
and lawful source of income to maintain himself and his family; and
(c) good
character.
3) Notwithstanding
the provisions of sub-Article (2) of this Article, a permanent residence permit
may be issued to a foreigner who is married to an Ethiopian national if there
is a lapse of at least one year since the conclusion of the marriage.
4) A foreigner
engaged in investment or humanitarian activities in Ethiopia or who has made or
is expected to make outstanding contributions in the interest of Ethiopia may
be issued with a permanent residence permit irrespective of the waiting period
provided for in sub-Article (2)(a) of this Article.
5) A foreigner
who has obtained a permanent residence permit shall be issued with a work or an
investment permit in accordance with the appropriate laws.
29. Temporary
Residence Permit
1) A temporary
residence permit shall be issued to any foreigner who has been registered in
accordance with Article 26 of this Regulation and who is not entitled to a
permanent residence permit.
2) A temporary
residence permit shall be valid for a period not exceeding one year from the
date of issuance and shall be replaced by a new one where it becomes necessary
to stay longer.”
33. It is relevant at this point to
turn to the expert report of Herr Günter Schröder. Herr Schröder describes
himself as an historian and social anthropologist by training and has been
working for many years as an independent researcher and consultant. He has
regular contact with most of the various armed liberation movements fighting in
Eritrea and Ethiopia as well as many other political movements from both
countries and in 1975 was barred from entering Ethiopia due to critical articles
he had published and some seven years later was apparently on a death list as a
political opponent of the then regime. Subsequently he was enabled to visit
Ethiopia in November 1991 and in June 1992 was a member of the German election
observer team sent by the German Foreign Ministry and then between 1993 and
1998 was permanently stationed in Ethiopia as the unofficial country
representative for the German Protestant Churches Development Services, having
agreed to abide by a condition not to write on political issues. Between 1998
and 2000 he worked on secondment from the Lutheran World Federation and the
German Protestant Churches Development Services for the Ethiopian Evangelical Mekane Yesus Church as an advisor on its territorial and administrative reform. In
June 2000 however he was given 24 hours’ notice to leave Ethiopia by the Ethiopian security services. He has maintained a close interest in Ethiopia and other countries in the region and has written extensively on the region but,
it would seem, has not been able to go back to Ethiopia since 2000.
34. Herr Schröder makes the point
at the foot of page 2 of his report that in Ethiopia the official law and
policy documents do not reflect the real situation and in many areas of
governmental action current practice does not really correspond to the letter
of the law and there is no real rule of law in Ethiopia and the government
often blatantly disregards its own laws and Regulations and acts in open
violation of them. He refers to the highly personalised and arbitrary exercise
of state power at every level and the need for personal experience of the
realities of Ethiopia in order properly to understand and assess the situation
in the country.
35. Herr Schröder then goes on to
refer to the relevant legal documents which are the two I have mentioned above
and in addition Proclamation № 409/2004: Refugee Proclamation (RP), entry
into force 15 June 2004. He makes the point that paragraph 12 of the Refugee
Proclamation enables family members of asylum seekers and recognised refugees
living in Ethiopia to be permitted to enter and remain in Ethiopia, though he
notes that neither the Proclamation nor the Regulations deal specifically with
this category of immigrant. He says that the Ethiopian policy on business and
immigrant visas is in practice very restrictive and there is a high level of
mistrust regarding foreigners and the thresholds for granting business and
immigrant visas are very high. He notes that there is a relatively small
number of foreigners legally residing in Ethiopia, paragraph 8 on page 4 of his
report.
36. He deals in some detail with
the position of refugees in Ethiopia and general country conditions. Herr
Schröder states at paragraph 114 of his report that it seems from the
information available to him that the appellant is living as an undocumented
and unregistered refugee in Addis Ababa as she apparently did not register
within the period prescribed by the Refugee Proclamation with the Ethiopian
authorities as a refugee and she therefore, he says, cannot benefit from the
family unity clause of the Refugee Proclamation. He considers that if she were
now to register with the authorities as a refugee and apply for refugee status
she would most likely be sent to one of the camps for Somali refugees. As a
registered asylum seeker she would be entitled to benefit from the family unity
clause but he considers that the wording of the Refugee Proclamation as well as
Ethiopian practice strongly suggests that this clause is meant to benefit family
members of refugees having arrived in Ethiopia together with the applicant for
refugee status or joining the applicant later from the country of origin. He
says at paragraph 116 that there are no cases known at all of the Ethiopian
government authorising family reunification for recognised refugees living
within Ethiopia with family members living in third countries through
resettlement of the latter to Ethiopia.
37. Herr Schröder considers that
the sponsor is not entitled to an immigrant visa as he does not fall within the
categories of persons entitled to such a visa. In this regard he makes the
point that the sponsor is not married to an Ethiopian citizen, his wife is not
a legal resident in Ethiopia and he does not have the means to live in Ethiopia without seeking employment or engaging in business activities or becoming a public
burden. Herr Schröder says at paragraph 5 of his report that business visas
are accorded for various short-term and long-term business activities including
employment activities. For the latter, visas are only issued if the relevant
Ethiopian authorities have ascertained that there is no qualified Ethiopian for
the activity in question. After arrival, holders of a business visa who entered
Ethiopia for employment put roses have to obtain a work permit and a
temporary residence permit.
38. It is clear if one looks at
Regulation 17 that the sponsor cannot satisfy either sub-paragraph (1) or
sub-paragraph (2). Whether or not he can satisfy Regulation 17 sub-paragraph
(3) depends upon the interpretation of the phrase “without either being engaged
in any gainful activities or becoming a public burden”. Herr Schröder clearly
interprets this as meaning that the sponsor cannot satisfy the requirement of
having the means to live in Ethiopia without seeking employment or engaging in
business activities or becoming a public burden. Though the matter is not
entirely free from doubt, I consider that his interpretation is a proper
reading of sub-paragraph (3). In other words to satisfy this requirement a
person must be engaged in gainful activity and not become a public burden. It
would hardly make sense for a person to be granted a visa enabling him to
reside in Ethiopia on the basis of showing that he was not going to be engaged
in any gainful activities. It is possible to interpret it as referring to
somebody who is entirely self-sufficient, and even if that were the case, it is
very difficult to see how the sponsor could satisfy that requirement since he
has been unable to assist his wife in showing that she can be maintained
without recourse to public funds in the United Kingdom. He might be able to
travel to Ethiopia with sufficient funds to enable him to show he would not be
a charge on public funds in the short term, but an inability to work would
fairly soon mean that he would become a charge on public funds, and on my
interpretation of the relevant provisions, he would certainly be unable to
obtain a permanent residence permit, as the implication from sub-paragraph (2)
of paragraph 27 of the Regulations is that a foreigner who has been registered
with a residence permit, since he has to notify such matters as change of the
address of his work place, implies that he is a person who has employment or
some other form of lawful income.
39. Herr Schröder goes on to state
that theoretically the sponsor will be entitled to reunite with his family
under the family unity clause of the Refugee Proclamation, but then refers back
in effect to his paragraph 116 concerning the absence of any cases of this
being done. Even if that were not the case and he were allowed to reunite with
his family he would not acquire a permanent residence right but only a
registration as a recognised refugee with limited legal security and would only
be restricted under paragraph 21(3) of the Refugee Proclamation which would
restrict his freedom of movement and work such as, as set out at paragraph 122
of the report, he would not be able to open a business legally or legally seek
salaried employment to maintain his family but at best would only be able to
work illegally. Herr Schröder makes the point that Ethiopian authorities in
Addis Ababa currently tolerate such violations of the letter of the law for
their own political reasons, but there is no guarantee whatever that they would
continue to do so and this would expose the appellant, the sponsor and their
family to a considerable risk of economic insecurity and harassment by the
Ethiopian authorities. Lacking legal status and the financial means to rent lawfully
adequate accommodation for the sponsor and his family would force them to live
in low quality, overpaid and overcrowded accommodation or even in a refugee
camp.
40. I am satisfied from reading
Herr Schröder’s report that he is properly to be regarded as an expert with a
good deal of knowledge of and insight into Ethiopian affairs and the relevant
legal provisions that I have set out. The fact that he does not always source
his information is beside the point: as an expert who has displayed significant
knowledge of Ethiopia, he is entitled to express views and comment upon matters
without having to provide sources on every occasion, though it is clearly very
helpful where an expert is able to do that. For example, when he states at
paragraph 116 that there are no cases known at all where the Ethiopian
government has authorised family reunification for recognised refugees in
Ethiopia for resettlement with a family member living in a third country, a
matter with which Mr Singh took issue, I consider that Herr Schröder is
entitled to state this on the basis of his knowledge of the situation in
Ethiopia and his regular monitoring of developments in Ethiopia as he sets out
at paragraph 2 of his report where he refers to the various ways in which he keeps
up to date on developments in Ethiopia and other countries in the Horn of
Africa.
41. Bringing these matters
together, I consider that the sponsor has shown that he would not be able to
work legally in Ethiopia. He would be able to visit for a period of time as he
did previously and be self-sufficient during that period, but he would not be
able to remain for any longer period without having a work permit, and there is
no indication that there is any opportunity for work available to him in
Ethiopia; in particular, it seems unlikely that there is no qualified Ethiopian
available given the sponsor's lack of particular skills and if he were forced
to work illegally in circumstances described by the expert, I consider that
that would not be reasonable for the reasons Herr Schröder gives.
42. This is of course not the end
of the matter. It is necessary to evaluate the Article 8 claim on the proper
structured basis as set out in particular by the House of Lords in Razgar
and further explained in subsequent decisions. The first point is whether or
not there is family life between the appellants and the sponsor. I have
referred generally to the appellant but of course it must be borne in mind that
there are two appellants, the second appellant being the first appellant’s
young sister, who has lived with her since 2005, and who was born in April 2002,
and there is also now of course the child of the appellant and the sponsor.
The sponsor’s evidence, as set out in his witness statement, is that he married
the first appellant in July 2006 in Djibouti, they having known each other
prior to their marriage as they lived close to each other in Mogadishu in Somalia. It seems that the sponsor came to the United Kingdom in 2002. He said that the
appellant fled Somalia and went to Djibouti in 2005 and while she was living
there they made contact with each other and he flew there from the United Kingdom and they married there. She went on to Ethiopia and he came back to the
United Kingdom and visited her for three and a half weeks in August and
September 2007, during which time she became pregnant with their child, who was
born on 19 June 2008. The sponsor also said in his statement that the couple
had kept in touch by email, letters, photographs and telephone calls.
43. On the basis of this evidence I
accept that there is family life between the appellant and the sponsor, albeit
that it is family life that has only been enjoyed to the extent of their being
in each other’s company for very limited periods. It is not clear from the
sponsor’s evidence how long he was with the appellant at the time of the
marriage, and as has been set out above, they have spent some three and a half
weeks in each other’s company after the marriage.
44. It must be accepted that
refusal of entry clearance has a significant effect on their family life. The
next question is whether there is such interference as potentially to engage
the operation of Article 8. In this regard, clearly the extent of family life
enjoyed by the couple when physically together cannot be enjoyed by being kept
apart, but the family life that has very largely existed during the time of
their relationship could continue to be enjoyed since they could still remain
in contact by means of letters, photographs and telephone calls. It is
relevant also to note the sponsor’s evidence that the appellant is now unable
to send him regular emails as she finds it hard to leave the house with the
baby. However, if one goes on to assume that there will be such interference
as potentially to engage the operation of Article 8, which I think on balance
is a reasonable conclusion to come to, then it is clear that such interference
is in accordance with the law, and the issue then arises as to whether it is
necessary in a democratic society in the interests of national security, public
safety or the economic wellbeing of the country, for the prevention of disorder
or crime, for the protection of health or morals or for the protection of the
rights and freedoms of others. In this regard I find such interference to be
necessary in the interests of the maintenance of effective immigration control as
well as to the economic wellbeing of the country, and in this regard it is
particularly important to note that the couple have been unable to satisfy the
requirements of the Immigration Rules concerning maintenance, and therefore
there would be a clear charge on public funds were the two appellants and the
first appellant’s child to join the sponsor in the United Kingdom.
45. The final issue then, as so
often in Article 8 cases, is whether such interference is proportionate to the
legitimate public end sought to be achieved, and in this regard the burden is
on the Secretary of State.
46. In this regard I bear in mind
the conclusions I have come to concerning the reasonableness of the sponsor
going to live with the appellants in Ethiopia. Though the appellants’ living
conditions there on the evidence do not appear to be particularly onerous, I am
satisfied on the evidence that the sponsor would not be able to work legally
and do not consider it can be said to be reasonable for him to work illegally
or for the appellants to make a belated application for registration with the
Ethiopian authorities as refugees and for the couple together with the two children
then to go and live in a refugee camp. It is clear therefore that family life between
the sponsor and his family in terms of living together cannot be carried on in
Ethiopia and the resulting question is therefore whether any lack of respect
for family life that would obtain as a result of the couple being kept apart,
indeed the family being kept apart, by the appellants’ non-admittance to the
United Kingdom is proportionate to the legitimate public end which is sought to
be achieved. Clearly the sponsor can visit the appellants as he did before
when he obtained a visa for up to three months and was apparently able to
obtain leave from work for the period of nearly a month during which he visited
Ethiopia. Communication by letters and photographs and telephone calls would
appear to be able to be maintained, I note the difficulty being experienced by
the first appellant in sending emails given the problems of leaving the house
with the baby. It is also not an irrelevant matter to bear in mind that the
sponsor, who is clearly an enterprising young man, may in the future earn at a
level allowing the requirements of the Immigration Rules to be met; hence restricting
the duration of the period of limited cohabitation. It is also relevant to
bear in mind, as I have noted above, that, even bearing in mind the constraints
caused by living in different countries, the couple have spent relatively
little time together. The sponsor has been in the United Kingdom since 2002,
and since then when the first appellant went to Djibouti in 2005 they made
contact and he flew there from the United Kingdom and they married there and
were together for an unspecified but relatively brief period of time. Since
then, as I have set out, they have spent some three and a half weeks in each
other’s company. In my view, having considered the evidence set out above, it
has been shown on behalf of the Entry Clearance Officer that the interference
is proportionate to the legitimate public end sought to be achieved. Such
family life as the couple have can be maintained in the way in which it has
existed for nearly all of their married life, bearing in mind the legitimate
public end which is sought to be achieved, the economic wellbeing of the
country and the maintenance of effective control of immigration, a relevant
aspect of which in this case is the inability of the appellant to satisfy the
requirements of the Immigration Rules on maintenance. I therefore conclude
that the appeal under Article 8 is dismissed.
Signed
Senior Immigration Judge Allen
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