United Kingdom Asylum and Immigration Tribunal

SB v Entry Clearance Officer, Islamabad (Pakistan) [2002] UKIAT 06623

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 26 November 2002

Date Determination notified: 19 February 2003

Before

Mr C M G Ockelton (Deputy President)

Professor D B Casson

Mr D J Parkes

Between

SB	APPELLANT
and
Entry Clearance Officer, Islamabad	RESPONDENT

DETERMINATION AND REASONS

1. The Appellant is a citizen of Pakistan. She appeals, with leave, against the determination of an Adjudicator, Mr C J Yelloly, dismissing her appeal against the decision of the Respondent on 5th January 2001 refusing her entry clearance to the United Kingdom with a view to settlement as the husband of Jamail Abdul Nasser Zaman, the sponsor. Before us today she is represented by Mr Raja of Independent Immigration Advisory Service and the Respondent is represented by Mr Pichamuthu.
2. The application in the present case was made on 21st September 2000. There was a short interview of the Appellant in Pakistan on 9th November 2000, and the decision refusing the application was made on 5th January 2001, as we have said. At that date, the grounds of refusal related to maintenance and accommodation. We will deal with those two issues briefly before passing to the other issue in this appeal.
3. The evidence to which the Entry Clearance Officer had access was derived almost entirely from the Appellant's interview in which she said that her husband was in prison and that she would be supported by her sister-in-law. She did not know what job her sister-in-law had, but papers were provided. She said she herself could not say whether she was going to work in the United Kingdom and did not know what work she would do. The documentation accompanying her application made a statement that the sponsor would obtain a job on his release from prison.
4. So far as the appeal before us is concerned, we note that the Adjudicator made positive findings on both maintenance and accommodation. There was no appeal by the Entry Clearance Officer against those findings and it follows that they stand. It is not a matter for us, but we have to express some surprise at the Adjudicator's findings based, as they appear to be, largely on speculation as to the employment of the sponsor and the Appellant, should she be admitted. As we have said, however, the Adjudicator made his findings which have not been appealed, and for the purposes of this appeal it must be accepted that at the date of the decision, the Appellant was in a position to meet the maintenance and accommodation requirements of the Immigration Rules.
5. The notice of appeal was submitted in March 2001 and it appears that, at some later stage, the Entry Clearance Officer, reviewing the circumstances of the Appellant and the sponsor as he was bound to do on receiving an appeal, decided to amend both the notice of refusal and the explanatory statement to include a further reason for refusal: that being that he was not satisfied that, at the date, of the decision the Appellant and the sponsor intended to live together permanently as husband and wife.
6. Following the Entry Clearance Officer's decision, the grounds were formally amended by the Presenting Officers Unit on 19th December 2001, and so when the matter came before the Adjudicator he had, in addition, to consider whether the Appellant and the sponsor intended to live together permanently as husband and wife at the date of the decision. On that matter, the Adjudicator found against the Appellant for reasons which will become apparent in the course of this determination, and it was for that reason that he dismissed the appeal. It is whether the Appellant, on the date of the decision, met that requirement of the Rules that is now the sole issue before us.
7. The sponsor is a British citizen. He was born in the United Kingdom and has lived in the United Kingdom all his life. The marriage was an arranged marriage which took place in October 1997, when the sponsor was visiting Pakistan. There was an application for entry clearance made by the Appellant, supported by her sponsor, soon after the marriage. It was refused on maintenance grounds and there was an appeal to an Adjudicator. The appeal was dismissed because the Adjudicator agreed that the documentation provided in support of the Appellant's application was forged. As the Adjudicator commented, in dismissing the appeal, "This was a disgraceful attempt to circumvent the Immigration Rules by a series of deceptions." In fact, by the time that the decision of the Entry Clearance Officer had been made in that first application, the sponsor was already in custody in the United Kingdom.
8. Mr Raja has told us that he has been unable to obtain details relating to the offences which the sponsor committed or the dates of the offences, his conviction or of his imprisonment. But there is before us a letter written by the sponsor to Mr Raja. The relevant paragraph is the following:

"I wish to say a few words of my own with your help. As I am serving a sentence of nine years and still have three to four years left for my mistakes before marriage, I do intend to clear my past as soon as possible and obey my parents wishes. My marriage was a chosen marriage by myself and completed by my parents. I was unable to succeed in obtaining a visa before my arrest. However, I would not like to be parted from my wife with so much distance between us for the time I have left."

That letter is dated 9th November 1999. In our view, it clearly indicates that, at the time of his marriage, the sponsor had already committed the offences for which he was subsequently sentenced. We should say that he was convicted of robbery and that he was sentenced, apparently on or about 15th September 1999, to a term of nine years imprisonment. There are before us various calculations as to his possible release date. Suffice it to say, for present purposes, that he has not yet been released and that we regard the dates which have been put before us as matters of mere speculation. It is conceivable that the sponsor will be released on licence in March of next year, but there is no evidential basis for supposing that he will be.

9. At the date of the decision, the sponsor was in prison and likely to remain in prison for a considerable period of time in the future. The Appellant was a party to a marriage which had been undertaken at a time when the sponsor had committed the offence for which he has now been convicted and sentenced. The Appellant had already been a party to an application for a visa, which, in the judgment of the Adjudicator, had been a deception. The sponsor's comment on that is simply that he was not able to get his wife a visa before he was arrested.
10. The Appellant says that she intends to live with her husband. The Adjudicator found that that was an honest intention on her part. The question which we have to decide is whether, in the circumstances of this appeal, it can be properly said that, at the date of the decision, each of the parties intended to live permanently with the other as his or her spouse (to use the words of paragraph 281(iii) of HC 395).
11. As Mr Raja points out, there is a substantial difference between the drafting of subparagraph (iii) and subparagraphs (iv) and (v) of that paragraph. Subparagraph (iii) is expressed solely in the present tense. Subparagraphs (iv) and (v) are expressed in the future. As is well known, a person applying for entry clearance may be able to satisfy the maintenance and accommodation requirements of the Rules by showing that, on the date of the decision, it is the case that within the currency of a visa, the maintenance and accommodation requirements of the Rules will be fulfilled. That is, as Mr Raja points out, not sufficient for subparagraph (iii). Subparagraph (iii) is expressed in the present and requires that, at the date of the decision, there is an intention, and that the intention is to live permanently with the other.
12. Mr Raja has pointed out that mere temporary separation between the parties to a marriage is not sufficient to show that they do not intend to live permanently together. It is also clear from authority, which Mr Raja has not been able to cite to us fully, that if parties decide for their own practical purposes not to spend every night together, that does not mean that they do not intend to live together permanently as husband and wife.
13. On the other hand, it is our view that intention means more than hope. We note in particular that, in the present case, it would not have been lawful for the Appellant and the sponsor to live together whilst the sponsor is in prison. Visiting is not living together. So we are faced with a situation in which the Appellant's declared intention is to do something which would be for the moment unlawful. It does not appear to us that an intention to do something which is unlawful should be recognised by the way in which the Immigration Rules are interpreted.
14. By his own acts, the sponsor has prevented his free movement. He cannot go to Pakistan to visit his wife and he cannot have his wife, the Appellant, to stay with him in the United Kingdom. It is entirely unrealistic to regard the situation at the date of the decision as one which should be recognised as one in which the parties intend to live together permanently as husband and wife. They may be able rightly to say that, on that date, they had a mental state which was that at some time in the future they would intend to live together permanently as husband and wife, but that is not what the Rules require.
15. For those reasons, it appears to us that, at the date of the decision, the Appellant did not meet the requirements of paragraph 281(iii).
16. Mr Raja has argued that the case also raises issues of human rights. He says that the sponsor has a right to have his wife visit him and that the Appellant has a right to visit her husband. Those, we apprehend, are rights said to exist under Article 8 of the European Convention on Human Rights. It is right to say that Article 8 requires public authorities to recognise the right to family and private life. However, it is also clear that interference with private or family life may be permitted if it is justified and proportionate. In the present case, there is no basis for saying that the exclusion of the Appellant in this case, who has been with her husband for only a short period since their marriage, and who married a man who was at that time evidently at risk of prosecution, conviction and sentence, would contravene Article 8.2. Indeed it is right to say that Mr Raja did not attempt to make any submissions relating to Article 8.2, contenting himself merely with asserting that human rights were engaged in this case.
17. For the foregoing reasons, this appeal is dismissed.

C M G OCKELTON

DEPUTY PRESIDENT