COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
THE RT HON. LORD JUSTICE NEUBERGER
LORD JUSTICE GAGE
| SB (Bangladesh)
|- and -
|Secretary of State for the Home Department
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Nicola Greaney (instructed by Treasury Solicitor) for the respondent
Crown Copyright ©
Lord Justice Ward:
"Dexter Montague and Partners has applied on your behalf for indefinite leave to remain in the United Kingdom as a dependant of your son Ruhul Ambia but you are under 65 and in view of the fact that on 9th March 2001 you informed the Entry Clearance Officer that you have children living in Bangladesh and you have income from farming and a son's business the Secretary of State is not satisfied that you are financially wholly or mainly dependent on your son in the United Kingdom, or that you would be living alone in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom."
The applicant appealed that decision and, with an irrelevant detour here and there, the appeal process had landed up in this Court. She and the family have, of course, remained here without interruption.
"53. We find that Nureha is at university, and about to take her final examinations. It is a great shame for her that her course has been moved from a site near to her home, requiring her to spend and hour-and-a-half travelling each way each day. We accept this has limited the amount of time she has been able to spend at home.
54. We also accept the evidence relating to Ruhul Ebrahim's schooling. His teacher is Mr Hilmi. In a letter dated 6 January 2005, he describes Ruhul as a very quiet and sensitive individual, who has developed learning very slowly because of his English language. He attends classes for extra support and 1:1 tutorials on a regular basis. He has had some behavioural problems, but this was deemed to be low-risk because of lack of understanding of the lesson and self-confidence. Mr Hilmi says that Ruhul's unsettled background has affected his education, learning and general behaviour in school. Further disruptions will affect his learning and education. We accept Mr Hilmi's evidence. We also note and accept the Year 9 progress reports submitted by his tutors (mid-2003 to spring 2004) which generally speak highly of Ruhul, but from which it is clear that he has some behavioural problems and learning difficulties.
61. We have no doubt that the effect of the appellant's removal on this family would be significant. Our primary concern is the effect on Ruhul Ebrahim. He is still a minor and has been shown in the past to have suffered significantly when removed from his mother's care. He is more settled here now and improving at school. He now has a settled roof over his head with Nureha, and his older sister Fateha lives just ten minutes' walk away. Interestingly, it was the appellant's oral evidence that she thought Nureha would be more badly affected by her removal than would Ruhul. We do consider, however, that his progress is likely to be disrupted again were his mother to be removed. He has now been here 4 ½ years, and in the three years before that was brought to the United Kingdom, sent back to Bangladesh and then returned here. We do not consider that it would be reasonable to expect him to leave the United Kingdom to go to live with his mother in Bangladesh, if he did not wish to do so.
62. Nureha is now 22. She will shortly finish university. She can be considered an independent adult now. Whilst it has plainly been a great advantage to her to have her mother look after the home, freeing her up to go to university and engage fully in her studies and social life, it could not be said that it is not unreasonable to expect her now to be self-sufficient. However we are concerned at the effect on her of carrying the responsibility for Ruhul until his majority and beyond. She has carried great responsibility for him since he first came here. We also bear in mind that Nureha has lived here since 1993, therefore for over twelve years, that all the children are British citizens, and that they did not make the choice to come to the United Kingdom – their father made it for them."
"43. In assessing the rest of family's evidence, we have been aware that the appellant has been prepared to lie – quite comprehensively – to secure entry to the United Kingdom, and that her children are all very anxious that she should stay here. It is quite clear that, because she was a polygamous second wife, she was the only one of her late husband's two wives and twelve children who was unable to obtain a certificate of entitlement of a right to reside here and that it was because of that that she was originally left behind in Bangladesh when the last of the children, Ruhul Ebrahim, came here in 1998. We accept that he returned nine months or so later to live with his mother again because he missed her, but find that to all intents and purposes this appellant was estranged from her family by legal circumstance, and that it was the family's intention that they be reunited. We accept her explanation that she lied to the Entry Clearance Officer having been told to do so by her husband, who told her what to say. Having listened to and observed her give evidence at the hearing, we have formed the clear view that we cannot, without more, rely on what she now says about her circumstances with any degree of confidence. We find that in all probability, she had no intention of returning to Bangladesh once she left in May 2001. Ruhul Ebrahim was put into school immediately they arrived here and the rest of her family were here. We find that the appellant's entry to the country and subsequent applications have been a blatant attempt to circumvent the Immigration Rules."
They found there were material inconsistencies and exaggerations in the evidence presented to them and considered that the applicant had either exaggerated the degree of responsibility she has had for the children or the extent of the difficulties they experienced at their stepmother's home. They considered she had also exaggerated the extreme poverty in which she said her sisters and brothers were living in Bangladesh and about the extent of the financial support the English family were providing for them. They found:
"48. … They [the applicant's Bangladesh siblings] are likely to be poor by United Kingdom standards, but there is no reliable evidence that they live at a level below the average citizens of Bangladesh. We accept that they probably will not be in a position to assist her financially, but find that she does not need them to do so. It is conceded in the appellant' skeleton argument that financial support from the United Kingdom would continue were she in Bangladesh. A number of the appellant's children speak about their mother's siblings, and we find there is evidence of ongoing contact between the two branches of the family. We find that they would be in a position to offer moral and emotional support to the appellant in Bangladesh."
"51. …. accept that if the property has not been inhabited for 4 ½ years (and we make no express finding in relation to this) it is likely now to be run down and in need of renovation. If this is so, we accept that it will take some time to render it suitable for habitation again.
52. We are concerned that all the family deny there was any land with the house. The house is in a village, and from what the children have said about its supposedly now being occupied by cows, calves and chickens, it sounds as though the area is agricultural to some extent: indeed it would be surprising if it were not. It would be surprising if the family did not have land to live off. Subletting of land could yield income. We do not, however, consider findings on these points necessary to our decision."
"19. Ms Naik drew our attention to the legal context in which, she said, the Article 8 claim should be placed. She said that the appellant would have been entitled to come to the United Kingdom as the wife of a British citizen until a change in the law in 1998, under the then s. 2(2) of the Immigration Act 1971. All the children are British citizens by descent and have established their lives here. The family is wholly established in the United Kingdom. In addition, the appellant almost qualified for leave to remain in the United Kingdom under the provisions of paragraph 248A of the Rules, which provides the requirements for leave to remain in the United Kingdom for those exercising rights of access to a child resident here. The only way in which she did not meet the Rule was that she was not a holder of limited leave to remain as the spouse or unmarried partner of a person present and settled here. Her being granted the right to remain was, nonetheless, within the spirit of the Immigration Rules."
The Tribunal's decision
"55. We consider the respondent right to have refused the application under the Rules. At the date of decision, the appellant was not living alone in the most exceptional compassionate circumstances (or if she had been in Bangladesh would not have been so.). She had been living alone for some years (she described it as 15, though it is clear that she had children with her for most of that time). In her statement she says that when Ruhul Ebrahim first came to the UK in 1998 she was left on her own. She knew that her children's future lay here and she was happy with the decisions made by her late husband regarding them. She gives no evidence as having then been living in either exceptional or compassionate circumstances, and we do not consider the situation had changed by early 2003. The appellant was housed, had ongoing contact with her children, and had family in Bangladesh.
56. We consider it eminently possible, in addition, that she was to a large extent reliant financially on income generate from land belonging to the property and subsistence farming. We have not received satisfactory evidence as to the appellant's financial circumstances when she was living alone in Bangladesh, and are unable to make a positive finding that she was mainly dependent financially on relatives settled in the United Kingdom, as also required under Rule 317(i)(e). For the same reason, we do not consider that the appellant has shown that she meets the requirements of paragraph 317(iii).
57. In the circumstances, her appeal under the Immigration Rules cannot succeed."
"58. The respondent has conceded that the appellant has both private and family life in the United Kingdom. We find that she has family life with Ruhul Ebrahim, who is still a minor, and by reason of her ongoing dependency, with Nureha. We find that she has a private life with other members of her family, of both generations.
59. We find that the appellant's removal from the United Kingdom would interfere with her family and private life, and that such interference would have consequences of such gravity as potentially to engage the operation of Article 8. Such interference would be lawful, and we find would be necessary in a democratic society for the purpose of maintaining effective immigration control.
60. We can allow an appeal against removal brought on Article 8 grounds only if we conclude 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 she cannot succeed under the Rules (Huang and Others v SSHD  EWCA Civ 105), applying Razgar v SSHD  UKHL 27: "Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case-by-case basis.") We also bear in mind the conclusions drawn by the Master of the Rolls in R(Mahmood) v SSHD  INLR 1."
"63. We are not persuaded, however that these factors make this case truly exceptional."
"64. We accept Ms Naik's submission that, on the basis of Lekstaka [Lekstaka v IAT  EWHC 745 (Admin)], it is right that we should bear in mind the fact that the appellant only just failed to qualify for admission under the Immigration Rules. However, the circumstances in Lekstaka were different. In that case the appellant's removal (to Kosovo) would not only have interfered with his family life, but would effectively have brought it to an end, not least since it was "a forlorn hope" that the appellant would be able to visit this country in the future. We come back to this point below.
65. Nor do we consider that the appellant is assisted by Mahmood. The Master of the Rolls made plain that whether or not interference with family life is justified would depend on the facts of the particular case. He also noted expressly that knowledge on the part of one spouse at the time of marriage (Mahmood being a marriage case) that rights of residence of the other were precarious militated against a finding that an order excluding the latter spouse violated Article 8. We consider there to be a significant parallel to be drawn. In this case, knowledge on the part of all the family at the time that the application commenced her family life in the United Kingdom was that her immigration status was precarious.
66. Ms Naik submits (paragraph 41 of her skeleton argument) that there is no appropriate or applicable Rule other than paragraph 317 which would entitle the non-settled parent of a British child residing with the other parent in the United Kingdom to be admitted, where the non-settled parent had not previously had limited leave to remain as a spouse or unmarried partner. We disagree. We consider that this appellant could readily make an application under paragraph 246 of the Rules, which makes express provision for those seeking leave to enter the United Kingdom to exercise access rights to a child resident here. We consider that the appellant meets all the requirements of that paragraph, or could readily put herself in a position where she would.
i. She is a parent of a minor child resident here.
ii. The carer with whom the child permanently resides is resident here.
iii. There should be no difficulty in the appellant obtaining a certificate from a district judge to confirm her intention to maintain contact with the child.
iv. She intends to continue to take an active role in the child's upbringing.
v. The child is under the age of 18.
vi. There will be adequate accommodation for the appellant without recourse to public funds in accommodation which she owns or occupies exclusively: she is already living in the home provided for Nureha and Ruhul Ebrahim, and there has been no additional recourse to public funds to enable her to do so.
vii. The appellant will be able to maintain herself without any additional recourse to public funds: she is already doing so, with the assistance of family.
67. We can see no reason why a properly structured application under Rule 246 should be refused by an Entry Clearance Officer. After twelve months, the appellant would be entitled to make an application for indefinite leave to remain in the United Kingdom under paragraph 248D, since Ruhul would still be under 18 at that time.
68. We consider that the proper approach is for the appellant to make an application for entry clearance. Her attempt to remain here has been in blatant disregard of the Rules. We do not consider, for all the reasons given above, that her removal would be disproportionate."
"… one is entitled to see, whether in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter."
That seems to us to be the right approach. As Simon Brown L.J. said in Ekinci at paragraph 16:
"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. And if entry were to be refused at that stage, then indeed a s. 59 right of appeal would certainly arise in which, by virtue of s. 65(3), (4) and (5) the adjudicator would have jurisdiction to consider the appellant's human rights."
"The true position in our judgment is that the Human Rights Act 1998 and s. 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."