United Kingdom Asylum and Immigration Tribunal

Immigration Officer Terminal 2 Heathrow vs BN (family members, ECHR Art 8, proportionality) Chile [2002] UKIAT 05225

TH17839-02

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 16 October 2002

Date Determination notified: 13 November 2002

Before

Mr T S Culver Mrs E Morton

Between

Immigration Officer Terminal 2 Heathrow	APPELLANT
and
BN	RESPONDENT

Appellant - Mr S Ouseley Home Office Presenting Officer. Respondent - Mr P Dakora of Mathis Solicitors.

DETERMINATION AND REASONS

1. The appellant the Immigration Officer at Heathrow Terminal 2 appeals with leave of the Tribunal against the determination of an Adjudicator ( Mr P M Petheridge ), who allowed the appeal of the respondent against the decision of the appellant made on 13 September 2001 to refuse leave to enter on the basis that the appellant's claim does not fall within the Immigration Rules.

2. The appeal of the respondent was based on Section 65 of the Immigration and Asylum Act 1999 and the assertion that his right to family life under Article 8 of the European Convention of Human Rights (ECHR) would be violated by his removal and upon the rights granted by the European Economic Union in regard to his wife who is an Italian national seeking to exercise her rights to work in this country

3. The claim of the respondent depends of the following facts:

   (a) He has lived with Ms Zambelli Quintalla in Chile from 1986 to February 2000 and they have two sons aged 13 and 16 years.

   (b) They have never married because the respondent was previously married. There is no divorce in Chile and the respondent had told the Immigration Officer that he did not obtain an annulment because he could not afford the costs and it is a lengthy process.

   (c) Ms Quintalla is both a Chilean national and an Italian National through her parents. In February 2000 she came to the United Kingdom to visit her brother and look for work. She was followed by their two sons in September and December of that year.

   (d) She lived in a council house of which she was the tenant and on public benefits until January 2001 when she worked for some time but was not in employment when the respondent arrived in this country. She was again in employment at the time of hearing of the appeal before the adjudicator in June of this year.

4. The respondent, a citizen of Chile, arrived in the United Kingdom on 12 March 2001 and sought entrance for 3 months as a student at the Stanton School of English. He stated that he worked for a fish export business and his employers had funded his visit to the United Kingdom. He stated that he had no family or friends in the United Kingdom.

5. The appellant refused his claim for asylum because his suggestion that he came here to study was clearly false and he had no lawful basis for admission and the matter came before the adjudicator.

6. The adjudicator accepted The appellant had demonstrated both a wilful disregard for the Immigration Rules and a ready willingness to employ deception on arrival. He noted that; The Immigration Service were of the view that the appellant's account on arrival contained so many fabrications and was so extensively contradicted by his partner that some of the details relating to the appellant's personal circumstances in Chile had still not been satisfactorily established.

7. He notes; It would have been open to the appellant to apply in the proper fashion for the requisite entry clearance. The appellant [sic] could with her sons if they wished obviously return to Chile.

8. However he found both the appellant and Ms Quintalla credible in the evidence they gave before him. He accepted that they had a family life together. He states; I am satisfied from the evidence I have heard that this is a family intent on being self-supporting and anxious through all its members to make a positive contribution to this country.

9. He noted that the boys were doing well in school in this country their only difficulty being their knowledge of English.

10. He concludes that the removal of the appellant would be disproportionate to the legitimate aims of the United Kingdom in immigration control and hence in violation of the Article 8 of the ECHR. On that basis he allows the appeal.

11. We will begin by considering the position under the EEA. Mr Dakora argued that Ms Quintalla as an Italian national is entitled to come to this country to seek employment. He argued that even though she relied on public funds from time to time she has also worked and so at the time of the decision was entitled to be treated as worker.

12. He cited to us the MRAX case decided by the European Court of Justice on 25 July 2002 which decides that it is not consistent with EEC law to require a visa for the spouse of an EEA national exercising their rights under the treaty. He argued the case shows that such a spouse may not be returned merely because they have failed to comply with legal formalities concerning the control of aliens.

13. Mr Ouseley did not dissent from that suggestion. But the regulation referred to in that case refers to a spouse and this respondent is not a spouse and the regulations do not apply to him.

14. Mr Dakora replied that European regulations extend the meaning of spouse in that if a concession is made for a national it must also be available to a person seeking to exercise his rights under Community legislation.

15. Mr Ouseley did not dissent from that suggestion either but he said the same concession applies to EEA nationals and British citizens and that this appellant does not fall within the scope of the concession which requires;

    (a) The passenger holds a valid entry clearance appropriately endorsed

    (b) That there is no reason to believe that false representations were made in order to obtain the entry clearance.

16. He argued that the appellant in this case failed on both counts in that he had no entry clearance and had attempted to use false representations to obtain entry.

17. Mr Dakora replied this was the very sort of visa or legal formality held to be unlawful in the MRAX case.

18. We do not agree. The MRAX case refers to the need for production of proof of identity and proof of marriage. These are matters which are generally straightforward to prove and can be proved by documents. The matters which must be shown to fall within the concession for unmarried partners may well require investigation in the home country.

19. These include that the couple have lived together for at least 2 years, that any previous marriage has broken down and that the parties are unable to marry under United Kingdom law and the other matters which are required of an application for a spouse.

20. We believe these are far more than legal formalities and that it is entirely appropriate for the Secretary of State to require an entry clearance before entry to the United Kingdom.

21. Therefore this case does not fall to be decided under this aspect of European law and it was not under this principal that the adjudicator allowed the appeal. He acted under article 8 of the ECHR.

22. Mr Ouseley criticised the decision of the adjudicator in that he did not properly consider the question of proportionality. He considered the situation of the respondent and Ms Quintilla but he did not consider the legitimate goal of the Secretary of State to maintain orderly immigration control.

23. He suggested that it is clearly proportionate to require the respondent to comply with the conditions of the Secretary of State's concession. He accepted that it may well be that the respondent will succeed and be able to return within a few months, that will be a matter for the entry clearance officer in Chile.

24. Mr Dakora replied that it would not be proportionate to remove the respondent. He has settled here with his partner and their children and it would not be right to remove him.

25. The Court of Appeal considered the application of Article 8 in immigration matters in the case of Amjad Mahmood (2001) ImmAR 229. Having reviewed the authorities from the European Court of Human Rights the Master of the Rolls set out certain conclusions as to the application of Article 8 to the enforcement of immigration controls at page 249:

    i. A State has a right under international law to control the entry of non-nationals into its territory, subject to its treaty obligations.

    ii. Article 8 does not impose on a State any general obligation to respect the choice of residence of a married couple.

    iii. 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.

    iv. Article 8 is likely to be violated by the expulsion of a family 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 the member expelled.

    v. 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.

    vi. Whether interference with family rights is justified in the interests of controlling immigration will depend on:

    1. the facts of the particular case and

    2. the circumstances prevailing in the State whose action is impugned.

26. We apply those principals to this case. We begin by accepting the finding of the adjudicator that there is family life existing between the respondent his partner and their children. Although their relationship has lasted some 16 years, most of that time they were in Chile. They have not been established in this country for a long period of time. The respondent has only been here for a year and a half.

27. Having accepted family life we proceed with the step by step process recommended in many cases. The first question is whether his removal would be in accordance with the law. Clearly it would: he has no right to live in this country. He attempted to gain admission by deception and was only granted temporary admission so that the questions involved in this appeal could be dealt with.

28. The next step is to consider the goal of the State. It is here clearly to maintain an orderly immigration control. It is well established that this is a legitimate goal within a democratic society.

29. Finally we come to what is generally the most difficult question in cases involving limited rights and that is the question of proportionality. It is here that we feel the adjudicator went astray.

30. If one focuses on the facts of this case and the goal of the Secretary of State we feel it becomes clear that it would be proportionate. Surely the goal of an orderly immigration control would be completely undermined if it were possible for someone to come to this country and attempt by fraud to enter and having failed that assert that his family rights would be infringed if he were not allowed to enter based on a relationship that had never existed in the United Kingdom.

31. If we focus on the time of the decision, as we must, the family had never lived in this country as a family. It is open to the respondent to make a fresh application from Chile or for his partner and their children to accompany him back to Chile and there assist him with a lawful application under the concession if they so wish.

32. The ECHR must not become a vehicle for getting around the normal immigration rules for those who can not be bothered or do not choose to use them.

    Thomas S Culver