United Kingdom Asylum and Immigration Tribunal

TK (Immigration Rules –policy-Article 8) Jamaica [2007] UKAIT 00025

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 13 February 2007

Date Determination notified: 12 March 2007

Before

SENIOR IMMIGRATION JUDGE CHALKLEY

SENIOR IMMIGRATION JUDGE P R LANE

Between

TK	APPELLANT
and
ENTRY CLEARANCE OFFICER, KINGSTON	RESPONDENT

For the Appellants: Mr M Harris, Counsel, instructed by Messrs Barnes Harrild & Dyer Solicitors For the Respondent: Mr G Saunders, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

The policy of the Secretary of State, to which the Immigration Rules give effect, is essentially a matter for the executive and legislature. Care must accordingly be exercised in considering submissions which involve an assertion that an appellant falls within the spirit of the Rules. Even if an appellant's case can properly be found to fall within the spirit of a particular provision of the Rules, her case does not thereby become a wholly exceptional one, for the purposes of Article 8. That finding will be one factor to consider in deciding whether, in all the circumstances, the immigration decision, if implemented, would involve a violation of her article 8 rights. Where her case falls within the ambit of another provision of the Rules, but she is unable to meet its requirements, the weight to be given to that factor is likely to be limited.

1. The appellants, female citizens of Jamaica born respectively on 20 June 1987 and 25 January 1990, applied on 15 June 2005 for entry clearance to the United Kingdom in order to join their father, the sponsor, a person present and settled in this country. On 11 July 2005 the respondent refused the appellants' applications and they appealed against that decision to the Tribunal. Their appeal was heard at Hatton Cross on 16 August 2006 by Immigration Judge Knowles. He dismissed the appellants' appeals. On 15 September 2006 reconsideration of the Immigration Judge's decision was ordered under section 103A of the Nationality, Immigration and Asylum Act 2002.
2. The relevant provision of the Immigration Rules is as follows:

"297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:

(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:

(a) both parents are present and settled in the United Kingdom; or

(b) both parents are being admitted on the same occasion for settlement; or

(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or

(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or

(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child's upbringing; or

(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; and

(ii) is under the age of 18; and

(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and

(v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and

(vi) holds a valid United Kingdom entry clearance for entry in this capacity."

3. The background to the application is as follows. The sponsor married the mother of the appellants in 1986 in Jamaica. He left that country in 1998 and claimed asylum in the United Kingdom. It is common ground that the sponsor has never been recognised as a refugee. The mother left Jamaica in March 2001 for the United Kingdom, taking with her the two younger sisters of the appellants. The basis on which the mother gained leave to enter the United Kingdom was as a student. The sponsor was granted indefinite leave to remain in the United Kingdom on 4 April 2005. Given that the sponsor was then ordinarily resident in the United Kingdom, he became on that day "settled", as defined in paragraph 6 (interpretation) of the Immigration Rules. The sponsor and the two younger daughters obtained indefinite leave to remain by reason of the Secretary of State's Family ILR Exercise.
4. The appellants' mother did not have indefinite leave to remain in the United Kingdom at the date of the decision; nor does she have such leave today. By the date of the hearing before the Immigration Judge, the mother had, however, been given limited leave to remain until January 2008, on the basis of her marriage to the sponsor.
5. After their mother left Jamaica, the appellants lived in that country with their maternal aunt, their maternal grandmother and a cousin. Each of the appellants had her own room in the home of the aunt, who looked after them, with the assistance of the grandmother.
6. At the hearing, the Immigration Judge was told by the sponsor that his wife did not bring the appellants with her when she came to the United Kingdom in 2001, as he and his wife had taken the view that it would be better for their education if the appellants remained in Jamaica. The sponsor told the Immigration Judge that he had not visited Jamaica as he had been working to support his family but his wife had returned on one occasion to Jamaica. The appellant's mother confirmed that she did not bring the appellants with her because she did not wish to disturb their education. She had returned to Jamaica in 2003 for a month. She said that one of the appellants had been sexually assaulted in Jamaica. When it was put to her that she could return to live with the appellants in Jamaica, she said that this would have the effect of splitting up the family. It was put to her that she had caused that to happen when she came to the United Kingdom. She replied that that was not intended to be a permanent arrangement. When asked what prevented the sponsor from returning with her to Jamaica, she said that he had been working in that country as a security guard and had prevented a robbery. As a result, he had been threatened and he feared for his life, even though eight years had elapsed. In addition, one of the two daughters who were in the United Kingdom tended to become fearful when she read about violence in Jamaica.
7. In his findings, the Immigration Judge concluded that the appellants satisfied the maintenance and accommodation requirements of paragraph 297. So far as paragraph 297(i)(f) was concerned, the Immigration Judge concluded on the evidence that the appellants had not shown that there were serious and compelling family or other considerations which made their exclusion undesirable. The appellants appeared to be living relatively comfortably in Jamaica and were being educated. They had been in the care of their aunt since 2001. There was no suggestion that the aunt had abandoned the appellants or intended to do so. Although the Immigration Judge understood that the appellants missed their parents and siblings, the appellants were not, at the date of decision, young children.
8. The Immigration Judge then considered whether the respondent's decision was a violation of Article 8 of the ECHR. On behalf of the appellants, it was submitted that, in considering that question, the Immigration Judge should have regard to the judgment of Collins J in R v Immigration Appeal Tribunal ex parte Lekstaka [2005] EWHC 745 (Admin). The submission, as the Immigration Judge recorded at paragraph 65 of his determination, was that "truly exceptional circumstances can be found on the basis that the appellants' case complies with the spirit of the Immigration Rules, albeit not the letter." The Immigration Judge accepted that, had the appellants' mother been settled, as well as the sponsor, the appellants would not have had to satisfy the requirements of paragraph 297(i)(f), that there be serious and compelling family or other considerations making exclusion undesirable, and could instead have relied upon paragraph 297(i)(a). Nevertheless, the Immigration Judge considered that the case of Lekstaka could be distinguished because there:

"The appellant and the sponsor found themselves in a situation which was not in any way of their making. The appellant in that case had been effectively orphaned by the conflict in Kosovo. He was prevented from seeking leave to remain in the United Kingdom as a dependant by virtue of being a nephew rather than a son, despite the fact that his uncle had treated him as a son of the family" (paragraph 66).

9. By contrast, the parents of the appellants in the present case "did make a free choice to split up the family, albeit one that they made on behalf of the appellant" (paragraph 67). At paragraph 68, the Immigration Judge noted that the sponsor had not visited the appellants during the eight years in which he had been in the United Kingdom and that the mother had only visited them once in five years. Although the mother had had a good reason to go to Jamaica to be with the second appellant, following the allegation of sexual assault upon the second appellant, she had chosen not to do so. The sponsor claimed that the Home Office had his passport, thereby preventing him from visiting Jamaica, but the Immigration Judge found that there was "no evidence that he has pressed the department for its return."
10. At paragraph 69, the Immigration Judge considered that there had been ample opportunity for the appellants to make their application since the mother had left Jamaica in 2001, but it was made only five days before the first appellant's eighteenth birthday "following which she could not have succeeded under the Immigration Rules by virtue of paragraph 297(ii)."
11. At paragraph 70, the Immigration Judge concluded by recalling his findings that there were no serious and compelling family or other considerations which rendered the exclusion of the appellants from the United Kingdom undesirable. Those findings were, he considered,

"equally applicable to the Article 8 claim. There is nothing in the Immigration Rules that is inconsistent with the Human Rights Convention. While it is not difficult to have sympathy with the appellants and their family, sympathy cannot amount to exceptional circumstances. There is no general obligation on the UK to respect their choice of residence. In my judgment, there is nothing so truly exceptional about this case such as to render it disproportionate to require the appellants to satisfy the Immigration Rules."

12. The grounds which accompanied the appellants' application for reconsideration of the Immigration Judge's decision contended that the Immigration Judge failed to consider whether the appellants fell within the "spirit" of paragraph 297(i), in that although the appellants' mother was not settled in the United Kingdom at the date of decision, she was "residing in the UK and was not intending to return to Jamaica." The purpose of paragraph 297(i), according to paragraph 12 of the grounds,

"is to prevent a child obtaining entry clearance to settle with one parent in the UK when the other parent is based in another country. This is not the case with the appellants' parents, both being based in the United Kingdom. In this sense the [Immigration Judge] was being invited to consider that the parents' arrangement was within the spirit of the Rules."

13. According to the grounds, the Immigration Judge, however, "failed to consider whether the parents' own in situation regarding settlement in the UK is of itself so within the spirit of the Rules as to be capable of being truly exceptional."
14. As was the case before the Immigration Judge, the grounds seek to place reliance on the judgment in Lekstaka. It is, accordingly, necessary to see what that case was about. The proceedings concerned the judicial review of a refusal by the Immigration Appeal Tribunal to grant the appellant permission to appeal against the determination of an adjudicator. The appellant, who came from Kosovo as a minor, lost his father, who was killed in Kosovo, and endured the disappearance of his mother and sister. Having arrived here in 1999 when he was 16, the appellant's asylum claim was refused in October 2002. The appellant based his claim to remain in the United Kingdom on the family life which he enjoyed with his uncle and aunt, who had been granted refugee status in the United Kingdom. At paragraph 31 of the judgment, Collins J, having quoted from passages of the judgment of Laws LJ in Huang v Secretary of State for the Home Department [2005] EWCA Civ 105, held that it was plain from that case "that the scope for it being found that a removal, notwithstanding a breach of Article 8(1), is disproportionate is very small indeed. But one has of course to look at the facts of an individual case." The learned judge then held:-

"32. The position here boils down, as it seems to me, to this. The claimant had effectively become an orphan in the sense that his father had been killed and his mother and sister had disappeared, and apparently have still disappeared. There is no suggestion that they have been traced or are indeed traceable. He had no family in Macedonia. He had no family or relations to go to in Kosovo. The only potential family that he had were his uncle and aunt who were in this country."

15. The Court then considered what the appellant's position might have been, at an earlier stage, under the Immigration Rules and "family policy":-

"37. If one looks back and wonders whether he would have qualified at an earlier stage, one finds, first of all, that had he been a son, as opposed merely to a nephew, he would, on the face of it, have been able to gain entry as a dependant had he applied before he reached the age of 18. Certainly it is difficult to conceive that there would have been any bar under the Rules. He certainly would have qualified. Equally, had he been a son, a dependant, as opposed to a nephew, and had the family not been granted asylum, he would have qualified to enter under the family policy. Furthermore, it was policy to allow the family of refugees who were granted that status to join them in this country and he would have qualified on that basis too as the dependant son, if he had applied to come before he reached the age of 18.

38. Mr Beard submits that it is not appropriate and not proper to look back in that way and to ask what would have happened if the situation had been somewhat different. But it seems to me that one is entitled to see whether, in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter. It does in my view quite plainly fall within the spirit because, albeit only a nephew, he has no other family – his father having been killed and his mother and sister having disappeared – and he has been treated by his uncle as if he were indeed the son of the family and that in my judgment is certainly capable of constituting an exceptional state of affairs."

16. The Court found that the adjudicator had not gone into the question of whether the case was exceptional "in any detail" (paragraph 39). Having considered the ECHR case of Sen v Netherlands (2003) 36 EHRR 81, Collins J considered that one had to look to see whether the facts of the present case came within the principle laid down by the ECHR:-

"but it must be obvious, I would have thought, that to return someone in the circumstances of a case such as this, however healthy and however able to look after himself, to Kosovo, where he has no one, and thus break all his family ties that he has left, is something which does indeed require very weighty reasons. In my view it is arguable that those reasons do not exist in the circumstances of this case" (paragraph 45).

17. At paragraph 48, the Court expressed itself satisfied that the IAT should have granted permission to appeal and that there was "a real chance of success and, accordingly, I propose to quash the decision of the IAT and to return the matter for fresh consideration to be given."
18. Although not relied upon by Mr Harris at the reconsideration hearing, the Tribunal considers that it is relevant to note that the Court of Appeal had occasion, some months after the judgment in Lekstaka, to deal with a similar issue. In Shkembi v Secretary of State for the Home Department [2005] EWCA Civ 1592, the issue was whether the IAT had dealt satisfactorily with an Article 8 claim, on appeal from an adjudicator, in the case of a citizen of Albania who arrived in the United Kingdom in 2000, together with his wife and son, and who unsuccessfully claimed asylum. The Court of Appeal held that the IAT had been wrong to refuse an adjournment, in order to enable the appellant to adduce evidence as to what the then Secretary of State for the Home Department had said during a radio interview, on the subject of a concessionary policy, whereby he would not remove families with children who had come to the United Kingdom prior to October 2000. The issue appears to have been whether the then Secretary of State:-

"had indicated that the reason for the concession was that it would be disproportionate to remove those to whom the concession was to apply and that that view had been expressed personally by the Secretary of State in a radio broadcast on 27 October 2003" (paragraph 7).

Although the appellant accepted that he and his family:-

"clearly fell outside the strict terms of that concession, nonetheless the rationale for the concession applied to the family and, accordingly, there was a proper basis for saying that there could and should be a departure from the normal which was that those refused asylum should be refused leave to enter this country" (paragraph 4).

The judgment of Latham LJ concluded as follows:-

"14. Mr McCullough, on behalf of the respondent, relies on this court's decision in Huang [2005] 3 WLR 488. In that case this court dealt in some detail with the basis upon which the appellate authorities should deal with cases where the would-be immigrant raised Article 8 issues. He submits that on a proper reading of that decision the Tribunal will essentially be required to consider whether the Adjudicator could properly have concluded as a matter of law that there were exceptional circumstances which should override the policy of the Secretary of State in circumstances such as these. He has to accept that this court made it clear in paragraphs 52 to 54 of that decision that matters of policy are matters which are capable of being justiciable, but, as Mr McCullough has rightly submitted, the position will usually be that the Article 8 rights of would-be immigrants will have been properly considered in the formulation of policy. That does not, however, mean that merely because in a given case the claim by the would-be immigrant does not, within the terms of the policy, have any entitlement to remain here, that is of itself clearly an answer because, as the court explained, the Adjudicator, in accordance with the decision of [the] House of Lords in Razgar, has an independent assessment of the situation to perform. The consequence is that the Tribunal in the present case would have been entitled to consider, and if the matter is returned to the Tribunal will have to consider, what the true policy in this situation is and decide whether it does or does not apply to the appellant [on] the facts as we understand them, but that is simply a matter at the moment of argument before us.

15. The policy does not strictly apply to the appellant but, nonetheless, Mr Nathan is entitled, it seems to me, to argue that if and insofar as a rationale can be discerned for the policy the Tribunal can consider whether or not as a consequence the Adjudicator was wrong to conclude that this was merely a concession which the Secretary of State is entitled either to depart from or to require strict adherence to, but goes further than that and justifies the conclusion that his is an exceptional case.

16. I do not wish to hold out any hope to the appellant that that latter argument can succeed on the facts of this case. But he was given leave to appeal to the Tribunal on that basis and it seems to me that he is entitled to have that appeal properly resolved by the Tribunal which Parliament has provided for the determination of that appeal, rather than this court taking upon itself any other role than that which it seems to me we should take in this case, which is to say that the procedure that was adopted by the Tribunal was unfair and the decision that it made was one which cannot stand. It is on that basis, on that basis only, that I would allow this appeal."

19. Both Shkembi and, to a degree at least, Lekstaka concerned policies of the Secretary of State, as opposed to the Immigration Rules. Whilst, as Huang makes plain, those Rules are themselves the manifestation of government policy on immigration matters, the structure of section 86(3) of the Nationality, Immigration and Asylum Act 2002, which sets out the circumstances in which the Tribunal must allow an appeal, accords a particular significance to the Rules. The Tribunal must, under section 86(3)(a), allow an appeal insofar as it thinks that a decision against which the appeal is brought or is treated as being brought "was not in accordance with the law (including immigration rules)" or if a discretion should have been exercised differently (section 86(3)(b)). Otherwise, the Tribunal must dismiss the appeal (section 86(6)). Thus, so far as the immigration appellate system is concerned, the Immigration Rules are part of "the law" and the policy to which they give effect is essentially the preserve of the executive and legislature. As Laws LJ held at paragraph 56 of Huang:-

"… the material policy is given first by the statutory requirement that persons who are not British citizens require leave to enter or remain in the United Kingdom; secondly and more particularly by the Immigration Rules, made by the Secretary of State subject to Parliamentary approval. The Rules state the detail of immigration policy, and in doing so prescribe in effect what classes of aliens will in the ordinary way be allowed to enter the United Kingdom and which will not. The adjudicator has no business whatever to question or pass judgment upon the policy given by the Rules. In our judgment his duty, when faced with an Article 8 case where the would-be immigrant has no claim under the Rules, is and is only to see whether an exceptional case has been made out such that the requirements of proportionality requires a departure from the relevant Rule in the particular circumstances."

20. Neither the High Court in Lekstaka nor the Court of Appeal in Shkembi is to be taken as holding that a person who can show that he comes within the "spirit" of the Rules or the underlying "rationale" of a particular policy has thereby demonstrated that his is a "truly exceptional" case, as required by Huang, such that giving effect to the immigration decision in his case would involve a violation of Article 8. In Lekstaka, the High Court returned the matter for fresh consideration to be given by (now) this Tribunal. In Shkembi the matter was remitted to the Tribunal so that it could determine whether the then Secretary of State had accepted that his policy involved an acceptance that to remove those covered by it would be a disproportionate interference with their Article 8 rights. In the light of that finding, the Tribunal would then decide whether the appellant's case was an exceptional one.
21. Accordingly, the general proposition that derives from those two cases is, the Tribunal considers, that the issue of whether a person falls within the spirit of the Rules or the rationale of a policy is a matter which is capable of affecting the determination of whether, in all the circumstances, the immigration decision, if implemented, would involve a disproportionate interference with Article 8 rights. The essential question remains whether, looked at in the round, the case is a truly exceptional one.
22. Confirmation of this proposition can be found in the judgment of the Court of Appeal in SB (Bangladesh) v Secretary of State for the Home Department [2007] EWCA Civ 28. The Tribunal's determination in that case contained the finding that the appellant "only just failed to qualify for admission" under paragraph 317 of the Immigration Rules. The Court approved the Tribunal's view that this was "a fact to be counted in her favour" in deciding whether her removal would violate Article 8 (paragraph 30 of the judgment). But Ward LJ was at pains to stress that:

"The ultimate test is, of course, that set out in paragraph 59 of the judgment of the Court of Appeal in Huang [2005] EWCA Civ 105, namely:

'The true position in our judgment is that the Human Rights Act 1998 and s. 65(1) require the adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, and only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules'" (paragraph 31).

23. In assessing the weight to be given to a finding that a person falls within the spirit but not the letter of an immigration rule, it is necessary to bear in mind the following point. The fact that the Immigration Rules are generally regarded as being compatible with the United Kingdom's obligations under the ECHR does not mean that each and every provision of those Rules represents only the barest minimum needed to ensure such compliance. A good illustration of this point is to be found at paragraphs 352A to G of the Rules. Those paragraphs make provision for certain family members of a refugee to have leave to enter or remain in the United Kingdom, in circumstances which, so far as the position of maintenance and accommodation without recourse to public funds is concerned, are more generous than the requirements imposed upon family members seeking leave to enter or remain with persons who are not refugees. It has not, however, to our knowledge, ever been successfully contended that being a refugee or the family member of a refugee enhances a person's rights under Article 8 of the ECHR. In other words, paragraphs 352A to G are more generous than the ECHR alone would require them to be.
24. Because of the nature of the Tribunal's jurisdiction, as described above, considerable care must be exercised in considering submissions which involve the assertion that an appellant falls within the spirit of the Immigration Rules. The policy to be adopted in the case of aliens who wish to enter or remain in the United Kingdom is a matter for the elected government, not for us. Any invitation to search for what is said to be the spirit of the Rules must be resisted if, in reality, the Tribunal is being invited to re-write government policy.
25. The grounds in the present case are a good example of this danger. They invite us to find that the underlying purpose of paragraph 297(i)(a) is merely to require both parents to be "based" in the United Kingdom; or, at least, that if one parent is "settled", then it is enough if the other parent is "based" here. The Tribunal sees no reason whatsoever to adopt any such interpretations. On the contrary, it is entirely comprehensible that the Secretary of State should require both parents to be free from any legal restriction on the period for which they may remain in this country. Quite apart from the fact that the concept of being settled is a well-established legal one, which is normally easy to prove, a person who has only limited leave to remain is plainly in a more precarious position than someone who is not, however much she may consider herself to be "based" here. Paragraph 10 of the grounds suggests that all that is needed to meet the alleged spirit of paragraph 297(i)(a) is residence in the United Kingdom, together with the absence of an intention to leave or, as paragraph 11 would have it, an intention to seek settlement. But such a test is capable of covering a wide variety of people, including illegal entrants, whose position may be precarious in the extreme.
26. However, if the appellants in the present case had been able to identify a dichotomy between the true purpose of paragraph 297(i)(a) and the way in which that provision has been drafted, this is not a case where the appellants are outside paragraph 297 altogether. They still fall within paragraph 297(i)(f), which provides a mechanism whereby persons seeking entry who have only one settled parent or relative in the United Kingdom may nevertheless succeed if there are "serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care." As the Immigration Judge found in the present case, the circumstances of the appellants were, looked at in the round, not such as to show on balance that paragraph 297(i)(f) was satisfied in their case. The test in that provision of serious and compelling family or other considerations is, in itself, almost certainly more generous than would be required in order to ensure that paragraph 297 was, in general, compliant with the ECHR.
27. Accordingly, in the circumstances of this particular case, even a finding that the appellants' circumstances were not materially different from those of persons, both of whose parents were settled in the United Kingdom, could not possibly have compelled the conclusion that their circumstances were as a result so exceptional that the respondent was violating Article 8 by not giving them entry clearance to this country. It would have been a factor to consider; but the weight to be given to it would necessarily have been affected by the fact that the appellants had not met the threshold of paragraph 297(i)(f).
28. It is clear from the Immigration Judge's determination that he found no significant reason why the family could not re-establish itself in Jamaica. The sponsor has not been recognised as a refugee. The assertion regarding the aftermath of his activities as a security guard was, in any event, extremely thin. The alleged sexual assault appears to have been an isolated incident. Although the appellants' mother told the Immigration Judge that one of the daughters in the United Kingdom became distressed whenever she thought about Jamaica, there was no medical evidence to show that this was likely to pose a significant impediment to the family's return.
29. In conclusion, the case for the appellants, based upon Article 8, is upon analysis no more than an attempt to compel the United Kingdom to respect their choice of residence. The determination of the Immigration Judge does not contain a material error of law and the Tribunal accordingly orders that it shall stand.

Senior Immigration Judge P R Lane

Date: