QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SURINDER SINGH||(CLAIMANT)|
|THE IMMIGRATION APPEAL TRIBUNAL||(DEFENDANT)|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS S CHAN (instructed by The Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"The couple met in April 2000 that is to say, whilst the Appellant was waiting for the rehearing of his case. The Appellant's renewed appeal was refused on 18 December 2000 and the couple married on 6 April 2001. Mrs Purewal was aware of the precarious nature of her husband's right of residence but seems to have taken a fatalistic view of it. She said in evidence that she would cross that bridge when she came to it. I am satisfied that at the time of the marriage she was aware of her husband's position. She must have known when she married the Appellant that there was a possibility, at least, that he would be returned to India. The marriage although undoubtedly subsisting has been of short duration of about a year and the entire relationship has existed for no more than two years. This is not a case in which a long established couple find themselves faced with expulsion of one of them. Both knew from the outset that this was a distinct possibility. It would of course be open to the Appellant to apply for leave to enter the United Kingdom once he had returned to India."
He concluded that there would be no disproportionate breach of rights under article 8 of the convention.
"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 wellbeing 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."
"(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 family 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."
"The Court has held that Article 8 does not impose a general obligation on States to respect the choice of residence of a married couple or to accept the non-national spouse for settlement in that country (Abdulaziz, Cabales and Balkandali judgment (1985) 7 EHRR 471, paragraph 68)."
"The Commission recalls however that Samuel Adjei and Ama Poku married in August 1994 when she had already been subject to immigration proceedings and a deportation order had been served. He must accordingly be taken to have been aware of her precarious immigration status and the probable consequential effects on his other family relationships by the enforcement of the deportation order. While his daughter Sarah may also claim that her family life is affected and cannot be said to be in the same position as her father, the Commission considers that her situation also flows from the choice exercised by her father rather [than] from any direct interference by the State with her family relationships."
"In these circumstances I do not consider that the possibility that his application may not succeed is any reason for excusing him from the requirement to make an application outside the country if he wishes permission to settle here with his wife and family."
I reject Ms Sheehan's third argument for the same reasons.