United Kingdom Asylum and Immigration Tribunal

LSH

Heard at Field House

[2003] UKIAT 00093 R (Sri Lanka)

On 30 September 2003

Dictated: 30 September 2003

IMMIGRATION APPEAL TRIBUNAL

Date Determination notified: 14/10/2003

Before:
Mr A Jordan (Chairman) Professor D B Casson

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

APPELLANT

and

RESPONDENT

Representation:

For the appellant: Mr J McGirr, Home Office Presenting Officer

For the respondent: Mr R Maloney, instructed by M K Sri & Co

DETERMINATION AND REASONS
1. This is an appeal by the Secretary of State of the Home Department against the determination of an Adjudicator (Dr R Kekic) allowing under Article 8 of the European Convention on Human Rights an appeal by Mrs Rajanayagam (the claimant), a citizen of Sri Lanka, against the decision by the Secretary of State on 15 September 2001 to refuse to grant leave to enter the United Kingdom.
2. The claimant arrived in the United Kingdom on 20 August 2001 and applied for asylum at Heathrow airport on arrival. She said she had flown from Colombo to Singapore, using a false passport. She said she had stayed in Singapore for 1 month and then flown to the United Kingdom. At her screening interview she said she had not applied for asylum in any other country because she wanted to join her husband in the United Kingdom. She said she had left her own passport in Sri Lanka. A Statement of Evidence Form was submitted and an asylum interview was held on 21 August 2001, but her application was refused for reasons given in letters dated 7 September 2001 and 16 August 2002. At her screening interview the claimant said she had married her husband, a citizen of Sri Lanka who had left that country in 1995, in Madras, India, on 23 January 2001. She said it was a marriage arranged by her parents and that she met her husband at the wedding. Her husband had exceptional leave to remain in the United Kingdom, but had travelled to India for the marriage. She agreed that her parents had arranged the marriage in order to help her to get to the United Kingdom.
3. The appeal before the Adjudicator was heard on 16 December 2002, and her determination was promulgated on 23 December 2002. She dismissed the claimant's asylum appeal, but allowed the appeal under Article 8 of the European Convention. There is no appeal against the dismissal of the asylum appeal.
4. The Adjudicator noted that the claimant's marriage had been arranged to enable her to leave Sri Lanka, although she said she viewed it as a genuine marriage and expected it to last. At paragraphs 45 and 46 of her determination, the Adjudicator said:

"45. Article 8 was also relied upon. The appellant married her husband in India in January 2001. She then sought entry clearance to join him but this was refused as her husband was not a UK resident and only had exceptional leave to remain. It is argued that since her arrival here she has lived with him and that they have established a family life; indeed the appellant is expecting a baby in February 2002. (sic).

46. There was no challenge to the fact that the couple had been living together since the appellant's arrival in August 2001. In contrast to immigration rules and previous Home Office policy concerning persons in a relationship akin to marriage, there is no fixed time limit before a relationship can be said to constitute family life. I am therefore satisfied that a family life has been established; the appellant's pregnancy is obvious proof of that. This is a matter which I find I am able to take into account as the Secretary of State was aware of the marriage at the time of decision, the marriage pre-dated the appellant's entry into the United Kingdom and the pregnancy, whilst a post decision fact, clearly relates to the marriage and must have been a foreseeable fact…"

5. The Adjudicator then referred to authorities and continued:

"51. At the time of the marriage the appellant was outside the UK and had no reason to believe that she would not be permitted to join her husband. Her husband is unable to return to Sri Lanka as he came here as an asylum seeker and indeed has been granted 4 years ELR. This expires in January 2004. He is not entitled to submit an application for residence until that time and it is not known how long the application would take to be processed. Assuming it is granted and is not simply extended, the appellant could then make an application to join him in the UK. That would also take time to be processed. Meanwhile they would be forced to live apart and their child, which is due in February, would spend the first few years of his life without the presence of his father.

52. I accept Mr Cottrell's submission that the appellant has sought to circumvent the immigration rules but given that the appellant's child will be adversely affected through no fault of its own, I find that removal cannot be right. The factors in favour of allowing the appellants to remain in the UK outweigh the adverse factors….

54. The appellant's husband cannot return to Sri Lanka. Therefore, if the couple are to continue to conduct a family life it cannot be in the appellant's country of origin. There is no evidence that any other country would grant residence to the couple.

55. There are currently real obstacles in the way of the appellant pursuing from abroad an application for entry clearance as a spouse. The application could not be made for at least another 18 months and even then it is not certain that the appellant's husband would be granted ILR. Given the length of time involved, I find that a removal decision would amount to a disproportionate measure, since its consequence could be the prolonged or possibly permanent separation of the couple.

56. Whilst I fully accept that it is legitimate for the Immigration Authorities in the interests of the maintenance of effective immigration control to require certain applicants to apply for entry clearance from abroad, I find that in the exceptional circumstances of this case there is a real risk that entry clearance would not be granted, accordingly the couple would face insurmountable obstacles to continuing their family life either in Sri Lanka or in the UK."

6. The grounds of appeal submitted on behalf of the Secretary of State complain that the Adjudicator erred by stating in paragraph 51 that the claimant's husband cannot return to Sri Lanka as he has been granted exceptional leave to remain; he has not been recognised as a refugee and there is no barrier preventing him from returning; the Adjudicator should have considered whether there were any insurmountable obstacles to his return; the Adjudicator had speculated on the husband's possible status at the end of his exceptional leave and on the possible outcome of an application for entry clearance that had not even been made; that the Adjudicator had not given proper reasons for her finding in paragraph 55 that an application could not be made for "at least another 18 months", and again had not considered the possibility of the husband's return to Sri Lanka.
7. We heard submissions from both representatives. Mr Maloney invited us to uphold the Adjudicator's decision.
8. We were told that the claimant's husband's status remains as it was at the time of the Adjudicator's decision: he has exceptional leave to remain until January 2004 but has not been recognised as a refugee. A child has been born to the couple and were told that another child is expected.
9. We are quite clear that the grounds of appeal in this case are made out. The Adjudicator appears to have ignored the distinction between exceptional leave to remain and refugee status. Her statement at paragraph 51 of the determination that: "At the time of the marriage (the claimant) was outside the UK and had no reason to believe that she would not be permitted to join her husband" is simply incorrect. At the time of the marriage, and at all subsequent times, her husband was not settled in the United Kingdom but only had exceptional leave. Similarly, there is no basis in law or fact for the Adjudicator's statement at paragraph 54 that the claimant's husband cannot return to Sri Lanka and that if the couple are to continue to conduct a family life it cannot be in her country of origin. Further, there is no evidential basis for the Adjudicator's statement at paragraph 55 that there are "currently real obstacles in the way of the (claimant) pursuing from abroad an application for entry clearance as a spouse". The same criticism must be made of the observation at paragraph 56 that "the couple would face insurmountable obstacles to continuing their family life either in Sir Lanka or in the UK." Neither the claimant nor her husband is a refugee. There was and is no evidence that either of them could not return safely to Sri Lanka. The fact that the husband has exceptional leave to remain does not mean that he cannot return to Sri Lanka. The Adjudicator has in our judgment based her decision on a fundamental misperception of the factual and legal situation. Her decision to allow the appeal under Article 8 of the European Convention must be regarded as unsustainable.
10. For these reasons the appeal by the Secretary of State is allowed.

D B Casson

Acting Vice President