United Kingdom Asylum and Immigration Tribunal

APPEAL No. [2003] UKIAT 00189 A (Latvia)

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 29 September 2003

Date Determination notified: 29 September 2003

Before
Mr P R Lane (Chairman) Professor D C Jackson
Between

 

Secretary of State for the Home Department	APPELLANT
and
A	RESPONDENT

DETERMINATION AND REASONS
1. The Secretary of State appeals against the decision of an Adjudicator (Mr D.M. Page) dismissing his appeal against the refusal of leave to remain following refusal of an asylum application. The respondent also claimed that removal would be in breach of his human rights. Before the Tribunal the Secretary of State was represented by Mr D. Ekagha and the respondent by Mr B. Seddon of counsel, instructed by Joint Council for the Welfare of Immigrants.

The respondent's case

2. The respondent is a citizen of Latvia. On arrival the respondent had a valid passport and a visit visa. He was given leave to enter for six months as a visitor. His case before the Adjudicator was in two parts – first, that he would be at risk of persecution contrary to the Refugee Convention or ill-treatment contrary to Article 3 of the Human Rights Convention were he to be returned to Latvia, and secondly, that any return would be in breach of Article 8 of the Human Rights Convention. The first aspect of the claim was based on a fear of ill-treatment or persecution because of Armenian ethnicity and also as a homosexual. He complained of assaults by the police initially because of his ethnicity and subsequently because of a complaint he made about the initial assault. He was beaten on two occasions until he was unconscious and he received hospital treatment.
3. As to his homosexuality, the respondent's case was initially that he had been unable to reveal his homosexuality in Latvia as this sexuality was not accepted, a common conception of homosexuals being that they were mentally ill and perverted. Discrimination on this ground would be contrary either to Article 3 or Article 8 of the Human Rights Convention. In his Statement of Evidence form (submitted on 24 November 2000) he referred also the fact that he and Mrs Simon Horsler were living together as partners at the home of Mr Horsler's parents.
4. The respondent's claims were refused by letter of 15 November 2001. In that letter the Secretary of State dealt in some detail with the approach of the Latvian government to non-ethnic Latvians and gays. There was however no reference to the relationship between the respondent and Mr Horsler. The letter ended with the usual requirement of a Statement of Additional Grounds for remaining in the United Kingdom. In response to the refusal letter Mr Asatrajan filed a Statement which included further and more detailed reference to the relationship
5. The Adjudicator dismissed this aspect of the appeal. He held that on the objective evidence there was in place a sufficient system of state protection against individual criminals even if these were police officers acting without authority. From that decision there is no appeal based on the Refugee Convention and Article 3 of the Human Rights Convention.

The respondent's case under Article 8 of the Human Rights Convention

6. As we say, the respondent's case under Article 8 is based on his relationship with Mr Simon Horsler. This began in November 1999 and is continuing. The respondent asserted that this and his acceptance into Mr Horsler's family constituted family life and that if he returned to Latvia he would be unable to exercise his right to such a life. The Adjudicator allowed the appeal in relation to this claim and it is from that decision that the appeal is brought before us.

The proceedings before the Adjudicator

7. In respect of the Article 8 claim, the Adjudicator heard evidence from Mr Horsler who stressed how happy he and the respondent are together and how his family have accepted the respondent as a member of their family. If the respondent were forced to return to Latvia this would have a 'devastating effect' on him and his family. Mr Horsler would not be in a position to go to Latvia because of his occupation (a manager of a mental health rehabilitation unit) and the dependence of his parents upon him. Further, said Mr Horsler, it was his understanding that under Latvian law he would not be able to live in Latvia as a same sex partner with the respondent, he would not be allowed to live there and he did not speak the language.
8. Mr Horsler pointed out that the respondent had claimed asylum in 1998. He and the respondent had met in 1999 and had begun living together in April 2000. The refusal of the respondent's claim was not until 18 November 2001 and by that time the relationship was well developed. The acceptance into Mr Horsler's family was supported by written evidence from family members.
9. In putting the Secretary of State's case the Presenting Officer did not disagree that the respondent had established a family life with Mr Horsler but contended that as the Immigration Rules provided for an application to be made for entry clearance, the state interest in immigration control meant that the respondent should return to Latvia and apply for entry from there. The Adjudicator commented that at the time of the decision to refuse leave as the couple had not been living together for two years the respondent would not qualify under the Immigration Rules (see HC 395 para 295A(i)). The Presenting Officer countered that for that very reason any interference with family life under Article 8 would be justified.
10. The Adjudicator took the view that he was required by statute to take the date of the Secretary of State's decision as the critical date for determining the appeal. At that date, held the Adjudicator (1) there was a family life between the respondent and his partner, (2) there would be interference with that family life should the respondent be returned to Latvia but that that interference would be legitimate as an expression of immigration policy, but (3) that the interference would not be proportionate to the aims of the immigration laws and policies.
11. Any interference would be disproportionate to immigration control, first, because the delay in reaching a decision to refuse asylum encouraged the respondent and his partner form the relationship, secondly, that there were insurmountable obstacles to Mr Horsler going to Latvia including Mr Horsler's circumstances in this country, and it appearing from the objective evidence that there were no immigration rights for lesbian/gay couples in Latvia. Finally, at the date of the Secretary of State's decision Mr Astrajan was not in a position to make any application for entry clearance.

The proceedings before the Tribunal

12. The Secretary of State was granted leave to appeal on grounds which asserted that the Adjudicator had failed to consider the judgments of the European Courts in Abdilaziz v UK [1985] and the Court of Appeal judgment in Mahmood v Secretary of State [2001] ImmAR 229. In particular it was contended that, as Mr Horsler knew of the respondent's immigration status, there would therefore be no breach of Article 8 and that there was nothing to prevent Mr Horsler visiting Latvia. It was asserted that according to a Tribunal decision (Berkani [2002] UKIAT 01704) it would be difficult to envisage that removal would be in breach of Article 8 if not in breach of Article 3. Further, it is said that as the respondent's right to enter the United Kingdom depends on immigration law (and not European law) removal would not be in breach of Article 8.

The hearing before the Tribunal

Circumstances at the date of hearing

13. The case was listed before the Tribunal for 4 July 2003 but was adjourned and was heard by us on 29 September 2003. As at that date there is no contention by the Secretary of State that the relationship between the respondent and Mr Horsler is not continuing and that the respondent continues to be accepted as a member of Mr Horsler's family. On 30 July 2003 the respondent applied for extension of stay in the United Kingdom as partner of Mr Horsler.

The legal background

14. It was common ground that (i) on entry the respondent had leave to enter and the application now under consideration is for variation of that leave; (ii) the leave to enter was continued while the appeal process was in being pursuant to section 3(c) of the Immigration Act 1971 as amended by the Immigration Act 1999 Section 3. No point was made by the Secretary of State that the application for leave to remain made on 30 July 2003 was prohibited by s.3(c)(iii) as other than a variation of the initial application.
15. The Adjudicator had applied the law as it then appeared to be in deciding that the critical date for decision of matters relevant to Article 8 was that of the Secretary of State's decision. However it was also common ground that under the law as it now stood, the critical date for the Adjudicator was the date of the hearing before him (following Secretary of State v SK [2002] UKIAT 05613 (paras 19-22)). In the context of the present case, this particularly affects the weight given by the Adjudicator to the inability of the respondent to apply for entry clearance under the Immigration Rules if returned to Latvia. By the date of the hearing before the Adjudicator (3^rd September 2003) the parties had been living together for the two year period specified by the rules.
16. A further substantive error by the Adjudicator flowed from his focus on the date of decision. Mr Seddon properly and helpfully referred us to the Court of Appeal decision in R (Ekinci) v the Secretary of State [2003] EWCA Civ 765. In that case Simon Brown LJ pointed out that to accede to the kind of argument which attracted the Adjudicator would lead to 'a bizarre and unsatisfactory result if the less able the applicant is to satisfy the full requirements of entry clearance the more readily he should be excused the need to apply.' The Adjudicator may have been led down this particular path by the issues in Mahmood concerning the question of whether an applicant for entry should be made to return abroad in order to apply for entry clearance instead of the application being considered while he was in the United Kingdom. The essence of that case was, however, the converse of that on which the Adjudicator apparently placed weight i.e. that the applicant would be highly likely to succeed in any entry clearance application. It is only in those circumstances that the question of whether removal or refusal of leave to remain is disproportionate requires the balancing of the need to maintain immigration control and the particular circumstances of the case given an applicant's circumstances and the consequences which may flow from a need to apply from abroad.
17. However, as Mr Seddon argued the principles underlying Mahmood have limited application to the present case. The respondent has always been in this country with leave and at all times entitled to apply to remain within the ambit of his original application to do so. As we have said, no contention was made that an application to remain as Mr Horsler's partner fell outside that ambit.
18. In these circumstances the rationale of Mahmood leads at most to a contention that the respondent should put his case (whether under or outside the rules) to the Secretary of State. And this formed the principal submission of Mr Ekhaga.
19. The requirements of the Immigration Rules relevant to leave to remain for the respondent are set out in paragraph 295D. Mr Ekagha contended that the respondent had not made any application for leave to remain under or outside the rules until 30^th July 2003 and unless the Secretary of State was given an opportunity to consider it, this rendered the rules useless. The Tribunal should not prejudge the results of that application.
20. Mr Seddon countered by arguing that under the decision in S K the matters regarding Article 8 should be looked at as at the date of hearing. The Secretary of State could not require further consideration of matters relevant to Article 8 through reliance on the applicability on the immigration rules. Mr Seddon pointed out that the respondent had made it clear to the Secretary of State in his Statement of Evidence form relevant to his asylum claim (submitted on 24 November 2000) that at least in part his plea to remain in the United Kingdom was based on a continuation of his relationship with Mr Horsler and Mr Horsler's family. Further, in his statement of additional grounds on 22 November 2001, the appellant had plainly indicated that continuation of the long term relationship formed part of the additional grounds for remaining in the United Kingdom.
21. In his comprehensive and helpful skeleton argument, Mr Seddon asserted that as the Secretary of State had not considered the question of proportionality, it was open to the Adjudicator to make that assessment – citing for that proposition Razgar v Secretary of State [2003] EWCA Civ 840 and two other cases considered in that case (Blessing Adore v Secretary of State [2003] EWCA Civ 716 and Ala [2003] EWCA 521). However, the focus of the courts in discussing the appellate jurisdiction to make an assessment of proportionality was findings of fact by an Adjudicator causing the Secretary of State's consideration of the matter to become irrelevant or otiose.
22. Where the Secretary of State has not considered the matter, there is a view that the Appellate Authority should not interfere with the primary role. While that argument has force, in our view that force will vary according to the circumstances of the case, and included in those circumstances are (1) any delay which has occurred in considering the initial application (and therefore providing the background to developing of a relationship as in this case); (2) whether any application was made or the matter was drawn to the Secretary of State's attention prior to the decision on a claim other than that based on Article 8; (3) the underlying principles of the 'one-stop' appeal process; (4) the likelihood of compliance with the immigration rules and the relevance to the application of the discretion of the Secretary of State. We return to this matter below.

Submissions as to the respondent's case

23. Mr Seddon dealt with the substantive case for the respondent under Article 8, commenting that the Secretary of State had not challenged the Adjudicator's findings as to the existence of 'family life' or that refusal of leave to remain would be an interference with that or with the private life of the respondent. Mr Seddon referred in some detail with the Adjudicator's approach to the substantive questions and to matters raised by the Secretary of State in his grounds of appeal. In particular Mr Seddon pointed to the Adjudicator's finding that there were 'insurmountable obstacles' to Mr Horsler's returning to Latvia with the respondent and his knowledge of the respondent's immigration position. He drew our attention to the full context of the citation from Berkani v Secretary of State, relied on by the Secretary of State, and pointed to the fact that any conclusion that treatment in a foreign country would not be contrary to Article 8 if not contrary to Article 3 did not apply where there was family life in this country.
24. In dealing with matters which arguably undermined the Adjudicator's determination, Mr Seddon sought to play down the impact of any relevance of any weight given by the Adjudicator to the respondent's inability to obtain entry clearance and the focus on the date of decision. In any event, said Mr Seddon, it followed from the respondent having leave to remain that there was no 'immigration imperative' to require the respondent to return to obtain an entry clearance.
25. Mr Seddon urged us to uphold the Adjudicator's determination. If we were minded to set it aside then we should dismiss the Secretary of State's appeal bearing in mind the various factors which were accepted by the Adjudicator and not challenged by the Secretary of State and the arguments put forward in relation to the irrelevance of the ability to obtain entry clearance.
26. At the hearing Mr Ekagha did not advance any arguments in support of the grounds of appeal or that the substantive case made by the respondent lacked foundation save to assert that the respondent could return to Latvia. As it was said, Mr Ekagha's primary submission was that the respondent had not made any application for leave to remain until long after the date of decision. In order to give force to the Immigration Rules the appeal should be dismissed to allow the Secretary of State to consider that application.

Conclusions

The sustainability of the Adjudicator's determination

27. We are unable to agree with Mr Seddon that the two errors of law which affected the Adjudicator's determination are of such little weight that the determination can simply be upheld on the basis of other factors to which the Adjudicator gave force. It is always difficult to separate a particular aspect of an Adjudicator's reasoning when reliance is placed on different factors. In this case the Adjudicator gave considerable emphasis to the factor of the respondent not being able to obtain entry clearance. As pointed out in Ekinci, this is a fundamental error. It follows that the appropriate date for the decision as to the claim based on Article 8 is, if the Tribunal considers proportionality substantively, the date of the hearing before us.

Consideration of proportionality?

28. The question of whether the matter should be considered substantively has two aspects – the relevance of (i) the lack of any substantive consideration by the Secretary of State of the various factors relevant to Article 8 and (ii) the lack of any express application for leave to remain on grounds other than Article 8 by the date of decision.

(i) At the date of decision and at all hearing dates in the appellate process, Mr Asatrajan had (and has) leave to be in this country. He was therefore entitled to apply to extend that leave and at most (to borrow Mr Seddon's phrase) any immigration imperative would be not to consider the matter substantively until the Secretary of State had considered the express application for leave to remain on the basis of the relationship with Mr Horsler. Secondly, there has been a considerable delay in consideration of the asylum application and hence, as is asserted by the respondent, provision and opportunity for the relationship with Mr Horsler to become established. Thirdly, the Appellate Authorities have no power to direct the Secretary of State to consider an application and the very fact of the delay in this case is hardly an encouraging sign in relation to any hope that the matter would be considered speedily. Fourthly, it seems to us plain that the Secretary of State was on notice prior to the decision of the respondent's part reliance on his relationship with Mr Horsler. Fifthly, any allowing of this appeal in order for the matters to be considered by the Secretary of State would be directly contrary to those principles advocated by the Secretary of State in legislation introducing the 'one stop' appeal process. Nothing could be more curious than requiring an appellant to state additional grounds of appeal and then to urge adjournment to allow further administrative consideration .

(ii) The argument by Mr Ekagha that any substantive decision by the Tribunal would in some way undermine the force of the Immigration Rules seems to us to be misplaced, given the Human Rights Act 1998. The rights under that Act are no more and no less than the rights under the Immigration Acts or Immigration Rules. An appellant is as entitled to rely on any claim that the decision is in breach of his human rights as he is on a claim which is made on the basis of the Immigration Rules. The two types of claim are obviously not distinct, the very existence of Immigration Rules and compliance with them having an impact on whether any action taken is disproportionate. So the issue is not an undermining of the rules but which body should decide on their applicability and relevance to any human rights claim.

29. There is no doubt that the appellate authorities have jurisdiction to decide whether there is compliance with the rules even if the Secretary of State has not considered an applicable rule. Whether the jurisdiction should be exercised depends on the particular case, generally relevant factors being the legitimate expectation of an application that if there is compliance with the rules a claim will be recognised and the power of the appellate authorities to declare a substantive right based on such expectation (see e.g. Arezi [2002] UKIAT 07694). Added to those in this case are the factors listed in paragraph 28(i) above in the context of non consideration of the Article 8 claim by the Secretary of State.
30. An important element in these factors is the dependence of any successful claim on the discretion of the Secretary of State. In this case, when this matter reaches us, the relevance of that discretion outside the rules would be relevant only if the rules so provide or the respondent does not comply with the rules. In deciding whether the Tribunal should itself consider proportionality we first consider therefore the likely application of the rules under the claim.
31. Mr Ekagha did not advance any argument or contend that the various requirements of the Immigration Rules were not met although he did say that this was a matter primarily for the Secretary of State. The requirements of the rules are :

'295D The requirements to be met by a person seeking leave to remain as the unmarried partner of a person present and settled in the United Kingdom are that:

(i) the applicant has limited leave to remain in the United Kingdom; and

(ii) any previous marriage (or similar relationship) by either partner has permanently broken down; and

(iii) the applicant is the unmarried partner of a person who is present and settle in the United Kingdom; and

(iv) the applicant has not remained in breach of the immigration laws; and

(v) DELETED

(vi) the parties have been living together in a relationship akin to marriage which has subsisted for two years or more; and

(vii) the parties' relationship predates any decision to deport the applicant, recommend him for deportation, give him notice under Section 6(2) of the Immigration Act 1971, or give directions for his removal under section 10 of the Immigration and Asylum Act 1999; and

(viii) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which the own or occupy exclusively; and

(ix) the parties will be able maintain themselves and any dependants adequately without recourse to public funds; and

(x) the parties intend to live together permanently.'

32. Insofar as the requirements are relevant to the respondent's case, first they leave little room for any discretion to be exercised, even within the rules. On the facts of the case it is plain that the requirements (i), (iii), (iv) and (vii) are satisfied. Insofar as any assessment of evidence is required in relation to requirements (vi), (viii), (ix) and (x) it is plain that on the evidence that these are also satisfied. Indeed, there has never been any contention otherwise.
33. It seems to us that it would be grossly unfair to the applicant and against the public interest to allow this appeal in order to leave it to the Secretary of State to carry out the task of assessment of the evidence when that evidence can rationally lead only to one conclusion. Not only would there be further delay and an increase in the already considerable workload of the decision takers of the Immigration and Nationality Directorate, it would, as we see it, be contrary to the spirit and philosophy of the one-stop appeal process and the focus on the date of the appellate decision as the date for deciding any question of human rights. The fact that the relationship on which the application is based was before the Secretary of State prior to the decision being taken, simply underlines the lack of substance in any case for the matter to be left for further consideration.

Would return be contrary to Article 8?

34. There was no argument put before us that the respondent was not enjoying a family (or private) life in this country or that the refusal of leave to remain would be an interference with that life. The question therefore is as to whether that interference was proportionate and in particular, as in so many of these cases, whether the interest in immigration control makes the interference proportionate.
35. We have set out above the factors, apart from the question of the lack of ability to obtain entry clearance, which the Adjudicator took into account in deciding that any interference with the right would be disproportionate. No argument was put to us against the relevance of the importance of any of the factors set out. It seems to us quite unrealistic to envisage the return of the respondent to Latvia together with Mr Horsler because of the view taken in Latvia of homosexuality, and Mr Horsler's commitments in this country. The period taken for deciding the asylum application plays its part in meeting any weight to be given to the fact that the relationship continued even though Mr Horsler knew of the respondent's immigration status. There has been no attempt by the respondent to avoid immigration control and he did not enter and has never been in this country without leave.
36. For these reasons the appeal by the Secretary of State is dismissed.
D.C. JACKSON LEGAL MEMBER