United Kingdom Asylum and Immigration Tribunal

Heard at Field House [2003] UKIAT 00167 J (Pakistan)

On 23 October 2003

Written 24 October 2003

IMMIGRATION APPEAL TRIBUNAL


Date Determination Notified: 9 December 2003

Before Mr S L Batiste (Chairman) HH Judge Foley

Appellant

and
ENTRY CLEARANCE OFFICER, ISLAMABAD

Respondent

DETERMINATION AND REASONS
1. The Appellant, a citizen of Pakistan, appeals, with leave, against the determination of an Adjudicator, Mrs C J Lloyd, dismissing her appeal against the decision of the Respondent on 21 January 2002 to refuse entry clearance as a spouse. The issue before the Tribunal is whether a person who entered into a telephone marriage that is not recognised under English law, and has never met or cohabited with her intended spouse, can be said to have family life for the purpose of Article 8
2. Mr A Mahmood represented the Appellant. Mr J Jones, a Home Office Presenting Officer, represented the Respondent.
3. The relevant facts can be summarised as follows. The sponsor, who is British by birth, is now aged 23 and lives in Birmingham. He attended a special school from September 1991 and, according to his consultant cardiologist, has had a stormy time following aortic valve replacement in 1994 for congenital aortic valve disease. Since then he has suffered from an extremely rare disorder, which results in extreme difficulty in controlling the level of anticoagulation of his blood. This has resulted in different times in his blood being too coagulable and producing small cerebral strokes and spontaneous bleeding in the gluteal muscle on his left thigh. He requires a stable situation and proper control of his medication. Consequently he is unable to travel outside the United Kingdom and will be unlikely to be able to do so for at least another five years. According to his sister, he has missed out on his schooling and this has not helped him with his education, confidence or communication skills. He is in receipt of disability living allowance and severe disability allowance. He has never been able to work. He cannot walk or stand without support as this causes him discomfort or pain. He lives with his parents and sister.
4. He is a distant relative of the Appellant by marriage. He has never met her but saw her on family photographs and videos and expressed an interest in her. His family arranged a marriage between them. It took place in Pakistan on 6 September 2001. The sponsor participated by telephone, as he was unable to travel to Pakistan. The sponsor's mother returned to Pakistan on 26 November 2001 to take the Appellant to her house there, where they stayed together for several weeks. This is of symbolic significance and reflects the fact that both families regarded the couple as married. The sponsor's mother then returned to the UK and the Appellant returned to live with her parents. They couple subsequently maintained contact by letter and telephone. The application for entry clearance for settlement as a spouse under paragraph 281 of HC 395 was made on 10 January 2002. It was refused on 21 January 2002 primarily on the basis that the parties to the marriage had not contracted a valid marriage because, under English law, telephone marriages are not recognised when one of the parties is domiciled in the UK.
5. The Adjudicator heard the appeal on 27 January 2003. It was conceded that, as the sponsor was domiciled in the UK, a telephone marriage was not valid and an application under the Immigration Rules could not succeed. Accordingly the appeal proceeded solely in respect of Article 8. The Adjudicator dismissed the appeal on the basis that the Appellant had not established that family life existed between her and the sponsor in terms of Article 8 (1). She did not therefore go on to consider other matters under Article 8 (2). The Appellant has appealed to the Tribunal against this decision.
6. At the outset of the proceedings before us, the representatives agreed various points. Mr Jones said that he would not be challenging the medical evidence to the effect that the sponsor could not travel abroad and would not be able to do so for at least five years. Mr Mahmood accepted that there was no valid marriage under English law, and that section 77 (4) of the Immigration and Asylum Act 1999 applied, as the Tribunal decision in SK related to removals and not entry clearance cases. He also accepted that the Appellant could not succeed under the Immigration Rules and that this appeal related only to Article 8. Furthermore both representatives agreed that if the Tribunal were to accept that the Adjudicator was wrong, and there was established family life, the appeal would have to be remitted, probably to the same Adjudicator, to consider the further issues arising under Article 8(2).
7. Article 8 states as follows.

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

8. We have been referred to various authorities in relation to the applicable law in respect of the interpretation of "family life."
9. Macdonald's at paragraph 11.43 summarises the relevant law in relation to spouse applications in the following terms.

A spouse application refused on invalidity grounds could attract an appeal on human rights grounds if the parties had cohabited and family life was established, and if the refusal constituted interference with family life (because the parties could not live together in the other spouse's country of residence) which was disproportionate to the legitimate aim pursued by the decision.

10. Mr Jones submitted that this analysis of the law disposed of the appeal. The Appellant and the sponsor had been refused on invalidity grounds. The parties had never cohabited and family life was not established.
11. Mr Mahmood accepted that there were no authorities directly on the point but argued that there were indications in several cases that were relevant. He referred us first to Abdulaziz, Cabales and Balkandali v UK 919850 7 EHRR 471, where the ECHR stated

62. The Court recalls that, by guaranteeing the right to respect for family life, Article 8 "presupposes the existence of a family". However this does not mean that all intended family life falls entirely outside its gambit. Whatever else the word "family" may mean it must at any rate include the relationship that arises from a lawful and genuine marriage …. Even if a family life of the kind referred to by the government has not yet been fully established. Those marriages must be considered sufficient to attract such respect as may be due under Article 8.

Furthermore, the expression "family life", in the case of a married couple, normally comprises cohabitation. The latter proposition is reinforced by the existence of Article 12, for it is scarcely conceivable that the right to found a family should not encompass the right to live together. The Court further notes that Mr and Mrs Abdulaziz had not only contracted marriage but had also cohabited for a certain period before Mr Abdulaziz was refused leave to remain in the United Kingdom. Mr and Mrs Balkandali had also cohabited and had a son, although they were not married until after his leave to remain as a student had expired and an extension been refused; their cohabitation was continuing when his application for leave to remain as a husband was rejected.

63. The case of Mrs Cabales has to be considered separately, having regard to the question raised as to the validity of her marriage. The government argued that in the circumstances her application was inadmissible ratione materiae and thus did not have to be examined by the Court. Although this plea was framed in terms of disability, the Court is of the opinion that it goes to the merits of the application and is therefore preferably dealt with on that basis. The Court does not consider that it has to resolve the difference of opinion that has arisen concerning the effect of Philippine law. Mr and Mrs Cabales have gone through a ceremony of marriage and the evidence before the Court confirms that they believed themselves to be married and that they genuinely wished to cohabit and lead a normal family life. And indeed they subsequently did so. In the circumstances the committed relationship so established was sufficient to attract the application of Article 8."

12. Pausing at this point, we cannot see that this case is of material assistance to the Appellant. The principles stated in it are first that a genuine and lawful marriage with the intent to cohabit attracts the right to respect under Article 8, and second that even an invalid marriage, which the parties believed to be valid, followed by cohabitation, also attracts the right of respect for family life. In other words their needs to be a trigger of some substance to establish family life. It can be a genuine marriage with the intent to cohabit, or an invalid marriage with cohabitation. These propositions are not today controversial. Indeed, now even "common law" marriages, where there is no marriage at all but there is established cohabitation, are recognised as attracting the right to respect for family life. However none of this covers the situation where there has been an invalid marriage without subsequent cohabitation, as in the appeal before us between the Appellant on the sponsor.
13. Mr Mahmood then referred us to the case of Glowacka on 26 June 1997. It was unreported and he has been unable to provide us with a copy of the judgment, which rather limits the value of the reference. He told us however that it reflected the agreement of the Home Office to treat the parties to an invalid Roma marriage as if they were validly married for the purpose of family reunion. However again we cannot see that this is of any assistance to his case because if, as it would seem, the "wife" was a cohabiting dependant partner, then she would have been entitled to the benefit of the family reunion policy.
14. Next he referred us to Kroon v The Netherlands (1994) IIHLR 89. It states

30. The Court recalls that the notion of "family life" in Article 8 is not confined solely to marriage based relationships and may encompass other de facto (family ties) where parties are living together outside marriage. Although as a rule living together may be a requirement for such a relationship, exceptionally other factors may also served to demonstrate that a relationship has sufficient constancy to create de facto "family ties"; such is the case here, as since 1987 four children had been born to Mrs Kroon and Mr Zerrouk.

15. This case shows, as we have noted above, that that as a rule living together is a requirement of family life. It also shows that exceptionally other factors can create family ties. However the exceptional factors in this case were that the couple had a stable relationship, though they were not living together, as a result of which four children had been born to them. Plainly such a relationship is a very substantial trigger that effectively establishes family life and the right to respect for it. It is however very far removed from the circumstances of the appeal before us.
16. Mr Mahmood's final case reference was to Kugathas [2003] EWCA Civ 31. In paragraph 25 Arden LJ states

Because there is no presumption of family life, in my judgment family life is not established between the adult child and his surviving parent or other siblings unless something more exists then normal emotional ties. Such ties might exist if the Appellant were dependent on his family or vice versa. It is not however essential that members of the family should be in the same country. The Secretary of State accepts that that possibility may exist, although in my judgment it will probably be exceptional. Accordingly there is no absolute rule that there must be family life in the UK.

17. Mr Mahmood argued from this and that it was not necessary for the parties to family life to be in the same country and that dependency was a significant factor. However, Kugathas was in the context of a relationship between an adult child and his parents and siblings. It appears to us that the thrust of this case is that once family life has been established, as between a child and his parents and between siblings, then subsequently when the child is an adult and has moved away, even to another country, family life can in principle continue but it requires evidence of something more than just normal emotional ties, e.g. dependency. Again this case, in our judgment, is not of much assistance to the Appellant, because the issue in her appeal is whether there has been a sufficient trigger to establish family life in the first place.
18. Mr Mahmood has then argued, on the facts of this appeal, that although the marriage was invalid in the eyes of UK law, we should have regard to the cultural context and the fact that the parties and the families believed it to be valid, and that it is valid and subsisting in the eyes of Moslem law and would continue unless terminated. Unfortunately Mr Mahmood did not provide us with any legal opinion concerning the status of this marriage in Moslem law. However, whilst we can have regard to the cultural context and the belief of the parties and their families at the time that the marriage was valid, the reality is that the sponsor is a British citizen, born and domiciled in the UK. He is bound by English law and his marriage plainly is not valid. The cultural context and the alternative legal position in Moslem law cannot affect that reality. The marriage is not therefore, even given the wish of the parties to cohabit, sufficient to create in itself a sufficient trigger to establish family life under the first limb of the decision in Abdulaziz. As to the second limb of Abdulaziz, given the absence of any cohabitation, there can be no trigger to establish family life here either.
19. The next question posed by Mr Mahmood is whether the subsequent conduct of the parties, even though it does not constitute cohabitation, is sufficient to create family life when aggregated with the invalid but genuinely intended marriage. The couple have maintained contact by letter and telephone and have expressed affection for each other, which is only culturally possible because their families have arranged and approved a marriage between them. The Appellant has spent some three weeks living with the sponsor's mother in the Pakistani home of the sponsor's parents, but then returned to living with her own parents and there is no evidence of any financial support for her from the sponsor or his family. That essentially is it. Mr Mahmood has argued that the communication creates a dependency between the Appellant and the sponsor. We do not agree. There is no evidence of any financial dependency. Any other dependency requires something more tangible and substantial than the emotions expressed in correspondence between people who have never met. We conclude that the conduct of the parties since the invalid marriage is not a sufficient trigger for the creation of family life under Article 8.
20. We accept that this is an unusual case because of the sponsor's medical condition. However, for the reasons described above, we do not consider that the established principles of law enable the relationship between the sponsor and the Appellant to constitute family life in terms of Article 8, thus attracting the right to respect for it. The Adjudicator's analysis was correct and should be upheld.
21. Accordingly this appeal is dismissed.

Spencer Batiste

Vice-President