COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/10123/2008]
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LORD JUSTICE PATTEN
| MA (PAKISTAN)
|- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr J Hall (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
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Lord Justice Sullivan:
"If the passenger wishes to enjoy his family life in the United Kingdom then it is open to him to return to Pakistan temporarily to apply for the appropriate entry clearance to join his spouse here. Alternatively there would appear to be nothing to prevent the appellant and his spouse from enjoying their family life in Pakistan."
1. The applicant in this case was born in November 1984 and is now aged 24. He came to this country on an entry clearance as a student in September 2004 and in January 2006 his visa was extended to 13 October 2009. He was then taking a business management course at Middlesex University. In January 2007 the applicant was obliged to leave that course because financial support from his family was withdrawn and it became necessary for him to take up full-time employment.
2. In July 2007 the applicant married and he and his wife travelled to Pakistan, where unfortunately he fell out with his father and they returned to the United Kingdom. In January 2008 he returned to Pakistan believing that his father was ill and at that point the disagreement between them flared up again. His father retained his passport and the applicant was forced to remain in Pakistan for five months. He eventually returned to the United Kingdom on 5 June 2008. He says that he is concerned for his safety if he were to return to Pakistan because his father has influential friends.
3. Some time before the applicant returned to the United Kingdom, or possibly soon after he returned, the Secretary of State appears to have discovered that the applicant was no longer a student and cancelled his leave to remain in this country. He appealed against that decision and his appeal was dismissed, but in August 2008 a reconsideration was ordered because it was considered that the Immigration Judge had failed to consider the Human Rights implications of the decision."
"It appears on the face of it that paragraph 281 of the Immigration Rules which applies to the spouses of persons present and settled here would apply and he would be able to return without any issues."
The immigration judge returns to the implications of that in paragraph 16 of the determination when considering what the consequences of the applicant's removal from this country would be:
"The consequences of his removal are not grave. They would either be apart solely for the time it takes for him to apply for leave to enter or they move together to Pakistan to live where they would both be able to find work. I do not see any insurmountable obstacles in their way. The fact that removal in order to reapply would be inconvenient cannot amount to such an obstacle."
"I am far from suggesting that the Secretary of State should routinely apply this policy in all but exceptional cases. Rather it seems to me that only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad."
"The fact that removal in order to reapply would be inconvenient cannot amount to such an obstacle."
Mr Canter criticises the immigration judge's use of the "insurmountable obstacle" test as outdated and inappropriate in any event, and I will return to that criticism in a moment.
"As to proportionality. Here it is my task to weigh all the considerations and give due considerable weight to the considerations in favour of the decision appealed against. In this case I find that the Appellant that I am dealing with is not entitled to succeed under Article 8. There is nothing disproportionate about this decision."
If there was to be a discussion of the issues raised by Chikwamba, one might have expected to find that discussion in this paragraph.
"… or they [could] move together to Pakistan to live where they would both be able to find work."
Lord Justice Jacob:
Lord Justice Patten:
Order: Application granted; appeal allowed