APPEAL No .SS (ECO -Article 8) Malaysia  UKIAT 00091
Date of hearing: 19th February 2004
Date Determination notified: 29th April 2004
|Entry Clearance Officer, Kuala Lumpar||RESPONDENT|
"To assist me in the assessment of the discriminatory measures in Malaysia there was before me a copy of the US State Department Report of 1998 together with two reports on religion from the US Department of State of 1999 and 2000. I note from the US State Department Report of 1999 that religious freedom was subject to some restrictions and in particular the right of Muslims to practice beliefs other than Sunni Islam. The right of Muslims to change their religion face many practical obstacles. Longstanding policies give preferential status to ethnic Malays and other indigenous people in business, education and other areas and some discrimination against indigenous people in ethnic minorities and some restrictions on worker rights persisted. However the constitution does prove for freedom of religion and religious minorities which include large Hindu, Buddhist, Sikh and Christian communities who generally worship freely although with some restrictions. Adherence to Islam was considered intrinsic to Malay ethnic identity and therefore Islamic religious laws administered by the state authorities to Islamic courts bind all ethnic Malays in some matters. But the government has not imposed Islamic religious law beyond the Muslim community. The government generally respects non-Muslims' rights of worship but the state government carefully controls the building of non-Muslim places or worship and the allocation of land for non-Muslim cemeteries. The right of a Muslim to leave Islam to adhere to another faith is a very controversial question and in practice it is very difficult for a Muslim to change religion. However in August 1998 the government had stated that apostates would not face punishment as long as they did not defame Islam after their conversion. Whilst for a long time the government has discouraged and in practical terms forbidden the circulation in peninsular Malaysia of Malay language translations of the Bible and distribution of Christian tapes and printed materials in Malay, Malay language Christian materials can be found. I note from the US state Annual Report on International Religious Freedom for 1999 in Malaysia that in 1991 8% of the population were Christian and only 59% Muslim. In societal attitudes at Section II of this report it stated that the country's various believers generally live amicably.
The report of 2000 stated that for ethnic Malays the right to leave the Islamic faith and adherence to another religion was a controversial question and in practice it was difficult for Muslims to change religions. In March 1999 the country's highest court ruled that secular courts had no jurisdiction to hear applications by Muslims to change religion and that the religious conversion of Muslims was solely the jurisdiction of Islamic courts. It noted that if the High Court continued to affirm that ruling in future cases it would make conversion of Muslims nearly impossible in practice. The same report still confirmed that apostates would not face government punishment as long as they did not defame Islam after their conversion.
It is clear from these US State Department Reports therefore that there is a sizeable Christian community in Malaysia and that whilst conversion may be coming more difficult the communities continue to live peacefully together and there are no harsh penalties for apostates provided they do not defame Islam. The expert report of Andrew Harding confirmed that Malaysia's population was multi-racial and multi-religious and the Muslims formed only about 55% of the population. I note from the appellant's evidence that his mother had converted to Christianity in 1972 and he was born and raised in the Christian faith. I noted that there is evidence before me from the appellant that he was bullied and discriminated at school because he was a Christian but the background evidence before me indicates that the communities do live peacefully together."
"He explained that he had concentrated on looking for positions with non-Malay companies and international companies but prejudice discrimination and intolerance of apostates and the children of apostates were evident in Malaysia.
There was a schedule at page 180 of the bundle showing the numerous positions applied for by the appellant since July 2001 until June 2002. There was no further evidence to corroborate the appellant's assertion that he had applied for these jobs or had in fact been rejected as he had suggested. I note that the appellant had applied for various positions in Malay, non-Malay and international companies and whilst he had been unsuccessful in the majority of applications, since April 2002 there were applications pending although no further evidence was placed before me as to whether the appellant had been successful in any of these job applications."
"I note the appellant's endeavours to obtain employment in Malaysia. I noted that he obtained a third class honours in geography from the University of Sheffield which is of course an achievement in itself but does not immediately make him obviously suited to any position of employment as the degree is not vocationally linked. No evidence was placed before me as to what other commercial or professional experience the appellant had but I accept that he is encountering difficulties in finding employment which he wishes to undertake."
"I was told that he was living in a room in a house in Kuala Lumpur where he had access to a kitchen and a bathroom. I am not persuaded on the background evidence that the discrimination such as it may exist in Malaysia can be said to reduce the appellant to be living in the most exceptional compassionate circumstance. I accept that Islam is the predominant religion in Malaysia but there is a significant Christian community in that country. The appellant himself, a Christian since birth, has been living in Malaysia for the majority of his life, apart from the time that he studied in the United Kingdom. His mother chose to continue to reside in Malaysia with her husband until they decided to leave because of his pending retirement. Whilst it was asserted at the hearing that they had all suffered from discriminatory practices in Malaysia the family did continue to live in that country. He has the good fortune that his stepfather is in the position to be able to support him. His parents and siblings may be living overseas but those were choices made out of volition and not unilaterally imposed on the family."
"… the son, daughter, sister, brother, uncle or aunt over the age of 18 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom."
"I find the appellant's mother's evidence in this regard to be somewhat inconsistent. She has asked me to have regard to the fact that she was worried about her son but she had voluntarily chosen to live in Malaysia whilst her son was in the United Kingdom. Whilst she is not resident in the United Kingdom, voluntarily, her son, the appellant, is in Malaysia. There is no reason as to why she cannot visit him on a regular basis. The choice of the appellant's mother and stepfather is one of choice to reside in the United Kingdom. They do have rights of residence in Malaysia and I am not persuaded on the testimony before me that the family could not continue to live in Malaysia as they have done in the past."
We were told that her anxieties for her son at that period were obviously less because he was safe in England and his brother had been in Sheffield for some of that time.
"Relevant to this consideration is whether there are insurmountable obstacles to relevant family members enjoying their family life elsewhere".
There was some criticism that she had elevated that into an overriding test. She continued:
"There is no credible evidence before me as to why the appellant's mother and stepfather could not have continued to reside in Malaysia.
The appellant's evidence is that he is a healthy young man looking for work in Malaysia. There as no evidence that he had particular reasons of health or of mental or emotional immaturity for his relationship with his mother and stepfather to require an ongoing dependency.
Under Article 8 there is no general obligation on a state to admit family members of those within their jurisdiction. There is no real obstacle to the appellant and his mother re-establishing their family life in Malaysia. Whilst I heard evidence as to why the appellant's mother wished to live in the United Kingdom with her husband who is a British citizen and she of course herself has indefinite leave to remain, this is her choice."
"The only real issue in this appeal is whether the exclusion of the appellant is proportionate. The appellant is now aged 24. He has been educated and is supported by his stepfather. He has hopefully by now found a job in Malaysia but there was no up-to-date evidence of that before me. On the evidence before me his mother and stepfather can continue to return to Malaysia to visit and/or reside with him. They may exercise their choice to live in either Malaysia or the United Kingdom."
The scope of the appeals
"In consideration of this appeal I have had regard to the appellant's rights and entitlements only. If the appellant's mother or stepfather or any other witnesses considers that exclusion of the appellant would amount to a violation of their rights then they are perfectly at liberty to take proceedings under Section 6 of the Human Rights Act 1998 themselves."
"It would normally be the position that the combination of the provisions of the Immigration Rules and extra-statutory policy and discretion would provide a proportionate basis for any interference with or lack of respect for family life in the light of the well-established right of a state to control entry, whether or not that is to be regarded as a free-standing restriction on the scope of Article 8 or as failing within the qualification in Article 8(2). Those provisions represent what the State, in part with express Parliamentary approval and in part through the executive, have thought fit provisions for the entry into the United Kingdom of those who have some form of family life with someone established here. As Edore v SSHD  EWCA Civ 716,  INLR 361 holds, the question of whether an interference or lack of respect is proportionate to the need for control over immigration and for the maintenance of the system for its enforcement, is a matter for the Secretary of State's judgment in the first place and it is only reviewable if it is outside the range of responses reasonably open to him. It would be the exceptional case where circumstances fell outside the Rules and the compassionate discretionary policy, and yet were such that exclusion was an unreasonable response by the Secretary of State."
Post decision events
The substantive merits of the appeals
"42. It seems to us that the answer to the existence of Article 8 rights for those outside the United Kingdom is to be found in the way in which the jurisprudence of the ECtHR has developed over time in relation to various areas of human experience, here the entry of non-nationals to a country. It is not always possible to trace a clear line of reasoning from Article 1 through the various decisions which that Court has reached so as deduce the principles which apply. The decisions are not always consistent nor do they deal with some of the problems which might be thought to stand in the way of the result reached. Ullah illustrates the problems of some of the reasoning in Soering v United Kingdom  11 HRR 439, and then with the basis upon which Chahal v United Kingdom  23 EHRR 413 was said to be consistent with it. Similar problems are in respect of the ECtHR approach to entry cases. But, rather than hunting for a clear line of reasoning or principle, which deals with the effect of Article 1, a line which seems unlikely to exist, the better solution is the more pragmatic one of looking to see what has been decided by that Court and domestically in relation to this particular area.
43. The issue was discussed in Ullah in paragraphs 41-47 as part of the more general discussion of Article 8. In particular, the Court was of the belief which we regard as well-founded, that Article 8 has been invoked, but only successfully in an immigration case, including refusal of entry where that "has impacted on the enjoyment of family life of those already established within the jurisdiction". The Court referred to its review of the cases in Mahmood. It noted that the basis of the ECtHR decision in Abdulaziz, Cabales and Balkandali v United Kingdom  7 EHRR 471 was that the applicants were established within the jurisdiction and complained that they were being deprived of the company of their husbands who were not within the jurisdiction; the right of the State to control entry acted as a free-standing restriction on Article 8 rather than being a legitimate aim within Article 8(2). Later ECtHR cases, such as Bensaid v United Kingdom  33 EHRR 10,  INLR 325, treat immigration control as falling within that qualification. It appears to have been assumed or decided in both Kugathas and Ekinci, that the effective trigger for the existence of Article 8 rights, enforceable against the United Kingdom by non-nationals who are outside it, is the existence of family life with those who are established in the United Kingdom.
44. We have already referred to Sen v Netherlands and Ahmut v Netherlands, both of which are consistent with what the Court of Appeal said in Ullah about the need for the family relationship, of those relying on Article 8 as a basis for entry, to be with someone who was established in the United Kingdom in order for them to have Article 8 rights in respect of family life which are enforceable against the State with which they are seeking entry.
45. Accordingly, we consider, on the basis of ECtHR jurisprudence and Ullah, that the existence of family life with someone who is established in the United Kingdom provides the basis for the existence of Article 8 rights, enforceable against the United Kingdom and is the basis for the examination of whether that life is interfered with or shown a lack of respect. This may reflect a developing ECtHR jurisprudence from the position in Abdulaziz. Such an approach would reflect what the Court of Appeal seems consistently to regard as the position. (We have some reservations about the basis upon which Ms Hanrahan conceded the point because the short comment in Mahmood may have been overtaken by the greater consideration of the issue of jurisdiction in Ullah.) It does, however, represent an ad hoc extension of the Convention, but it is not as wide as that which would arise from full acceptance of the appellant's submissions. But is also makes some sense of the jurisdictional provisions in the 1998 Act, with the Parliamentary assumption seen as having some basis."
MR JUSTICE OUSELEY