Case No:  C1/2002/2266/QBACF
Neutral Citation No:  [2003] EWCA Civ 765
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN’S BENCH DIVISION - ADMINISTRATION COURT)
(Mr Justice Roderick Evans)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Tuesday 17th June 2003
Before:

LORD JUSTICE SIMON BROWN
(Vice-President of the Court of Appeal Civil Division)
LORD JUSTICE KAY
and 
MR JUSTICE BODEY

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Between:

	THE QUEEN (on the application of EKINCI)	Appellant	
	- and -		
	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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C Jacobs Esq
(instructed by Duncan Lewis & Co) for the Appellant
A Underwood Esq, QC & J P Waite Esq
(instructed by The Treasury Solicitor) for the Respondent)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Simon Brown:
1.	The appellant is a Turkish citizen who arrived in this country in April 1999 and claimed asylum, untruthfully asserting that he had not previously sought asylum in another EC country.  Shortly after arrangements were made for his removal to Germany under the Dublin Convention, he married a British wife.  The Secretary of State refused his application to remain on the grounds of his  marriage and again issued removal directions.  The appellant having asserted through solicitors that such removal would breach article 8 of the ECHR, the Secretary of State by letter dated 17 April 2002 certified the allegation to be manifestly unfounded, thereby disentitling the appellant to an appeal under s65 of the Immigration and Asylum Act 1999 (“the 1999 Act”).  That is the decision under challenge in these proceedings, a challenge dismissed by Roderick Evans J on 23 October 2002.
2.	The Secretary of State acknowledges that the appellant’s removal to Germany would interfere with his right to respect for his family life but contends that this would be proportionate having regard to the public interest in maintaining effective immigration control and deterring abuse of the asylum system.  Given the requirement for a foreign national seeking settlement in the UK as a foreign spouse to hold prior entry clearance for that purpose, the Secretary of State submits that the appellant ought not, by marrying a British citizen whilst in this country without leave, to be permitted to escape that control.  The appellant’s challenge to that approach centres upon his contention that he would not in any event qualify for entry clearance since he would be unable to maintain himself without recourse to public funds.  The Secretary of State’s response is that the question whether or not the appellant would strictly qualify for entry clearance is at the present stage immaterial:  any long term article 8 claim that he has now would be that much stronger when the question of entry clearance comes to be considered and it is then that it should be brought into account, not at this stage:  all that has to be justified now is the interference with the appellant’s family life pending the determination of an entry clearance application made in Germany.
3.	With that brief introduction let me turn at once the background to the case which is admirably set out in the judgment below from where I gratefully take it.
“4.	…  The appellant was born in Turkey in September 1970.  On 2 April 1999 he arrived at Dover.  He claimed to have left Turkey on 26 March 1999 and to have travelled clandestinely concealed in lorries, disembarking only on the ferry to this country.  He stated that he had never sought asylum in any other European Union country.  This account, however, was wholly untrue.  
5.	Enquiries were made of other countries by the defendant and on 14 July 1999 confirmation was received from Germany, who had made a positive fingerprint match, that the appellant had entered Germany on 29 September 1991 and that he had applied for asylum there on 1 October 1991.  That application had been refused with effect from 7 November 1994.  He had last applied for asylum in Germany on 18 August 1998; that application had been refused on 11 November 1998.  
6.	On 6 October 1999, in response to a request from the United Kingdom, Germany accepted responsibility for the examination of the appellant's asylum claim under the provisions of Article 8 of the Dublin Convention; Germany being the first member state where asylum had been sought and an asylum application made.  Two days later, on 8 October 1999, the appellant's asylum claim in the UK was refused under the provisions of section 2 of the Asylum and Immigration Act 1996.  
7.	On 29 October, in breach of the conditions attached to his temporary release, the appellant failed to attend at Dover for service of the defendant's certification letter.  No explanation was ever given for his failure to comply with that reporting condition.  On 11 November 1999 Germany agreed to extend the deadline for the appellant's return to Germany and on 22 of that month the appellant again failed to attend at Dover for service of the defendant's certification letter and again there was no explanation for this.  On 27 January 2000 the appellant for the third time failed to attend at Dover for service of the defendant's certificate.  An absconder action was initiated, but on 13 February 2000 absconder action was discontinued as the whereabouts of the appellant had been provided by his solicitors.  Following that, on 28 February 2000 the appellant was served with the defendant's certification letter refusing his application for asylum on third country grounds.  
8.	On 1 March 2000 arrangements were made for the appellant's removal to Germany on 8 March.  On 5 March the defendant was informed that the appellant's then solicitors had lodged an application for permission to apply for judicial review under number CO/819/00.  The appellant's removal to Germany was cancelled and Germany was informed, yet again, that the appellant would not be keeping the arrangements that had been made and that he had initiated suspensive legal proceedings.  
9.	In May 1999 the appellant had started a relationship with Safiye Armagan a lady whom he met when they were both in Turkey.  She lived in the United Kingdom and in January 2000 she had obtained British citizenship.  They became engaged in April 2000; that is a month after the application for permission to apply for judicial review had been made.  A month after that, on 10 May 2000, the appellant married Ms Armagan.  The defendant, however, was not aware of that marriage for a further eight months.  On 25 January 2001 a marriage application was received by the defendant.  This was not actioned, as the appellant's judicial review application was still pending.  On 14 February 2001 a letter was sent to the appellant's solicitors asking for a copy of the grounds of relief which he had submitted to this court.  No reply was received.  A similar letter was sent on 8 March 2001.  Again, no reply was received.  On 7 July 2001 a son was born to the appellant and his wife.  On 6 August 2001 a new firm of solicitors acting for the appellant wrote to the defendant to inquire as to the progress with the marriage application; that is the application to allow him to stay in this country.  
10.	On 22 August 2001 a copy of the grounds which the appellant had submitted to this court was obtained by the defendant directly from the court.  Those grounds asserted the appellant's support of the PKK; his lack of documentation; and that his likely treatment if returned to Turkey would infringe his Article 3 rights.  
11.	On 19 February 2002 the defendant wrote to the appellant's solicitors to invite them to withdraw the first judicial review application.  It was not withdrawn, but on 7 March 2002 it was dismissed.  On 1 April removal directions were set for 18 April.  On 16 April the appellant, now represented by further solicitors, was interviewed about his marriage.  His solicitors asserted that his removal from the United Kingdom would be a breach of his Article 8 rights, on account of his marriage, and there then followed the [certification decision].  
4.	There followed the Secretary of State’s letter of the 17 April 2002, certifying that the appellant's allegation of breach of his Article 8 rights was manifestly unfounded:
“2.	After full and careful consideration, the Secretary of State has concluded that this allegation is manifestly unfounded for the following reasons.
3.	The question for the Secretary of State is whether the potential interference with your client's right to respect for his family life, if he were to be returned to Germany, would be proportionate and commensurate when balanced against his legitimate concerns in the public interest to maintain a credible and effective immigration control to the United Kingdom, and to deter abuse of the asylum system.
4.	Parliament has set a mandatory requirement for a foreign national seeking settlement in the UK as a foreign spouse to hold prior entry clearance for that purpose.  The Secretary of State attaches the greatest weight to this mandatory requirement and he is firmly of the view that this requirement should be waived only in the most exceptional of circumstances.
…
6.	The Secretary of State takes the view that it would be open to your client to apply at any British diplomatic post overseas for the appropriate entry clearance to enable him to return lawfully to this country to resume his asserted family life.  In such circumstances the interference to your client's right to respect for family life would be temporary and would obtain only for the duration of the time it would take for him to apply for the requisite entry clearance and for his application to be processed.  
7.	It would also be open to your client's wife as an EU citizen to accompany him when he is returned to Germany and remain with him until such time as he gains entry clearance.  
8.	There are no insurmountable obstacles to your client's return to the UK should he satisfy the conditions required for him to return lawfully to the UK to do so.  Any hardship experienced by your client would only obtain until such time as he had met and complied with the entry requirements for settlement in the UK as a foreign spouse.
9.	In such circumstances the Secretary of State firmly believes that the interference with your client's right to family life under Article 8 is strongly outweighed in these particular circumstances when balanced against the legitimate public interest concerns which are to: 
ensure the security and economic well being of this country by properly controlling, by means of the entry clearance system, those who enter the United Kingdom;
prevent disorder, by discouraging others from circumventing the system; and to
protect the rights and freedoms of others who do follow the proper procedure to enter this country.
10.	The Secretary of State has considered whether his legitimate aims can be achieved by means which would cause less interference to your client's rights.  He is satisfied that they cannot.  
11.	Your client should not profit by his unlawful travel to, and presence in, this country to the disadvantage of those who obtain the means to enter and remain in the UK lawfully.  Were the Secretary of State to permit persons in your client's situation to remain in the United Kingdom this would run contrary to his duty to Parliament to maintain a credible and effective immigration control.”
5.	Following the decision letter of 17 April 2002 the appellant’s wife made a detailed statement drawing attention to the difficulties the appellant would have in meeting the requirements for entry clearance and explaining why in practice she would be unable to accompany him were he returned to Germany.  She said that her mother was born on 1 January 1920 and was therefore 82 years of age.  She came to the United Kingdom in 1997 to join her daughter.  She was later given indefinite leave to remain in the UK.  The mother's health is not good.  She has recently had a hip replacement operation and is semi‑mobile and has to live on the ground floor.  She lives with the appellant's wife and is dependent upon her care.  The appellant’s wife is in receipt of income support and attendance allowance and she receives invalid care allowance for looking after her mother.  The appellant's wife is unable to work because she looks after her mother and her son.  They live in a two bedroom council accommodation.  The son also has a medical problem.  From birth he has had difficulty in urinating.  The doctor has advised that he requires an operation.  That operation was due to be held on 17 April 2002, but, because of the appellant's position on that date, the appointment could not be kept.  The appointment has been rescheduled for some time this year.  
6.	The appellant’s wife further says that she has a large number of relatives in the United Kingdom.  Two of her sisters are British citizens and live in London with their families.  She has a brother who has leave to remain in this country and a sister whose application for asylum is currently pending.  She has several other cousins and an aunt who are also settled in the United Kingdom.
7.	Having regard to that evidence, a statement was filed by Mr Taylor, a senior executive officer in the Immigration Service.  At paragraph 1 he says: 
“I can ... confirm that I have seen the statement submitted by the Appellant's wife after the decision was made in this case and carefully considered the contents of it.  It refers to matters, such as the dependency of the Appellant's mother in law on her daughter and medical difficulties with the child, which were not before the decision maker.  In the light of the new evidence relating to his wife's mother, the Defendant no longer advances the argument that Mrs Ekinci can accompany her husband to Germany to await the outcome of his entry clearance application but he is nevertheless entirely satisfied that the original decision was correct and should be maintained for the reasons set out in the decision letter.”
Later in his statement, Mr Taylor says at paragraphs 9 and 10:
“9.	The Defendant is satisfied, therefore, that at the time of his marriage on 10 May 2000 the Appellant was fully aware that he was entering into marriage when the prospect of his immigration status in this country being resolved in his favour was extremely uncertain.  
10.	As set out above, the express purpose of the Defendant's policy [that is a reference to a policy under which, in certain narrowly specified circumstances, asylum claims are considered substantively here even in safe third country cases] is to re‑unite members of an existing family unit who, by dint of circumstance, have become fragmented.  Equally, it has the effect and intention to maintain an existing family unit and not separate them.  Where the relationship did not exist prior to the person's arrival in the United Kingdom, the asylum application would be considered substantively in this country only in the most exceptionally compelling cases.  It was never the intention to permit persons who would otherwise be removable to a safe third country to circumvent the application of the law in their case by contracting a marriage within the United Kingdom.  Nor was it intended that such persons could, in effect, jump the pre‑entry clearance queue by contracting a marriage when they were not entitled to enter or reside lawfully in this country.  Were this to be the case, it would be to the detriment and disadvantage of those who do apply through proper channels for the required entry clearance and satisfy the requirements of the Immigration Rules.  It would also seriously undermine the effectiveness of immigration control to this country and act as an incentive to others to do likewise."  
Paragraph 16 says: 
“The Defendant accepts that the marriage between the Appellant and his wife is both genuine and subsisting, and that they have a child of the marriage.  The defendant attaches great weight to this.  However, the Appellant's relationship with his wife clearly does not satisfy the criteria set out in the Defendant's policy.  The Appellant entered into the marriage in the full knowledge that his asylum claim had been refused and that he was to be removed from this country."  
Paragraph 21 says:
"The Defendant submits that he has not misdirected himself in law.  He has considered the appellant's representations under Article 8 and balanced it against his duty to Parliament to maintain a credible and effective immigration policy, and his other public interest concerns, to which he of necessity attaches the greatest weight.  He is satisfied that any interference with the Appellant's right to respect for his private and family life which will occur as a consequence of his return to Germany is both proportionate and justifiable in all the circumstances of this case.  It is upon this basis, after carefully weighing all the issues, that he has satisfied himself that there is plainly nothing of substance in the human rights allegation and he is confident that the return of the Appellant to Germany would not place the United Kingdom in breach of its obligations under Article 8 of the ECHR.  In the Defendant's view it was open to him to reach this conclusion on the basis of all the material before him and the reasonableness of his conclusion is not impeachable on Wednesbury grounds."
Paragraph 28 says:
“In reaching his decision the Defendant also took into account that any interference with the appellant's Article 8 right to family life would exist only as long as it took him to satisfy the requirements for him to be issued with a visa which would entitle him to return lawfully to this country.  He could and should apply through the proper channels at any British overseas diplomatic post in the way that many thousands of people do ... The defendant accepted that the marriage was genuine and subsisting and his subsequent actions and considerations were predicated upon this premise.  However, as regards the potential difficulty the Appellant would have in meeting the requirements for entry clearance, it is not the business of the Defendant ... to form an opinion as to whether the Appellant would or would not meet the requirements for entry clearance.  That is properly a matter for the Entry Clearance Officer [“ECO”] at the British diplomatic post to which the Appellant makes his visa application.  However, without prejudice to the consideration of the Entry Clearance Officer, there would, on the face of it, appear to be no insuperable difficulties which the Appellant could not meet were he to make a visa application.  The Defendant is aware of several cases markedly similar to the Appellant's and, although it is not usual to retain the case file in Third Country Unit after removal has taken place, he is aware by way of indication, of three recent cases in which Appellants were removed to Belgium, Germany and France and successfully applied for the necessary entry clearances to enable them to return lawfully to the UK to resume their family lives.”
8.	It is convenient at this stage, before returning to the rival arguments, to set out the most directly relevant provisions of law applying on this appeal.
9.	Section 65 of the 1999 Act so far as material provides:
“(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, acted in breach of his human rights may appeal to an adjudicator against that decision …
(2)	For the purposes of this Part, 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.”
10.	Section 6(1) of the Human Rights Act 1998 provides:
“It is unlawful for a public authority to act in any way which in incompatible with a Convention right.”
11.	Article 8 of ECHR states:
“(1)	Everyone has the right to respect for his private and family life, his home and his correspondence.
(2)	There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being 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.”
12.	Section 72(2) of the 1999 Act provides so far as material:
“A person who has been, or is to be, sent to a member State … is not, while he is in the United Kingdom, entitled to appeal (a) under section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights is manifestly unfounded ….”
13.	The approach to s72(2)(a) of the 1999 Act has now been authoritatively laid down by the House of Lords in Thangarasa -v- Secretary of State for the Home Department [2002] 3 WLR 1276.  Lord Bingham at paragraph 14 held that “the Home Secretary is entitled to certify if, after reviewing [the] material, he is reasonably and conscientiously satisfied that the allegation must clearly fail”.  Lord Hope said at paragraph 34 that:  “The question to which the Secretary of State has to address his mind under section 72(2)(a) is whether the allegation is so clearly without substance that the appeal would be bound to fail”.  Lord Hutton at paragraph 72 said that “an allegation is manifestly unfounded if it is plain that there is nothing of substance in the allegation.”
14.	Finally I should set out rules 281 and 6A of the relevant Immigration Rules, HC 395:
“281.	The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
(i)	the applicant is married to a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement;  and
(ii)	the parties to the marriage have met;  and
(iii)	each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting;  and
(iv)	there will be adequate accommodation for the parties and any dependents without recourse to public funds in accommodation which they own or occupy exclusively;  and
(v)	the parties will be able to maintain themselves and any dependents adequately without recourse to public funds;  and
(vi)	the applicant holds a valid United Kingdom entry clearance for entry in this capacity.”
“6A	For the purpose of these Rules, a person is not to be regarded as having (or potentially having) recourse to public funds merely because he is (or will be) reliant in whole or in part on public funds provided to his sponsor, unless, as a result of his presence in the United Kingdom the sponsor is (or would be) entitled to increased or additional public funds.”
15.	At the heart of Mr Jacobs’ argument for the appellant is the contention that it would be wrong to return him to Germany and require him to apply for entry clearance there because he would in any event fail to qualify.  Detailed expert evidence has been adduced on his behalf suggesting that whilst he remains here his wife is entitled to benefits totalling £165.20 whereas on his return to Germany her entitlement would be reduced to £134.  Thus it is said that he would fail to satisfy rule 281(v):  his return to England would involve “recourse to public funds” because under rule 6A, his wife as sponsor “would be entitled to increased or additional public funds”.  If that be right, submits Mr Jacobs, the Secretary of State cannot justify his decision reached, as it was, on the basis that the appellant must be prevented from jumping the entry clearance queue.  Such a justification implies that on reaching the front of the queue the appellant would be granted entry clearance whereas in fact he would not.  In short, Mr Jacobs argues, the Secretary of State’s decision depends upon their being a real queue for the appellant to join and here there is not.
16.	The Secretary of State’s response is twofold.  First he disputes the correctness of the appellant’s assertion that he would indeed fail to qualify under the rules.  There appear, he suggests, “no insuperable difficulties which the appellant could not meet were he to make a visa application” - see paragraph 28 of Mr Taylor’s statement (set out in paragraph 7 above) and, indeed, paragraphs 6 and 8 of his original decision letter (set out in paragraph 4 above).  It may be, for example, that the appellant’s wife or one of her friends or relations here could secure employment for the appellant to take up immediately upon his return.  Secondly, however, and to my mind more fundamentally, the Secretary of State submits that whether or not the appellant will qualify for entry clearance is presently immaterial:  it should be decided not now but when he comes to apply.  Even if strictly he fails to qualify so that the ECO would be prohibited from granting leave to enter, given the obvious article 8 dimension to the case the ECO would refer the application to an immigration officer who undoubtedly has a discretion to admit someone outside the rules.  undoubtedly has a discretion to admit someone outside the rules.  And if entry were to be refused at that stage, then indeed a s59 right of appeal would certainly arise in which, by virtue of s65(3), (4) and (5), the Adjudicator would have jurisdiction to consider the Appellant’s human rights
17.	In my judgment this second argument is unanswerable.  It would be a bizarre and unsatisfactory result if, the less able the applicant is to satisfy the full requirements for entry clearance, the more readily he should be excused the need to apply.  The time presently being taken to process entry clearance applications in Germany is, we are told, something under a month.  When granting permission to appeal, Sedley LJ said of this appellant’s immigration history that “few claimants come to court with a track record of such prolonged evasion and mendacity”.  True it is, as Sedley LJ also observed, that “the protection of one’s human rights is not a reward for virtue and the withholding or dilution of them is not a penalty for vice”, but that is not to say that a person’s immigration history is an irrelevant consideration when striking the balance between his article 8 rights and the countervailing public interest in maintaining effective immigration control.  To my mind it is entirely understandable that the Secretary of State should require the appellant to return to Germany so as to discourage others from circumventing the entry clearance system.  One authority which Mr Jacobs put before us was this court’s decision in Shala -v- Secretary of State for the Home Department [2003] EWCA Civ 233.  In giving the leading judgment there Keene LJ said at paragraph 10:
“It is important that those without leave to enter or remain should not be able to exploit the procedures so as to be able to prolong their stay in the United Kingdom by making in-country applications for such leave.  As Mahmood [R (Mahmood) -v- Secretary of State for the Home Department [2001] 1WLR 840] shows, even with a subsisting marriage, a person only here on temporary admission will be required to return home to seek entry clearance, unless there are exceptional circumstances.”
18.	In Shala exceptional circumstances were indeed established:  had the applicant’s asylum application been dealt with reasonably efficiently he would probably have obtained leave to remain as a Kosovan refugee and so would have been entitled to apply in-country for a variation of that leave on the grounds of his marriage.  No such exceptional feature exists here however.
19.	In short, I see nothing even arguably disproportionate in requiring this appellant to return to Germany for the relatively short space of time that will elapse before he is then able to have his entry clearance application properly determined, if necessary outside the strict rules.  That the Secretary of State is not contemplating or intending any longer-term, let alone permanent, separation of the appellant from his family seems to me abundantly plain from the terms of his decision letter and the passages from Mr Taylor’s statement to which I have already referred.
20.	In these circumstances I have reached the clear conclusion that the Secretary of State was entitled not merely to direct the appellant’s return to Germany but also to certify his allegation that article 8 was thereby infringed as manifestly unfounded.  He was entitled to be “reasonably and conscientiously satisfied that the allegation must clearly fail” (Lord Bingham);  that any “appeal would be bound to fail” (Lord Hope);  that plainly “there is nothing of substance in the allegation”.
21.	I would dismiss this appeal.
Lord Justice Kay:
22.	I agree.
Mr Justice Bodey:
23.	I also agree.
Order:  Appeal dismissed.  No order for costs save for detailed assessment of claimant’s costs to be paid out of Community Legal Services Fund.
(Order does not form part of the approved judgment)