ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
SIR ROBIN JACOB
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Tim Eicke QC (instructed by Treasury Solicitors) for the Respondent
Hearing dates : Monday 24th January 2011
Crown Copyright ©
Lord Justice Rix :
This is the judgment of the court.
"19…the evidence shows that the Appellant and sponsor have exercised their family life in Italy having been put in touch by a mutual friend and have not exercised any of their social contact in the UK. The evidence shows that the Sponsor has visited the appellant in Italy on several occasions and there is no evidence to show that she cannot continue to do so or that she would not be allowed to relocate there. The Appellant and Sponsor did get married in Italy and that is where there daughter was conceived.
20. In addition to that the Appellant works in Italy and has held a number of jobs. He has accommodation which may not be ideal but is sufficient for the Sponsor when she visits. The Sponsor has met a number of the Appellant's friends in Italy and has attended church with him…
22. Article 8 does not confer on an applicant a right to dictate where family life is exercised. Italy is a signatory to the ECHR and there is no evidence to show that the Appellant's and Sponsor's rights under that article would not be adequately protected in Italy.
23. In summary the Appellant and the Sponsor enjoy family life in Italy. That is where their family life was established and has always, for practical purposes, been exercised. There is no evidence to show that the Sponsor could not go to live in Italy, or that it would be unreasonable for her and her daughter to do so. It has not been explained why the Appellant would prefer to reside in the UK and the inconvenience of relocating would apply to him as much as it will apply to his wife and daughter."
"The grounds for seeking permission to appeal make an arguable case concerning the unexplained lacuna in the Immigration Rules which prevents a refugee with five years' leave to remain in the United Kingdom [viz, the appellant's wife] from being joined by a spouse when the marriage took place after the refugee had left the country of habitual residence. Other categories of migrant with limited leave are allowed to be joined by their spouses, and the Court of Appeal has already expressed concern over this matter in A (Afghanistan)  EWCA Civ 825, in which the appeal was allowed outright under Article 8. The present case bears a close similarity, and is apt to be considered by the Court of Appeal."
"352A. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse or civil partner of a refugee are that:
(i) the applicant is married to a person granted asylum in the United Kingdom;
(ii) the marriage or civil partnership did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum…"
"281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner 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 or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to remain in the United Kingdom or is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since when they have been living together outside the United Kingdom; and…
(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and
(iv) there will be adequate accommodation for the parties and any dependants 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 dependants adequately without recourse to public funds…"
"There is ample authority for the proposition that the obligations under Article 8 require a state not only to refrain from interference with existing life, but also from inhibiting the development of real family life in the future."
"We at any rate cannot identify a public interest in preventing refugees like the sponsor from being joined by spouses whom they can maintain and accommodate adequately, when other categories of immigrant who are here with limited leave, and who may not be intending to stay permanently, can be joined by theirs."
"51. In the light of the procedural history of the case I take the view that the [the Secretary of State] should now be foreclosed in this case (and I stress those words) from re-opening the issue and that the proper course is to allow this appeal against the ECO's decision. If we were to allow the appeal, our decision would be of no authority, persuasive or otherwise, if and when this issue falls to be decided in the future.
52. I accept that the public interest arguments now submitted may lead to a Tribunal or Court in the future agreeing that in a case like the present it would not be a violation of article 8 to prevent the spouse from joining the refugee. However, it would be desirable for that issue to be considered first by the AIT, given the specialist knowledge of its members…"
"57. I am far from saying that, on a consideration of article 8 as a whole, a spouse of a refugee, whose marriage did not take place until after the person granted asylum left the country of his former habitual residence in order to seek asylum, can expect a favourable decision under article 8. It will be for the AIT to consider each case on the merits, applying the usual principles."
"1. The Immigration Rules make no provision for the admission of post-flight spouses of refugees with limited leave. The Rules should be changed. In the meantime it is most unlikely that it will be proportionate to refuse the admission of the spouse of a refugee where all the requirements of paragraph 281 are met save that relating to settlement.
2. Immigration Rules cannot be the subject of incompatibility under s. 4 of the Human Rights Act 1998, and in any event, a Tribunal has no power to make such a declaration."
"14. The present appeal, so far as we are aware, is the first opportunity that the Tribunal has had to consider the matter…It is clear that Mr Ouseley [the Home Office Presenting Officer] has endeavoured to obtain all the information he could, in order to put the Secretary of State's case before us in full…In his written skeleton he…continues as follows:
"…That, by and large, means that anyone seeking leave to enter or remain to join a refugee [sc as] a post-flight spouse will not be a refugee, and the UK will not have the same obligations towards them. There are other categories of immigrant (e.g. work permit holders and students) whom UK wishes to attract to the UK for the contribution they make to the economy and the education sector. Not to allow them to bring family members here could detract from that goal. In relation to refugees, the Rules give effect to the UK's international obligations to offer protection, but do not actively seek to encourage asylum seekers to come to the UK."…
19. Mr Ouseley told us that he was still unable to say whether the consequence for the spouses of the change of policy was intentional or unintentional. The position as it is before us is that, as we have indicated, the appellant and other post-flight spouses seem to be the subject of particularly disadvantageous treatment; no public interest in that treatment has been identified; the Secretary of State is not even able to say whether the difference is intentional; but the effect of the Rules is that the difference undoubtedly exists."
"23. So far as the present case is concerned, it is not suggested that there is any country in the world other than the United Kingdom, where the appellant and the sponsor can live together as husband and wife. The appellant meets all the requirements of the paragraph 281, save that relating to the sponsor's status in the United Kingdom. No argument justifying her exclusion, on grounds that her exclusion would in the circumstances be proportionate, has been adduced by the respondent or on his behalf. We have no hesitation in saying that in this case, the article 8 rights of the appellant and sponsor demand that she be granted entry clearance. We shall therefore allow this appeal."
"38. The Court reiterates that the essential object of Article 8 is to protect the individual from arbitrary action by the public authorities. There may in addition be positive obligations inherent in effect[ive] "respect" for family life. However, the boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.
The present case concerns not only family life but also immigration and the extent of a State's obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest. As a matter of well established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory.
Moreover, where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory. In order to establish the scope of the State's obligations, the facts of the case must be considered."
See also Ahmut at para 67, and Sen v. Netherlands  36 EHRR 7 at para 36.
""family members" means, insofar as the family already existed in the country of origin, the following members of the family of the beneficiary of the refugee…"
See also the Family Reunification Directive 2003/86 (which however does not apply to the United Kingdom) at article 9(2) which limits the right to family reunification to "refugees whose family relationships predate their entry".