United Kingdom Asylum and Immigration Tribunal

APPEAL No. MH v Secretary of State for the Home Department (Pakistan) [2002] UKIAT 04685

HR 31071-01

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 23 September 2002

Date Determination notified: 04 November 2002

Before
John Freeman (chairman)
and
Mr MG Taylor CBE
Between

 

MH	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

Miss K Gemmell (solicitor, Ethnic Minorities Law Centre, Glasgow) for the appellant Mr A Mullin for the respondent
DETERMINATION AND REASONS
1. This is an appeal from a decision of an adjudicator (Mrs CM Phillips), sitting at Glasgow on 15 October 2001, dismissing a human rights appeal by a citizen of Pakistan, whose asylum appeal had already been withdrawn, from refusal to let him stay on here, despite a deportation order in force against him, on 13 February 2001. Leave was given, on what basis is not entirely clear.
2. The difficulties caused in this case can once again be put down to § 77.4 of the 1999 Act, which requires the appellate authorities to consider, on anything but an asylum or article 3 point (why article 2 is not also included is more than we can say), only evidence

a) which was available to the Secretary of State at the time when the decision appealed against was taken; or

b) which relates to relevant facts as at that date.

The order of events in the present case follows next.

3. Chronology

01.91 appellant applies for a visit visa, claiming wife and child in Pakistan

27.02.91 appellant arrives here

08.08.91 applies for leave to remain as working holidaymaker

12.07.93 warned to leave, following dismissal of appeal against refusal

19.07.93 applies for asylum

26.01.95 applies for leave to remain as husband of a British citizen

22.02.95 withdraws appeal against refusal of asylum

04.01.96 deportation order served

17.10.96 judicial review refused; appellant not removed (wife expecting first child)

03.12.98 judicial review refused again: appellant not removed (wife expecting second child)

25.01.00 further application for leave to remain as husband

13.02.01 final refusal

4. At the date of that final refusal the appellant was living with his wife (of Pakistani origins, but long settled here) and two children, a daughter born 20 November 1996, and a son born 9 April 1999. She was expecting again; but that child was still-born at 38 weeks on 23 March 2001. We reject the suggestion that the adjudicator, or anyone else, could have anticipated that as at the date of the decision under appeal. The appellant's wife had no significant medical history that we have been told of: any pregnancy may have a whole range of outcomes, from a normal happy delivery to a stillbirth, or what may be worse, live birth with serious handicaps. The situation with which the adjudicator had to deal was that of a family with two young children, and a third likely to arrive before any removal. She did not have to consider what was said (most recently in letters from the wife's GP and psychiatric nurse on 27 November 2001) about the fragile state of her mental health, following the stillbirth.
5. The real question before the adjudicator, and us, was whether removal of the appellant would be an interference with his family life which would be proportional to the legitimate purpose of immigration control. He has a shocking immigration history, which the adjudicator was well entitled to take into account: on the other hand, (which she did not) the Home Office were hardly energetic about removing him. If they had set about it promptly, by dealing with his first marriage application as soon as possible after he had withdrawn his asylum appeal, then they could almost certainly have achieved it before he and his wife had started a family. Then, although they won twice on judicial review, the Home Office not only delayed enforcing the deportation order each time while a child was born, which may have been reasonable; but left any final decision till the birth of a third child was imminent.
6. Clearly a family with young children this age needs to be kept together if possible. The adjudicator was right not to take the wife's present condition into account in deciding whether she could reasonably be expected to go and live in Pakistan; though she is said not to speak Urdu, and has probably lived here too long for that to be at all easy for her. The daughter, just over 4 at the date of the decision, had not settled into school; and even now would at her age adapt well to life in Pakistan; so would the son, nearly two at the date in question. However, the main proviso in each of their cases, we think, is that their mother should also take to it. Even as she was then, in the final trimester of what appears to have been a normal pregnancy, she was not only a British citizen, but had lived most of her life here; and there is nothing to contradict the assertion that she speaks no Urdu. We do not think she could reasonably have been expected to settle down at all easily in Pakistan with three young children. The adjudicator was right to accept that she was likely to refuse to go with him; but in the circumstances that was likely to result in a serious interference with their family life.
7. An alternative possibility in terms of Amjad Mahmood [2000] INLR 1, though not one considered by the adjudicator, was that the appellant himself should return to Pakistan and apply for a visa in the ordinary way from there. In the case of a couple with no children, or older ones, there will usually be little answer to that suggestion. However, with two young children, and another well on the way, a gap even of months (the best agreed estimate we could get for the visa procedure) in paternal support would be a serious matter. (The appellant is said to be working in an Indian restaurant: though there was no evidence of that before us, Mr Mullin did not challenge it).
8. Looking at the appellant's immigration history as a whole, the impression we get is one of deliberate delaying tactics by him; but of negligent delay by the Home Office. As we have made clear above, timely action by them would almost certainly have been regarded as proportional to the purpose of immigration control in this case. However we think that time had already passed, when the appellant's wife's third pregnancy was so near its term.

Appeal allowed

John Freeman (chairman)