QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF NADESU||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
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)
MR J P WAITE (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
Crown Copyright ©
"The policy on the exercise of discretion in safe third country cases where family ties to the United Kingdom are claimed is that potential third country cases would normally have their asylum claims considered substantively in this country where:
(a) an applicant's spouse is in the United Kingdom ...
The policy in (a) would not be applied in cases where a marriage was contracted after the applicant's arrival in the United Kingdom. In all cases 'in the United Kingdom' is to be taken as meaning with leave to enter or remain or on temporary admission to this country as an asylum seeker prior to an initial decision on their application ...
The intention of the policy is to re-unite members of an existing family unit who, through circumstances outside of their control, become fragmented..."
"We recognise that a substantial area of discretion will need to be left in order to deal sensibly with individual cases on their merits. Broadly speaking, however, the approach we propose to adopt is that potential third country cases would normally be considered substantively where
(a) the applicant's spouse is in the United Kingdom ...
(In all cases 'in the United Kingdom' should be taken as meaning with leave to enter or remain or on temporary admission as an asylum seeker.)"
"That statement makes it quite plain that this is the normal practice but not necessarily the invariable practice and ... it makes provision for the abnormal case."
Later at page 603:
"To my mind there is no statement of policy apparent in this case to the effect that the establishment of family links will be regarded as conclusive..."
See also Nicholas v Secretary of State for the Home Department CO/2283/98 per Harrison J at paragraph 25.
"To my mind it is entirely understandable that the Secretary of State should require the appellant to return to Germany so as to discourage others from circumventing the entry clearance system. One authority which [counsel] put before us was this court's decision in Shala v Secretary of State for the Home Department  EWCA Civ 233. In giving the leading judgment there Keene LJ said at paragraph 10:
'It is important that those without leave to enter or remain should not be able to exploit the procedures so as to be able to prolong their stay in the United Kingdom by making in-country applications for such leave. As Mahmood ... shows, even with a subsisting marriage, a person only here on temporary admission will be required to return home to seek entry clearance, unless there are exceptional circumstances' ...
11. In short, I see nothing even arguably disproportionate in requiring this appellant to return to Germany for the relatively short space of time that will elapse before he is then able to have his entry clearance application properly determined, if necessary outside the strict rules."