United Kingdom Asylum and Immigration Tribunal

jh

Heard at Field House

[2003] UKIAT 00149 A (Bangladesh)

On 20 October 2003

Prepared 21 October 2003

IMMIGRATION APPEAL TRIBUNAL

Date Determination notified: 18 November 2003

Before:
Mr H J E Latter (Chairman) Mrs J A J C Gleeson

Between

APPELLANT

and
SECRETARY OF STATE FOR THE HOME DEPARTMENT

RESPONDENT

Representation

For the appellant: Mr B Banerjee of Counsel, instructed by Malik & Michael, Solicitors

For the respondent: Mr G Saunders, Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant, a citizen of Bangladesh, appeals with leave against the determination of an Adjudicator, Mrs S Brookfield, who dismissed his appeal on both asylum and human rights grounds.
2. The appellant made a clandestine entry into the United Kingdom. There is some doubt about the date of arrival. When he was interviewed in 1998 he said that he had arrived less than two years previously but in the appeal papers there are references to the appellant arriving in 1994. In any event, he did not claim asylum until 1998 after he was apprehended by the authorities. His application was refused on 22 June 2000 and an appeal against that decision was dismissed on 5 January 2001. Subsequently the appellant made an application under the Human Rights Convention. The appeal before the Adjudicator was against the decision made on 17 May 2002 maintaining the respondent's refusal to grant leave to remain.
3. The Adjudicator was not satisfied that there was any real risk of a breach of Article 3 if the appellant returned to Bangladesh. The appellant was refused permission to appeal against the Adjudicator's findings on this aspect of the claim but was granted permission to appeal against her decision on Article 8 grounds.
4. The appellant married Nazma Begum on 25 March 1998 and they have a son born on 14 December 1998. The appellant and his wife do not live together. The appellant claimed in his statement that the marriage was subsisting and that he has been trying to bring about a reconciliation. He has been granted a contact order made in the Oldham County Court on 19 March 2002 granting him contact with his son every Tuesday together with such other contact as may be agreed. He has a number of close family members settled in the United Kingdom who support him both emotionally and financially.
5. The Adjudicator was not satisfied that there was existing family life between the appellant and his wife, nor between the appellant and other close family members, a brother, two sisters and an uncle who live in the United Kingdom. However, she was satisfied that there was family life between the appellant and his son, that to remove the appellant would amount to an interference with his family life and that removal would be for a legitimate purpose.
6. The issue for the Adjudicator was to consider whether the interference would be proportionate to this legitimate aim. She concluded that whilst the appellant would not be able to enjoy the regular physical contact he presently had with his son, he would be able to keep in touch by telephone and letters. He would be able to make an application under paragraph 246 of HC395. His wife was cooperative about the appellant exercising contact and it was possible that she would allow her son to visit him in Bangladesh when he was old enough and capable of travelling there. The Adjudicator was not satisfied that the appellant would encounter insurmountable obstacles in establishing family life with his son from Bangladesh. She was satisfied that removal would not be disproportionate to a legitimate aim.
7. The grounds of appeal argue that there would be a breach of Article 8(1) and that removal would be disproportionate. It is said that the Adjudicator failed to recognise the importance of the family life between the appellant and his son who had been born here and had adopted the culture of this country. In his submissions Mr Banerjee adopted these grounds. He confirmed that the appellant had continued to see his son regularly. Visits now took place on Saturdays or Sundays as his son had started school. The new arrangements had been agreed between the parents. The appellant had rented somewhere for himself and hoped that he would be able to take his son to his home sometimes, subject of course to his wife's agreement.
8. The appellant has continued to pay maintenance and has now contacted the Child Support Agency so that the amount can be properly assessed. He is working and his employer is happy to retain him. There has been no divorce and the appellant hopes that, given time, there is a chance of reconciliation. Mr Banerjee submitted that a child needed both parents, particularly in his formative years. The change of circumstances arising from the appellant being removed to Bangladesh could have a serious detrimental effect on his son. His presence was needed for his son's well-being. Family life had been consolidated and was continuing.
9. Mr Saunders submitted that the Adjudicator had dealt properly with the issue of the contact between the appellant and his son, particularly in paragraph 14(vii) of her determination. Her conclusion that removal would not be disproportionate to a legitimate aim was properly open to her. The appellant could return to Bangladesh and apply for entry clearance under the provisions of paragraph 246.
10. When granting leave, the Vice President commented that it was arguable that the Adjudicator had not taken into account extensive Strasbourg jurisprudence in relation to the removal of a parent with meaningful contact with a child who could not be removed at the same time. He added that the appellant would be expected to provide full evidence of the nature of the contact, relevant court orders, copies of welfare reports and similar material to the Tribunal.
11. In fact no further additional evidence has been provided although there is no dispute that regular contact continues to take place between the appellant and his son. The issue before the Tribunal is whether the Adjudicator was entitled to conclude that removal would be proportionate to a legitimate aim in the light of the inevitable interference with his family life. He would not be able to have direct contact with his son at least for the time being. However, there is no suggestion that all forms of contact will cease. The appellant will be able to maintain contact by letter and telephone. There is provision in the Immigration Rules for entry clearance to exercise rights of access to a child resident in the United Kingdom: paragraph 246. Save in exceptional cases this provision meets the need for a balance to be struck between the importance of a parent maintaining contact with his child and the need for proper and effective immigration control.
12. In assessing whether removal would be disproportionate to a legitimate aim, the Adjudicator has taken all relevant factors into account. She has considered the effect of regular direct contact stopping but properly noted that indirect contact can continue. There is a prospect of future direct contact within the provisions of paragraph 246 and looking further into the future, the possibility at least of the appellant's son travelling to Bangladesh. The Adjudicator has taken into account the fact that the appellant was aware of his lack of immigration status when he married. She was entitled to comment that there was no reason why his wife and son should not return to live with him in Bangladesh although she accepted that it was reasonably unlikely that his wife would wish to do so. These factors must be considered and balanced against the fact that a state has a right under international law to control the entry of non-nationals into its territory.
13. In summary the Tribunal are satisfied that the Adjudicator's conclusions were properly open to her for the reasons she gave. She has taken all relevant factors into account and given clear and intelligible reasons fully justifying her decision. There is no adequate basis on which the Tribunal could or should interfere with her decision.
14. It follows that this appeal must be dismissed.

H J E Latter

Vice President