IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
MMIGRATION APPEAL TRIBUNAL
B e f o r e :
LORD JUSTICE JONATHAN PARKER
LORD JUSTICE LLOYD
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant/Respondent|
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MR STEVEN KOVATS (instructed by Treasury Solicitor) appeared on behalf of the Respondent
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LORD JUSTICE AULD:
"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, for 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 freedom of others."
It is trite law that rights under the ECHR are to be secured in a manner that is practical and effective, rather than theoretical or illusory.
"The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse of a refugee are that:
(i) the applicant is married to a person granted asylum in the United Kingdom; and
(ii) the marriage did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum; and
(iii) the applicant would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and
(iv) each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting; and
(v) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity."
There is thus (owing to para 352A(ii)) no provision in the Immigration Rules for the admission of the spouse of a refugee where the marriage takes place after the refugee's flight from his or her home country.
"14. It is accepted that conditions in Zimbabwe have deteriorated in recent months and there were reports in December 2001 that some failed asylum seekers have faced difficulties on their return to Zimbabwe. While there was no evidence that returnees were being systematically detained for questioning or subjected to ill treatment, the Secretary of State was not satisfied, on the information then available, that unsuccessful asylum seekers could safely be returned to Zimbabwe. On 15th January 2002 the Secretary of State therefore decided to suspend removals of failed asylum seekers to the outcome of any appeal to the independent appellate authorities, be removed to Zimbabwe as soon as the Secretary of State is satisfied that it is safe to do so."
"The suspension of removals of failed asylum seekers to Zimbabwe announced in January 2002 was in response to concerns about the serious deterioration in the situation in Zimbabwe in the build-up to the presidential election held in March that year. We did not, at that time, regard it as unsafe to return failed asylum seekers to Zimbabwe, but in view of the rapidly changing conditions we considered that it would be appropriate not to enforce returns.
The Government's position is, as it has been since January 2002, that each asylum (and human [rights] claim made by a Zimbabwean national will be considered on its individual merits in accordance with our ..... [convention obligations]. Each application is considered against the background of the latest available country information including that obtained from and through the Foreign and Commonwealth Office ..... "
"(1) A state has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations.
(2) Article 8 does not impose on a state any general obligation to respect the choice of residence of a married couple.
(3) Removal or exclusion of one member from a state where other members of the family are lawfully resident will not necessarily infringe article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family.
(4) Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a state if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled.
(5) Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates article 8.
(6) Whether interference with family rights is justified in the interests of controlling immigration will depend on (i) the facts of the particular case and (ii) the circumstances prevailing in the state whose action is impugned."
"Mr Wong [counsel for Ms Chikwamba then] ..... acknowledged the proper weight to be given to the need to maintain immigration control as decided by the Immigration Appeal Tribunal in ..... Croatia ..... In that case the Tribunal decided that it should normally be held that a decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances, Elsewhere in ..... [Croatia] the Tribunal referred to the fact that the public interest in maintaining immigration control will usually be 'a very weighty consideration indeed'."
"59 ..... The true position in our judgment is that the Human Rights Act 1998 and section 65 (1) require the adjudicator to allow an appeal against removal or deportation brought on article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules.
60 In such a case the adjudicator is not ignoring or overriding the Rules. On the contrary it is a signal feature of his task that he is bound to respect the balance between public interest and private right struck by the Rules with Parliament's approval. That is why he is only entitled on article 8 grounds to favour an appellant outside the Rules where the case is truly exceptional. This, not Wednesbury or any revision of Wednesbury, represents the real restriction which the law imposes on the scope of judgment allowed to the adjudicator. it is not a question of his deferring to the Secretary of State's judgment of proportionality in the individual case. The adjudicator's decision of the question whether the case is truly exceptional is entirely his own. He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances. In our respectful view such an approach is also reflected in Lord Bingham's words in R (Razgar) v Secretary of State for the Home Department  2 AC 368, para 320 ..... " .
That reasoning, as I have already indicated, applied also to the IAT, where, as here, its jurisdiction on appeal remained at large and was not confined to points of law only.
"Our conclusion is that it would not be disproportionate to require the appellant in this case to return, possibly accompanied by her child ..... in order to apply for admission as a spouse under paragraph 281 of HC 395."
Submissions and Conclusions
"15 ..... there is no reason to think her asylum claim having been rejected that the appellant will suffer any human rights abuses. The adjudicator dismissed her asylum and Article 3 claim because he found she had no well founded fear of persecution in Zimbabwe and there was no real reason to believe that she would encounter risk of torture or inhuman and degrading treatment. Moreover the appellant has other relatives in Harare including two children by a previous relationship now aged 7 and 3 who, according to the appellant's own answers in interview, reside in the same place. Whilst it may be true that human rights abuses occur in Zimbabwe, there is no particular reason to believe in this case that the appellant will suffer such abuse."
"17 We do not attach very much weight to this point which we do not think is comparable to the position in a case such as Shala [Shala v SSHD  EWCA Civ 233] where an appellant had a legitimate belief that he would benefit from a policy granting either temporary or permanent leave at the time he arrived in the United Kingdom to make his asylum claim thus justifying an 'in country' application."
"20 We readily accept that a refugee in the United Kingdom is entitled to respect for his own family life and equally a spouse of such a person is entitled to the same respect. We cannot see, however, that these rights differ in any material way from the respect due to a spouse of a British citizen or any other person resident in the United Kingdom with indefinite leave. The rights of all are now protected by Article 8 of the ECHR as enshrined in English law. In the case of a foreign national who marries a British citizen in the United Kingdom, in the absence of exceptional circumstances, that person will be required to return to their own country to apply for leave to enter as a spouse. We cannot see the case for distinguishing the spouse of a British citizen, and the appellant in this case, who has married a refugee with a right to remain in the United Kingdom."
"it is simply unfair that he [or she] should not have to wait in the queue like everyone else."
Or, as Simon Brown LJ in Ekinci, a case of a Turkish asylum seeker who had entered this country via Germany, put it at paragraph 17:
"17 ..... 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 ..... 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 ..... "
"The CIO are not primarily responsible for immigration services at Harare Airport, but they do however have a presence there. The evidence we have seen makes it clear that when planes from the United Kingdom arrive at Harare members of the CIO are present in great numbers. Although there was some suggestion in the evidence before us that the Zimbabwean authorities treated arrivals from other white Anglophile countries, the United States of America, Australia and New Zealand for example, with similar suspicion, it is in our view clear that the CIO take a particular interest in arrivals from the United Kingdom."
The paragraph goes on, and I emphasise the following sentence:
"Nevertheless it appears to be the case that ordinary travel to and from the United Kingdom, including voluntary departures by those who had dealings with the immigration authorities of this country, are dealt with in the usual way by immigration officers, not the CIO at the airport in Harare."
That is the central finding of the IAT in that case, which I summarised earlier, to the effect that, while forced returns may subject those returned to a risk of Article 3 or Article 8 human rights abuses, voluntary returns are not subject to the same risk.
"First, in relation to the evidence we have heard, it is possible that we might have taken a different view"
that is to say, in relation to involuntary returns
"if the government had made any arrangements to ensure so far as possible that those returned voluntarily and those returned involuntarily are not readily distinguishable on arrival. Part of the risk we have identified arise from the government's apparent disinterest in the precise way in which passengers' documents are dealt with by airline staff. It is also possible that we might have taken a different view if there had been evidence ..... that substantial numbers of failed asylum seekers returned involuntarily from the United Kingdom passed through Harare Airport without any problems. If the government is concerned to avoid risk to individuals in making policy decisions based on fact, it will no doubt carefully monitor returns to any country regarded as dangerous and will present resulting facts as evidence in asylum appeals."
The IAT in that paragraph, as throughout its determination of the appeal, was concerned with involuntary returns to Zimbabwe, not, as remains a possibility here, voluntary return.
Order: Appeal dismissed with the appellant's costs subject to detailed assessment. Permission to appeal was refused.