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Cite as: [2004] UKIAT 160, [2004] UKIAT 00160

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APPEAL No. DG (Article 8, father's access to child) Turkey [2004] UKIAT 00160

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 9 June 2004

Date Determination notified: 21 June 2004

Before

Mr P R Lane – Vice President

Ms S S Ramsumair JP

Mr M J Griffiths

Between

Secretary of State for the Home Department	APPELLANT
and
DG	RESPONDENT

For the Appellant: Mr C Dewison, Senior Home Office Presenting Officer

For the Respondent: Mr M A Siddique, Solicitor, of Howe & Co Solicitors

DETERMINATION AND REASONS

The Appellant, who is the Secretary of State for the Home Department, appeals with permission against the determination of an Adjudicator, Mr D A Kinloch, sitting at Taylor House, in which he allowed on Article 8 grounds the Respondent's appeal against the decision of the Secretary of State on 24 December 2002 to give directions for the Respondent's removal from the United Kingdom as an illegal entrant.

Both parties to this appeal were informed by notice sent on 25 November 2003 that permission to appeal to the Tribunal had been granted. By rule 19(2) of the Immigration and Asylum Appeals (Procedure) Rules 2003, the Respondent, if he wished to apply for permission to appeal to the Tribunal against the Adjudicator's Determination, had ten days within which to do so, following receipt of that notice.

In his determination, the Adjudicator had dismissed the Respondent's appeal on asylum grounds. No Respondent's notice was filed within the prescribed period.

By a letter dated 20 May 2004, Messrs Howe & Co., on behalf of the Respondent, submitted a Respondent's notice. As can be seen, this was very substantially out of time. It should also be mentioned that no alternative period for the filing of the Respondent's notice had been directed by the Tribunal pursuant to rule 19(2)(a).

Notwithstanding this, the effect of rule 19(2)(a) is to enable the Tribunal, if it considers the interests of justice so require, to accept a late Respondent's notice, even (as in this case) on the day of the appeal hearing itself. Accordingly, the Tribunal invited submissions from the parties' representatives as to whether it should do so in the present case.

Having heard those submissions, the Tribunal decided not to admit the Respondent's notice. Our reasons were as follows. First, insofar as the Respondent's notice comprises a criticism of the Adjudicator's determination on the evidence that was before him, the Tribunal was given no adequate explanation as to why the Appellant saw fit to let months go by, before submitting the notice. At paragraph 16 of his determination, the Adjudicator makes it plain that he had had regard to relevant case law, in particular the Tribunal Determination in ACDOG [2003] UKIAT 00034, in assessing risk on return. The Respondent's involvement with HADEP was, as the Adjudicator noted, at a low level and, although he had been relatively briefly detained and, indeed, ill-treated whilst in such detention, the Adjudicator did not consider that the Respondent's background on return would give rise to a real risk of treatment that would "amount to persecution" (paragraph 18).

That conclusion was open to the Adjudicator as a matter of law, on the evidence before him.

The Respondent's notice also sought to attack the determination by reference to materials contained in the October 2003 and April 2004 Home Office CIPU Reports on Turkey, regarding the nature of the information systems available to the immigration authorities in that country.. In summary, Mr Siddique submitted that some brief references in the April 2004 Report, emanating from the Swiss Organisation for Refugees, suggested that the GBTS central computer system might not be the only information-gathering system available to those officials. As a result, even though the Respondent had been released without charge, following periods of detention, it was possible that a record of those detentions would be available to the authorities at Istanbul airport.

The first point to note with regard to this aspect of the Respondent's notice is that the Adjudicator determined the asylum appeal prior to the publication in October 2003 of detailed information regarding the scope of the GBTS system. Accordingly, the Adjudicator's determination does not turn on what would or would not be available to immigration authorities, by way of records on the Respondent.

In any event, both the quotations from the Swiss Organisation for Refugees (the context of which is entirely unclear) and the other materials submitted by Mr Siddique failed to show that an appeal against the Adjudicator's decision on asylum grounds stood a real prospect of success. Not only is there nothing in the materials to show that a record of the kind of detention undergone by this Respondent would be recorded, let alone in a form available to the immigration authorities, certain of the materials in fact point in the opposition direction. In particular, we observe that a report from Sedat Gunec in Ankara dated 1 February 2004, published by "Zaman On Line," observes that police and gendarmerie records are in the process of being "destroyed", with the aim of putting all "criminal records" including "arrest warrants" on what is manifestly the GBTS computer system, as described in the CIPU Reports. There is no reference to records of detention going onto the system. The exercise is said to be part of the "reforms to adapt Turkey to European Union (EU) standards".

Mr Siddique submitted that there might be other agencies such as State security officials, who would still have separate records. That may be so, but it in no sense means that a record on a low-level HADEP sympathiser, such as the Respondent, would be held by any such organisation.

Accordingly, the Tribunal found that the issues sought to be raised in the Respondent's notice, if permitted to form the grounds of appeal against the Adjudicator's asylum decision, disclosed no real prospect of success.

We turn now to the Article 8 appeal of the Secretary of State. The factual position in this regard is as follows. The Respondent met and married in August 2000 a Turkish lady who had been living in the United Kingdom for some time and who had been granted indefinite leave to remain there. The parties met whilst that lady was on holiday in Turkey. According to paragraph 20 of the determination, she then returned to the United Kingdom. At some point, which must have been during a subsequent meeting of husband and wife in Turkey or, in any event, outside the United Kingdom, a child was conceived. A baby girl was born to the mother in the United Kingdom on 31 March 2002. According to Mr Siddique, the Respondent had at some point applied for leave to enter the United Kingdom, presumably to be with his wife. That application had, apparently, failed, but Mr Siddique was unable to provide any further information in that regard. What is, however, clear is that the Respondent entered the United Kingdom illegally by lorry on 17 October 2002 and decided to claim asylum approximately one week later. As we have already noted, although the Adjudicator accepted that the Respondent was a HADEP sympathiser who had previously been detained, the Respondent's asylum appeal was dismissed by the Adjudicator.

At paragraph 21 of the determination, we observe that the Respondent and his wife "only lived together for about six months, separating in May or June 2003". Since that time, the Respondent has been seeing his daughter at least once a week. He told the Adjudicator that "his wife is keen for him to get to know his daughter better". The wife, however, does not appear to have given oral evidence before the Adjudicator.

At paragraph 23, the Adjudicator acknowledged that

"It is against the [Respondent] that at the time he married his wife he must have known that it was unclear if, and when, he would be allowed to join her in the UK. It is against him that with this knowledge the parties proceeded to have a child. It is, I think, against him that the [Respondent] has now separated from his wife and is living alone, and is being forced to live apart from his daughter, which perhaps lessens the strength of his family ties".

Paragraphs 24 and 25 of the determination are worth quoting in full:-

"24. On the other hand, I think there have to be very strong reasons for separating a father from his child. I do not think it is realistic to suggest that the [Respondent's] wife could go and live with their child in Turkey, especially as they have now separated. It is possible that if the [Respondent] were to return to Turkey his daughter could go there on holiday so that he could see her. However, he would have no guarantee that this would happen.

25. I have come to the conclusion that it would be too severe a step to take to separate the [Respondent] from his child in order to maintain Immigration controls. I reach this conclusion with some hesitation in view of the various factors against the [Respondent] as outlined above, but I think that the desirability of a parent maintaining contact with his child outweighs these factors. I accordingly think that it would be a breach of his right to a family life here to remove the [Respondent]".

Insofar as the Secretary of State's grounds of appeal assert that the Adjudicator was not entitled as a matter of law to find that a family life subsisted between the Respondent and his daughter, we find that those grounds lack merit. We accept, as the Adjudicator did, that the Respondent sees the daughter regularly, and is keen to continue to do so.

Where the Adjudicator plainly fell into error, however, is at paragraph 24 of the determination, where the inexorable logic of his conclusion is that failed applicants for asylum who have separated from their wives and children, but who are anxious to maintain contact with the latter, are, in the absence of any special circumstances, entitled to rely upon Article 8 of the ECHR in order to nullify any attempt to remove them in pursuance of the Secretary of State's policy of immigration control.

In attempting to support the Adjudicator's conclusions, Mr Siddique relied upon Blessing Edore [2003] EWCA Civ 716. There are, however, significant differences with that case, as is apparent from a reading of paragraph 7 of the judgment of Simon Brown LJ. The forging of the family life of Ms Edore had taken place entirely in the United Kingdom, where she had resided (albeit for the most part unlawfully) since 1990. Two children had been born to her and Mr Okadiegbo. That gentleman, whilst not co-habiting with Ms Edore, maintained a continuing relationship with her. Mr Okadiegbo supported the family of Ms Edore and her children financially. Not only Ms Edore, but also her two children, would have been compelled to leave the United Kingdom, had her removal gone ahead. The children themselves had been found to be "emotionally dependent" upon Mr Okadiegbo who provided "a stable influence" in their lives.

At paragraph 26 of his judgment, Simon Brown LJ categorised the circumstances of the case as "highly unusual". At paragraph 27, he considered that "there may not be many…occasions" in which the decision reached by the Secretary of State could be said to be "outside the range of permissible responses open to him" but the instant case "was one of them".

The facts of the case before us are starkly different. The Respondent saw fit, not only to embark upon marriage, but also to father a child, in circumstances where he and his wife were resident in different countries and where it was entirely uncertain whether the couple would ever be able to co-habit. When such co-habitation occurred, following the Respondent's illegal entry to the United Kingdom, it lasted a remarkably short time. There is no suggestion of any continuing relationship between the Respondent and his wife, otherwise than in relation to the daughter, who was barely a year old when the couple decided to separate.

The Respondent served a witness statement dated 17 May 2004, in which he states that his daughter "is very attached to me and cries when she leaves me" and that "she is everything to me and it would destroy my life if I were not able to see her whenever I please".

The Tribunal has taken this statement into account, in comparing the facts of the present case with those of Edore.

Paragraphs 4 and 5 of the grounds of appeal submit that the Adjudicator has not paid proper regard to the fact that the Respondent's wife could bring the daughter to Turkey from time to time in order to see her father. The statement of May 2004 seeks to counter this by stating that "my wife is not working at present and would be unable to afford to send my child to Turkey or a third country, even if she were willing to do so". No proper evidence in respect of the wife's position has, however, been submitted.

In any event, as Mr Dewison submitted by reference to paragraph 5 of the grounds, the Adjudicator entirely failed to have regard to the fact that it is open to the Respondent to seek to visit his daughter in the United Kingdom. There are two ways in which this could occur. First, it would be open to the Respondent to make an application for a family visit to the United Kingdom, for the purposes of visiting his daughter. Secondly, and in the Tribunal's view even more significantly, paragraphs 246 to 248F of the Immigration Rules (HC 395) provide a mechanism whereby a person can be given leave to enter the United Kingdom and, thereafter, to remain and obtain indefinite leave, for the purpose of exercising access rights to a child resident in the United Kingdom.

As regards visits, the Respondent in his statement contends that "it is unlikely that I would ever be able to return to this country to visit". That is, however, speculation. Were the Respondent to apply to the Entry Clearance Officer for leave to enter as a visitor for the purpose of seeing his daughter, that application would have to be considered in the light of the relevant Immigration Rules and the Human Rights Act 1998. Mr Siddique also submitted that, on the findings made by the Adjudicator, it was likely that the Respondent would on return be compelled to undertake military service in the Turkish armed forces. Many families, however, have to endure separation whilst adult members are serving in the armed forces, whether or not as a result of conscription. No evidence has, in any event, been submitted to show that the Turkish authorities would prohibit the Respondent from making a visit to his daughter during any period of military leave.

Paragraph 246 of the Immigration Rules lays down certain requirements to be met by a person seeking leave to enter the United Kingdom in order to exercise access rights to a child. These include producing evidence that the applicant has a Residence Order or Contact Order granted by a Court in the United Kingdom or a certificate issued by a district judge confirming the applicant's intention to maintain contact with the child. The applicant must also show an intention to continue to take an active role in the child's upbringing and there must be adequate accommodation and maintenance for the applicant and any dependants, without recourse to public funds.

Insofar as the Respondent asserts that he may be unable to meet these requirements in practice, what Phillips MR has to say at paragraph 65 of the judgments in Mahmood [2000] EWCA Civ 315 is relevant: the possibility that his application may not succeed is not a reason for excusing him from the requirement to make an application from outside the United Kingdom. We would further add that, in the context of any such application, the Entry Clearance Officer, just as with a visitor application, will have a duty to reach a decision which is compliant with the Human Rights Act 1998.

Mr Siddique submitted that it was not reasonable to have expected the Adjudicator, of his own motion, to have been aware of paragraphs 246 et seq of the Immigration Rules, particularly since the Secretary of State had chosen not to be represented before the Adjudicator. We rejected that submission. Those provisions are part of the statutory framework of immigration law. It cannot possibly be right for the Tribunal to allow the Adjudicator's determination to stand on that basis. In fact, the paragraph 246 issue has already been the subject of a reported case- Talha Ahmed [2002] UKIAT 01757.

In any event, even on the basis upon which he approached the matter, the Adjudicator, as is plain from paragraph 25 of his determination, has asked himself the wrong question. Instead of considering whether the Secretary of State's decision to remove the Respondent was within the range of permissible responses open to the Secretary of State (whether or not the Adjudicator would himself have so responded), the Adjudicator appears from paragraph 25 to have himself carried out the "balancing" exercise inherent in Article 8(2), and to have concluded "with some hesitation" that the balance fell in favour of the Respondent.

As the Tribunal has explained in DM (HDZ) Croatia* [2004] UKIAT 00024:-

"The starting point should be that if in the circumstances the removal could reasonably be regarded as proportionate, whether or not the Secretary of State has actually said so or applied his mind to the issue, it is lawful. The Tribunal and Adjudicators should regard Shala, Edore and Djali as providing clear exemplification of the limits of what is lawful and proportionate. They should normally hold that a decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances. However, where the Secretary of State, e.g. through a consistent decision-making pattern or through decisions in relation to members of the same family, has clearly shown where within the range of reasonable responses his own assessment would lie, it would be inappropriate to assess proportionality by reference to a wider range of possible responses than he in fact uses. It would otherwise have to be a truly exceptional case, identified and reasoned, which would justify the conclusion that the removal decision was unlawful by reference to an assessment that removal was within the range of reasonable assessments of proportionality. We cannot think of one at present; it is simply that we cannot rule it out". (Paragraph 28).

The facts of this case are far from making it a "truly exceptional case", of the kind described in DM.

This appeal is allowed.

P R LANE

VICE PRESIDENT