COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THOMAS
SIR PETER GIBSON
| AB (JAMAICA)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr P Patel (instructed by the Treasury Solicitors) for the Respondent
Hearing date: Tuesday 23 October 2007
Crown Copyright ©
Lord Justice Sedley :
Convention rights and departmental policies
RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
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.
2. Paragraph 364 of the Immigration Rules explain that deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained here without authority but that all the known relevant factors must be taken into account before a decision is reached. These include:
(ii) length of residence in the United Kingdom;
(iii) strength of connection with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence;
(vii) compassionate circumstance;
(viii) any representations.
3. Where persons do not qualify for leave to remain under the Immigration Rules and are to be considered for deportation, or where they are illegal entrants liable to removal, but seek nevertheless to remain on the basis of marriage in the United Kingdom, the following paragraphs of this guidance apply.
4. Where enforcement action is under consideration and the offender is married to someone settled here a judgment will need to be reached on the weight to be attached to the marriage as a compassionate factor. Caseworkers should bear in mind that paragraph 284 of the Immigration Rules, which sets out the requirements to be met for an extension of stay as spouse of a person present and settled in the United Kingdom, specifically requires, among other things, a person to have a limited leave to remain here and to have not remained here in breach of the immigration laws, in order to obtain leave to remain on that basis. Therefore, the fact that an offender is married to a person settled here does not give him/her any right to remain under the Rules.
Marriages that pre—date enforcement action
5. As a general rule, deportation action under 3(5)(a) or (3)(5)(b) (in non-criminal cases) or illegal entry action should not normally be initiated in the following circumstances (but see notes below):
(a) where the subject has a genuine and subsisting marriage with someone settled here and the couple have lived together in this country continuously since their marriage for at least 2 years before the commencement of enforcement action;
(b) it is unreasonable to expect the settled spouse to accompany his/her spouse on removal.
(i) In this instruction, "settled" refers to British citizens who live in the United Kingdom or to other nationals who have ILE or ILR here.
(ii) In considering whether or not, under paragraph 5(b) above, it would be unreasonable for a settled spouse to accompany the subject of enforcement action on removal the onus rests with the settled spouse to make out a case with supporting evidence as to why it is unreasonable for him/her to live outside the United Kingdom. Factors which caseworkers should take into account, if they are made known to them, will include whether the United Kingdom settled spouse:
(a) has very strong and close family ties in the United Kingdom such as older children from a previous relationship that form part of the family unit; or
(b) has been settled and living in the United Kingdom for at least the preceding 10 years; or
(c) suffers from ill-health and medical evidence conclusively shows that his/her life would be significantly impaired or endangered if he/she were to accompany his/her spouse on removal.
(v) This notice contains guidance as to the approach to be adopted in the generality of cases but it must be remembered that each case is to be decided on its individual merits and, for instance, a particularly poor immigration history may warrant the offender's enforced departure from the UK notwithstanding the factors referred to above.
6. In cases where someone liable to immigration control has family ties here which would normally benefit his/her under paragraph 4 above but has criminal convictions, the severity of the offence should be balanced against the strength of the family ties. Serious crime which are punishable with imprisonment or a series of lesser crimes which show a propensity to re-offend, would normally outweigh the family ties. A very poor immigration history may also be taken into account. Caseworkers must use their judgment to decide what is reasonable in any individual case.
7. The presence of children with the right of abode in the UK (see note below) is a factor to be taken into account. In cases involving children who have the right of abode, the crucial question is whether it is reasonable for the child to accompany his/her parents abroad. Factors to be considered include:
(a) the age of the child (in most cases a child of 10 or younger could reasonably be expected to adapt to life abroad);
(b) serious ill-health for which treatment is not available in the country to which the family is going.
Marriages that post-date enforcement action
8. Where a person marries after the commencement of enforcement action removal should normally be enforced. The criteria set out in paragraph 5 do not apply in such cases. ….
The present case
Thank you for your letter of 13 July 2004. Your client's previous representatives, Messrs Dacres & Co submitted an application on behalf of your client who is seeking to remain in the United Kingdom on the basis of her marriage to Loron Samuel Brown which took place on 25 July 2001.
This application has not been considered by the Secretary of State personally, but by an official acting on his behalf.
As you know, your client and her dependents are considered to have remained in the United Kingdom unlawfully, and have now been served with form IS151A, notice to a person subject to administrative removal. This notice advises your client/s of their liability to detention and summary removal from the United Kingdom under immigration legislation.
I have carefully considered whether it would be right to allow your client to remain but having considered all the circumstances of your client's particular case it is concluded that there are insufficient compassionate circumstances to justify a concession on the grounds of the marriage. It is considered that it would be reasonable to expect both parties to have been aware that your client's precarious immigration status was such that the persistence of their marriage within the United Kingdom would, from the outset, be uncertain. Moreover, although your client's spouse is a British citizen, we believe that Mr Brown and your client could reasonably be expected to live in Jamaica.
Your client's dependent children who arrived in the United Kingdom on 27 June 1999 are considered to have spent their formative years in Jamaica and would also be expected to adapt to life on return. Although your client's child's material quality of life in Jamaica may not be to the same standard as it would be in the United Kingdom, this is the case with many children brought up in other countries and is not considered a sufficiently compelling factor.
In these circumstances we are not persuaded that the position of your client's family constitutes a sufficiently compelling reason for making her an exception to the normal practice of removing those who have remained in the United Kingdom illegally.
We have also had regard to Article 8 of the ECHR, and would reject any claim that removing your client to Jamaica will amount to a breach of this article. Article 8 dose not extend to a general obligation on the United Kingdom to respect the choice by married couples of a country of their matrimonial residence and to accept non-national spouses for settlement in the United Kingdom. Your client is to be removed from the United Kingdom with her dependants. Her spouse, Mr Brown is free to accompany her, at public expense if necessary, should this be their wish. For the reasons given above, it is our view that it would be reasonable for her spouse to accompany your client. In these circumstances there would be no interference with your client's family life. Equally he can remain in the United Kingdom and support any application she makes abroad to return in the proper manner as the spouse of a person settled here.
Whilst we accept that during your client's time in the United Kingdom she may have established a private life, we are of the view that any interference can be justified in the circumstances of your client's case. The State has the right to control the entry of non-nationals into its territory, and Article 8 does not mean that an individual can choose where he/she wishes to enjoy his/her private life. Moreover, your client's private life has been established whilst she has been in this country unlawfully, in the knowledge that she has no right to be here and may be removed at any time. For all these reasons, it is our view that any interference with your client's family and/ or private life, is necessary and proportionate to the wider interest of the maintenance of an effective immigration policy.
In reaching this decision we have balanced your client's rights against the wider rights and freedom of others and the general public interest. Specifically, we have weighed up the extent of the possible interference with your client's private/ family life, against the legitimate need to maintain an effectual national immigration policy. With respect to the latter consideration your client's failure to observe the immigration regulations has been taken into account. In the light of the circumstances of your client's particular case, it is considered that our actions are proportionate to the social need being fulfilled. We do not therefore accept that the decision to proceed with your client's removal from the United Kingdom would breach Article 8.
Careful consideration has been given as to whether your client/s should qualify for Discretionary Leave in the United Kingdom but your client has not raised any issues which would give rise to such a grant of leave.
Your client has now been served with form IS 151A informing your client of her immigration status and liability to detention and removal. Your client's application for leave to remain on the basis of marriage is refused and a decision has been made to remove her from the United Kingdom by way of directions under section 10(1)(a), (b) or (c) of the Immigration and Asylum Act 1999 (c.33) (removal of person unlawfully in the United Kingdom). Your client may appeal against the decision to remove her under Section 82 of the Nationality, Immigration and Asylum Act 2002 on the basis of one or more of the grounds of appeal contained within the attached IS 151B, Notice of Decision. Your client/s are entitled to remain in the United Kingdom whilst the appeal is pending.
"In Huang the Court of Appeal reviewed earlier decisions and held that it is for the Adjudicator to see to the protection of individual fundamental rights which is the territory of the courts. Policy on the other hand is the particular territory of the elected powers in the state. Moreover the Human Rights Act and the appeals provisions 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 in its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules."
He went on to assert that the burden of proof is on the appellant.
9. My evaluation of the evidence and findings of fact
9.1 This appellant is a citizen of Jamaica as are her daughters. At the date of the hearing she was aged 38. Her daughters were aged 16 and 13. I found the appellant a credible witness when giving evidence. I can find no evidence or basis upon which the criticisms levelled at the appellant and the suspicion that she had been working wholly unjustified. Ms Chapman conceded that there was no basis upon which that criticism could be made.
9.2 I heard evidence from the appellant and from her husband Loron Samuel Brown. The parties were married on 25 July 2001. The appellant did not work. Loron Brown was a British citizen. He was born on 19 June 1963. I found that the parties had established family life from the date of marriage. This included the appellant, her husband and her two daughters.
9.3 I found that the appellant was an overstayer; her leave to remain was granted for six months on a visit visa. Her two daughters similarly had overstayed. I found there was merit in the comment made in the refusal letter but at the time of the marriage both the appellant and her husband knew that the appellant had no legitimate right to remain in the United Kingdom and that she was liable to removal at any time. I found that feature was a relevant consideration in deciding whether removal would be a disproportionate interference with the parties' family and private life.
9.4 The appellant did not work. Her husband was employed by BP Express Shopping. He produced payslips in conformation.
9.5 I had evidence presented to me that the appellant's daughters were attending schools, Amanda the John Ruskin College and Monique the Catford Girls School. Monique had written a letter in support of the appeal. I considered carefully the impact of removal on the education of the children. There is schooling provision in Jamaica available for these girls of which they could take advantage. There was no evidence that they had exceptional educational needs.
9.6 There was no evidence presented to me that any of the parties to the appeal suffered from any ill health, mental or physical which gave cause for special consideration in that regard. The appellant said she was suffering from a skin condition upon her right leg for which she was receiving treatment. I did not consider that there was any relevant matter for consideration in this regard in respect of this appeal.
9.7 The question arises as to whether there are truly exceptional circumstances applying to this appellant and her daughters justifying the granting of the appeal to the point where I am satisfied that there will be a disproportionate interference with her family life if she and her daughters were returned to Jamaica. Following the questions in ex parte Razgar clearly removal to Jamaica would be an interference with the exercise of the appellant's right to respect for her private and family life. She has been in the UK since 1997 – a period of nearly eight years. She had married Loron Brown in 2001. The marriage was therefore of nearly four years' duration.
9.8 On the other hand there was no evidence that the appellant was living and working in an environment which was exceptional. She was not in a key position vis-á- vis any individual or organisation. To remove the appellant to Jamaica would mean that she would possibly lose the immediate contact with her husband. Removal may put a strain on the appellants' family and private life and arrangements but I do not find that there would be a strain to the point of the extreme.
9.9 Following the decided cases from the Courts giving guidance to Adjudicators I am satisfied that there is no truly exceptional circumstances applying to this appeal. It would be open to the appellant to apply for entry clearance on return to Jamaica in the same way others are. I find that such interference would be necessary in a democratic society being lawful within an immigration policy and envisaged within Article 8 provisions.
9.10 The point was made by the respondent in the refusal letter that it would not be unreasonable to expect the appellant's husband to travel with the appellant and take up life in Jamaica. That is an option which is available to this married couple and would be a viable one for them to consider for themselves. He was able bodied and was employed in the UK. There is no reason to believe that he would not be able to find employment in Jamaica if that was his wish.
9.11 On a total appraisal of the evidence I was satisfied that the interference in returning the appellant to Jamaica was proportionate to legitimate and public aims sought to be achieved by the legislation for immigration control. There would be no breach of their rights under Article 8.
9.12 For these reasons I reject the appellant's appeal under the human Rights Act.
"…. Even if it had been for the immigration judge to consider, no complaint could be made by the appellant about the way in which he did so: as we have already said, he accepted her evidence, and Mr Brown's: but, having done so, he went on to consider for himself at § 9.10 the question of whether it would be reasonable to expect him to go to Jamaica with her, and (though he does not say so in as many words) clearly to find that it would."
"….It is…. important, given the immense significance of the decisions they have to make, that decision-makers should have some guidance on the approach to reasonableness and undue harshness in this context. Valuable guidance is found in the UNHCR Guidelines on International Protection of 23 July 2003. In paragraph 7 II(a) the reasonableness analysis is approached by asking "Can the claimant, in the context of the country concerned, lead a relatively normal life without facing undue hardship?" and the comment is made: "If not, it would not be reasonable to expect the person to move there". In development of this analysis the guidelines address respect for human rights in paragraph 28:
"Respect for human rights
Where respect for basic human rights standards, including in particular non-derogable rights, is clearly problematic, the proposed area cannot be considered a reasonable alternative. This does not mean that the deprivation of any civil, political or socio-economic human right in the proposed area will disqualify it from being an internal flight or relocation alternative. Rather, it requires, from a practical perspective, an assessment of whether the rights that will not be respected or protected are fundamental to the individual, such that the deprivation of those rights would be sufficiently harmful to render the area an unreasonable alternative."
They then address economic survival in paragraphs 29-30:
The socio-economic conditions in the proposed area will be relevant in this part of the analysis. If the situation is such that the claimant will be unable to earn a living or to access accommodation, or where medical care cannot be provided or is clearly inadequate, the area may not be a reasonable alternative. It would be unreasonable, including from a human rights perspective, to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence. At the other end of the spectrum, a simple lowering of living standards or worsening of economic status may not be sufficient to reject a proposed area as unreasonable. Conditions in the area must be such that a relatively normal life can be led in the context of the country concerned. If, for instance, an individual would be without family links and unable to benefit from an informal social safety net, relocation may not be reasonable, unless the person would otherwise be able to sustain a relatively normal life at more than just a minimum subsistence level.
If the person would be denied access to land, resources and protection in the proposed area because he or she does not belong to the dominant clan, tribe, ethnic, religious and/or cultural group, relocation there would not be reasonable. For example, in many parts of Africa, Asia and elsewhere, common ethnic, tribal, religious and/or cultural factors enable access to land, resources and protection. In such situations, it would not be reasonable to expect someone who does not belong to the dominant group, to take up residence there. A person should also not be required to relocate to areas, such as the slums of an urban area, where they would be required to live in conditions of severe hardship."
These guidelines are, I think, helpful, concentrating attention as they do on the standards prevailing generally in the country of nationality. Helpful also is a passage on socio-economic factors in Storey, op cit, p 516 (footnotes omitted):
"Bearing in mind the frequency with which decision-makers suspect certain asylum seekers to be simply economic migrants, it is useful to examine the relevance to IFA claims of socio-economic factors. Again, terminology differs widely, but there seems to be broad agreement that if life for the individual claimant in an IFA would involve economic annihilation, utter destitution or existence below a bare subsistence level (Existenzminimum) or deny 'decent means of subsistence' that would be unreasonable. On the other end of the spectrum a simple lowering of living standards or worsening of economic status would not. What must be shown to be lacking is the real possibility to survive economically, given the particular circumstances of the individual concerned (language, knowledge, education, skills, previous stay or employment there, local ties, sex, civil status, age and life experience, family responsibilities, health; available or realisable assets, and so forth). Moreover, in the context of return, the possibility of avoidance of destitution by means of financial assistance from abroad, whether from relatives, friends or even governmental or non-governmental sources, cannot be excluded."
Failure to address the correct issues
Substituting exceptionality for proportionality
The policy and the Convention
Lord Justice Thomas:
Sir Peter Gibson: