Proof for subsisting marriage and s.85 of the 2002 Act

Naz (subsisting marriage – standard of proof) Pakistan [2012] UKUT 00040(IAC)

This Upper Tribunal case was heard in Birmingham on 14th December 2011. The appeal was brought by the entry clearance officer (herein after referred to as the ECO) against the decision of Immigration Judge Freer promulgated on 25th July 2011 allowing the claimant’s appeal against a refusal of entry clearance. The claimant, Mrs Naz, had applied for entry clearance as a spouse to join her husband who was settled in the UK. The claimant is a Pakistani national. Her husband has travelled to Pakistan on an extended visit from November 2008 until September 2009. They married in Pakistan in April 2009.

The ECO refused their application on the basis that there was not enough evidence of regular contact. Also, the marriage had taken place by proxy and the sponsor was not present. The ECO was not satisfied that the couple had formed a genuine relationship or that they intended to permanently reside together.

The claimant appealed to the First Tier Tribunal where the sponsor gave evidence. Reference was made to the guidance in the case of GA (“Subsisting” marriage) Ghana * [2006] UKAIT 00046. In that case it provided that subsisting means not merely that the marriage is still in existence as a legal formality but the matrimonial relationship subsists.

The Upper Tribunal determined that there were some errors in the First Tier Tribunal decision. Namely, the Judge stated that s.85(5) of the Nationality, Immigration and Asylum Act 2002 limited him to considering only evidence at the time of the decision to refuse entry clearance. Therefore, he disregarded a visit from the sponsor in 2011. This was deemed to be an error because s.85 of the 2202 Act ‘only excludes post-decision evidence that does not relate to an issue or a circumstance that was in contention at the time of the decision’. The Judge also concluded that the sponsor was not represented by a proxy and so the ECO were wrong to conclude that the evidence suggested he was not present. It was established that the bride, Mrs Naz had appointed a proxy and the Tribunal sought to hear further evidence from the sponsor on this point. The sponsor confirmed that Mrs Naz signed the marriage certificate and that she was the person present in the wedding photographs.  The Upper Tribunal concluded that there was no error in the Judge’s conclusion and that the ECO had misunderstood the position at the time of the wedding.

The Upper Tribunal held that the First Tier Tribunal Judge had made some errors in his decision however, ultimately there was no material error of law and the appeal was accordingly dismissed. The Tribunal took into account the post-nuptial visit of the sponsor in 2011 which had wrongly been excluded by the Judge along with the sponsor’s evidence as to the marriage ceremony.

Conclusion:

i)                It is for a claimant to establish that the requirements of the Immigration Rules are met or that an immigration decision would be an interference with established family life. In both cases, the relevant standard for establishing the facts is the balance of probabilities.

 

 

 

ii)              Post decision visits by a sponsor to his spouse are admissible in evidence in appeals to show that the marriage is subsisting: DR (ECO: post-decision evidence) Morocco * [2005] UKIAT 00038 applied.

Evidence of subsisting marriage

Goudey (subsisting marriage – evidence) Sudan [2012] UKUT 00041(IAC)

This Upper Tribunal case took place on 14th December 2011 at Sheldon Court, Birmingham.

Facts of the case:

This was an appeal against a First Tier Tribunal decision promulgated on 13th July 2011 dismissing the appellant’s appeal against a refusal of entry clearance. The appellant was seeking to join his wife who is settled in the UK. The respondents refused the application as the entry clearance officer was not satisfied that the couple were in a subsisting marriage or that they intended to live together in accordance with the requirements of paragraph 281 of the Immigration Rules. The appellants sought permission to appeal to the Upper Tribunal which was granted on 14th October 2011. At this point, the Supreme Court case of R (on the application of Quila and Others) v Secretary of State for the Home Department [2011] UKSC 45 had been determined and had found that the requirement for applicants to be aged over 21 was an unlawful and disproportionate one and therefore, the respondents could not seek to rely on that ground.

The sponsor is a Sudanese national originally from Darfur. He arrived in the UK where he claimed asylum and was subsequently granted refugee status. He naturalised as a British Citizen and then sought to sponsor his wife to join him in the UK. He stated that his relationship began in 2008 when he was in the UK and his wife was in Sudan. In August 2010, the sponsor travelled to Egypt where he was met by his wife. Subsequently, an application for entry clearance was made. It was refused in November 2010.

Considerable evidence by way of telephone bills (which matched the sponsor’s and appellant’s numbers) were provided along with international telephone cards and remittances. A letter from the company confirming money was transferred from the office in Birmingham to Sudan was provided but there no receipts of individual remittances.   In his decision, the judge stated:

“15. The parties claim to telephone each other since 2008.  It is clear that texting is an available option. I do not accept as credible that there would be no texts over this time.  I accept that there are telephone calls made to the 020 number.  However, there is no confirmation that the appellant is the person who is being telephoned. 

16. I also find that there was contradictory evidence as to the reason why there has been no written communication between them.  Firstly the sponsor stated plainly that there was no postal service and then he states that there is a very poor service.  He did not explain when first asked that it was not worth sending correspondence due to a poor postal service.  I find he was only prepared to give a more accurate account when asked in cross-examination and I find this reduces the weight that I place on his explanation. “

Conclusion of Upper Tribunal

The Upper Tribunal stated that the Judge had mis-directed himself as to the weight to be attached to the evidence relating to telephone calls. It was true that the telephone cards could not provide that the sponsor was speaking to the appellant however; the material does corroborate the appellants account in her entry clearance application and the sponsor’s evidence.  There was no indication of inconsistences or deception. The Tribunal stated that ‘The suggestion that they may have texted each other is speculation on the Judge’s part’. Telephone cards could not be used for texting which would have been a more expensive option. The judge was therefore held to be imposing his own view as to how the parties could have conducted their relationship.

The decision was set aside and the Upper Tribunal re made the decision by allowing the appellant’s appeal.

Summary of case:

i)                GA (“Subsisting” marriage) Ghana * [2006] UKAIT 00046  means that the matrimonial relationship must continue at the relevant time rather than just the formality of a marriage, but it does not require  the production of particular evidence of  mutual devotion before entry clearance can be granted.

ii)              Evidence of telephone cards is capable of being corroborative of the contention of the parties that they communicate by telephone, even if such data cannot confirm the particular number the sponsor was calling in the country in question. It is not a requirement that the parties also write or text each other.

iii)            Where there are no countervailing factors generating suspicion as to the intentions of the parties, such evidence may be sufficient to discharge the burden of proof on the claimant.

Post application evidence in ILR cases

Philipson (ILR – not PBS: evidence) India [2012] UKUT 00039(IAC)

This Upper Tribunal case was heard at Field House on 19th December 2011.

The facts of the case:

The appellant is an Indian national who arrived in the UK in May 2006 with a five year work permit to work as a care assistant with her current employers. She arrived with her husband who is her dependant and they have two children born in the UK in 2008 and 2010, who are also dependants on her case. In May 2011, the appellant applied for indefinite leave to remain on the basis of rule 134 of the Immigration Rules having completed 5 years residence on her work permit. She was still working for her employer and they still wanted her for employment.

The appellant was refused in a decision dated 18th June 2011 on the basis of rule 134 (iv) which had been added to the Immigration Rules by HC 863 as of 6th April 2011. This required that the appellant provide evidence from her employer that her rate of pay was equal to the sums set out in the Tier 2 guidance for her occupation. The appellants paid had increased since her arrival however, it was still less than what was required in the guidance.

The appellant appealed against the UK Border Agency decision and, with her grounds of appeal, she provided a letter from her employer (dated 18th June 2011) stating that she was to be awarded an increase in her pay to meet the level required in the guidance and that this would be backdated to 23rd May 2011.

Both parties in the appeal agreed that, if the letter was to be admissible in the appeal, then the appellant would meet all the requirements of rule 134 and that she should be granted indefinite leave to remain along with her dependants. The question then was whether the evidence was admissible.

Upper Tribunal decision

The Upper Tribunal confirmed that the evidence ‘would plainly be admissible under s.8594) of the Nationality, Immigration and Asylum Act (NIAA) 2002, as it was relevant to the substance of the refusal decision even through the evidence came into existence post decision’.

The Interpretation of s.85 NIAA 2002 was discussed. The tribunal explained that, s.19 of the UK Borders Act 2007 which came into force on 23rd May 2011, amended s.85 by dis-applying s.85(4) where 3 cumulative conditions are made out. Namely; i) the immigration decision is a refusal of leave to enter or remain; ii) the decision concerned an application identified in the rules as requiring to be considered under the Points-Based System (PBS) and iii) the appeal relies wholly or partly on the proposition that the decision was not in accordance with the rules, or the law or that a discretion under the rules should be exercised differently.

The First Tier Judge had correctly concluded that the 1st and 3rd point was applicable. However, he then went on to conclude the second requirement was also met. This was deemed to be an error of law. This was an application for indefinite leave to remain and not under the points based system. The Tribunal accepted the evidence from her employer and the fact that her pay would be back dated. The Tribunal considered that even if the employer had refused to back date the wage increase or indeed, if the employer refused to increase her wage, whether there would be a legitimate aim for refusing her application. The appellant met the statutory minimum wage conditions and was still performing a valuable social service in the field of employment where there were labour force shortages. The Tribunal re made the decision to allow the appellants appeal under the Immigration Rules.

Summary of Upper Tribunal Conclusion:

i)                A decision on an application under rule 134 of the Immigration Rules for indefinite leave to remain is a not a points-based decision to which s.85A of the Nationality, Immigration and Asylum Act 2002 as amended by s.19 of the UK Borders Act 2007 applies.

ii)              Post decision evidence of a back-dated wage increase is admissible on appeal to demonstrate compliance with rule 134(iv).  

iii)            It is doubtful whether rule 134(iv) applies to those who never needed a certificate of sponsorship with a salary level identified in guidance relating to such certificates.

iv)             If such a person could not comply with the rules on settlement for reasons of a new salary level, there was a strong claim that leave to remain was required to respect the private life established in the reasonable expectation of settlement if the conditions for settlement applicable on arrival were adhered to, and a relatively weak case for justifying interference with such private life to promote a legitimate public interest recognised by Article 8(2) ECHR.

AA (Iraq), R (on the application of) v Secretary of State for the Home Department [2012] EWCA Civ 23 (24 January 2012)

This was the application for judicial review of the Secretary of State for the Home Department’s (SSHD) decision to refuse to exercise her discretion to grant the appellant asylum in the UK, on the basis of the appellant having been trafficked to the UK, and the SSHD’s decision to certify the appellant’s claim as ‘clearly unfounded’ such that she would have no right to appeal on human rights grounds.

 

 

 

The appellant is an Iraqi national, aged 18.  She arrived in Belgium with her brother and they claimed asylum there using a false narrative, such as lying about their ages.  In Iraq the appellant had been abused by her father.

 

 

In Belgium, she and her brother were held in immigration detention.  Her brother physically abused her there.  She began a relationship with a Cameroonian detainee.  Some Iraqi detainees found out about this, and blackmailed her to have sex with them, threatening to tell her brother about the relationship.  The appellant suffered a serious injury to her right eye as a result of abuse from these men.  She reported her injuries to the police but they did not do anything, telling her to notify them if she saw the men again.  When she did, the appellant called the police, but they arrived too late.

 

 

 

While in detention the appellant became pregnant but the Cameroonian detainee with whom she was having a relationship refused to marry her, so she had an abortion in hospital.

 

 

 

The appellant and her brother were eventually placed in a house by the Belgian authorities.  The appellant found a man named Omar who said he would take her to the UK if she slept with him.  The appellant returned after one night and had sex with him.  She was made to have sex with some Albanian men also.

 

 

 

On arrival in the United Kingdom, the appellant claimed asylum but maintained a false narrative in interview, which was eventually found out by the UK Border Agency as they checked her records and found she had claimed asylum in Belgium.

 

 

 

The Court found that the appellant had not been trafficked into the UK, according to the Council of Europe Convention on Action Against Trafficking.  Sir David Keene and Lord Justice Longmore found that the appellant had ‘made an informed decision to sleep with him’ in exchange for being brought into United Kingdom, rather than rely on the authorities to protect her from abuse by her brother.  The Competent Authority for the purposes of the Trafficking Convention had been rational in placing weight on the appellant’s lack of credibility.

 

 

 

While it was true that under the Trafficking Convention there was no need for a victim to self-identify as having been trafficked, or to have been transported into another country if s/he had been harboured for the purposes of being trafficked, the decision in this case that she was not trafficked was reasonable.  The appellant had said in her screening interview with the UK Border Agency that she had wanted to come to the United Kingdom to be treated kindly.  The Court found that the appellant had had sex with a man to facilitate this ‘ambition’ to enter the United Kingdom.

 

 

 

Under the Dublin II Regulation asylum seekers who reached a safe country, prior to claiming asylum in the United Kingdom might be removed in order to have their claims processed in that third safe country.  Given the Court’s findings the SSHD was found not to have been irrational or unreasonable in issuing removal orders.

 

 

 

Given judicial review is the only remedy where there is no statutory appeal because the SSHD’s decisions are not immigration decisions for the purposes of the immigration statutes, the appellant could be removed to Belgium, where the Court deemed it ‘no more likely’ that her brother or the other men who had abused her would trace her.

 

 

 

S.85A of the Nationality, Immigration and Asylum Act 2002 & the duty for the Secretary of State to act fairly

Naved (Student – fairness – notice of points) Pakistan [2012] UKUT 14 (IAC) (13 January 2012)

 

This Upper Tribunal case was heard at Field House on 9th December 2011. In the case it was held that:

 

“Fairness requires the Secretary of State to give an applicant an opportunity to address grounds for refusal, of which he did not know and could not have known, failing which the resulting decision may be set aside on appeal as contrary to law (without contravening the provisions of s. 85A of the Nationality, Asylum and Immigration Act 2002).

 

The facts of the case are as follows:

 

The appellant is a Pakistani national. He arrived in the UK with a student visa on 31st January 2010. His visa was issued on 18th December 2009 and was valid until 31st May 2011. The appellant enrolled on an Association of Computer Professionals course at the London College of Research (LCR). He completed his course in March 2011. The appellant was applying for an extension of leave to remain to study on another course at a College called Eurospeak. His application was refused and he appealed against the SSHD’s decision to refuse his Tier 4 (general) application. His appeal was dismissed at the First Tier Tribunal. The case came before the Upper Tribunal. The issue was whether the appellant was entitled to be treated as having an ‘established presence’ in the UK as a student on the basis of the course he had completed.

 

Upper Tribunal decision

 

The Upper Tribunal considered the evidence before it and stated:

 

“It is common ground that the evidence with which we are concerned was not sent in with the application; so we cannot consider it under s. 85A (4) (a). So far as (4) (c) is concerned, Mr Hopkin argues that it does not apply either here, since no previous document had been produced by the appellant to show that he was entitled to be treated as having an ‘established presence’. Technically that is right, since what he said in his application form amounted to an assertion, rather than documentary evidence: it might be true or untrue (though of course we know it was true); but there was no question of its being “genuine or valid”; or indeed the reverse. More generally it might be said that Parliament intended an appellant to be able to respond in an appeal to an allegation of invalidity made for the first time in determining the application.”

 

Upper Tribunal decision

 

The Upper Tribunal considered the evidence before it and stated:

 

“It is common ground that the evidence with which we are concerned was not sent in with the application; so we cannot consider it under s. 85A (4) (a). So far as (4) (c) is concerned, Mr Hopkin argues that it does not apply either here, since no previous document had been produced by the appellant to show that he was entitled to be treated as having an ‘established presence’. Technically that is right, since what he said in his application form amounted to an assertion, rather than documentary evidence: it might be true or untrue (though of course we know it was true); but there was no question of its being “genuine or valid”; or indeed the reverse. More generally it might be said that Parliament intended an appellant to be able to respond in an appeal to an allegation of invalidity made for the first time in determining the application.”

 

It was decided that a strict meaning of section 85A would not allow the appellant to rely on the evidence adduced however; this was held to be unfair in light of the circumstances. The appellant was being refused for failing to produce a document which he was not asked to produce. The SSHD had a duty to act fairly. A failure to act fairly was a failure was deemed to be a failure to act in accordance with the law.

 

Since there were no other reasons to refuse the appellant and it was established that he did qualify for the reduced maintenance levels, his appeal was allowed. It is important to note that s.84A still stands and applicants must ensure they read application forms correctly and provide the relevant documentary evidence. Omissions will no longer be rectified at appeal.

 

24th January 2012

 

 

 

 

Tier 4 sponsors: educational oversight and other changes

The UK Border Agency has announced recent updates for sponsors of Tier 4 migrants. It is said that all current Tier 4 sponsors, who are not already subject to inspection or review by one of the designated educational oversight bodies, must apply to the appropriate body by the relevant deadline as detailed in the current sponsor guidance. These inspections and reviews are to take place throughout 2012 with the results of each inspection or review being published on the website of the appropriate educational oversight body. Sponsors are warned that failure to achieve a satisfactory inspection outcome from the appropriate body will lead to implications for the sponsor’s ability to sponsor international students under Tier 4 of the points-based system.

The designated educational oversight bodies covered by the announcement are:

• Quality Assurance Agency offers educational oversight for privately funded higher education providers and pre-sessional providers throughout the UK;
• Independent Schools Inspectorate offers educational oversight for privately funded further education providers and English language schools in England and Wales;
• Bridge Schools Inspectorate offers educational oversight for privately funded further education colleges in England and Wales with a clear religious purpose;
• School Inspection Service offers educational oversight for privately funded further education Montessori and Steiner providers in England and Wales;
• Education Scotland offers educational oversight for privately funded further education colleges and English language schools in Scotland;
• The Education and Training Inspectorate offers educational oversight for privately funded further education colleges and English language schools in Northern Ireland.

For sponsors currently subject to the interim limit, the UK Border Agency will take the following actions based on the outcomes of inspections set out above:

• Where the college achieves a satisfactory inspection or review for Tier 4 purposes and the college has also obtained highly trusted sponsor status, it will no longer be subject to the interim limit
• Where the college does not receive a satisfactory outcome for Tier 4 purposes, but the report indicates that follow-up action is required, then the college will remain subject to the interim limit and further action will be required from the college as specified in the report. It will be for the relevant body to confirm whether the college has met the standard within a specified timescale.
• Where the college fails the inspection or review for Tier 4 purposes, at the initial stage or following further action, then the college will become a legacy sponsor, and therefore they will be unable to sponsor new international students.

Changes from April 2012

Furthermore, the UK Border Agency also announced changes set to take place from April 2012, where the following changes will also be made (this was previously indicated in the statement of intent published on 31 March 2011):

• Work placements – to be restricted to one-third of the course, unless the course is at degree level and the sponsor is a higher education institution or the student is on a study abroad programme.
• Time limits in Tier 4 – introduction of limiting the time students can spend at degree level to 5 years, with certain exemptions for longer courses and doctorates at higher education institutions.
• Tier 1 Post-study work – This route is to be closed from April 2012. However, there will be a route into sponsored graduate employment through Tier 2 of the points-based system will be retained.

Further details of these changes are expected to be announced in due course.

One–Off Exercise case

Polat, R (On the Application Of) v The Secretary of State for the Home Department [2011] EWHC 3445 (Admin) (20 December 2011)

This High Court Case was heard on 20th December 2011. The case concerns a Turkish national of Kurdish ethnicity (the claimant) challenging the decision of the Secretary of State (SSHD) to refuse his application for indefinite leave to remain in the UK under the concessionary policy known as the One Off Exercise to allow qualifying asylum seeking families to remain in the UK (herein after referred to as the One Off Exercise). The SSHD decided that the claimant Polat, did not qualify under the One Off Exercise because his case fell within Article 1F(b) and 1F(c) of the 1951 Convention and 1967 Protocol Relating to the Status of Refugees (herein after referred to as the refugee convention).

Prior to refusing the claimants application, the SSHD had refused his asylum claim on the same basis however, the claimant was granted discretionary leave to remain in the UK. The claimant seeks a declaration that the decision of the SSHD is irrational and seeks a quashing order to quash the decision. The SSHD’s basis for refusing the claimants application under Article 1F(b) is that there are serious concerns that the claimant committed serious non-political crime prior to arriving in the UK.  The claimant had been in possession of a pistol with ammunition in around July 1996. Also, the SSHD concluded that there were serious reasons for considering that the claimant has committed acts contrary to the purposes and principles of the United Nations namely, the claimant was accused of being  involved with the terrorist organisation, PKK. The claimant was accused of encouraging people in an armed struggle against the Turkish State and of being involved in an event on 2nd July 1996. The claimant argued that his actions were not sufficient to bring him within the ambit of Article 1F and that his political activities were not sufficiently serious to be contrary to the purposes and principles of the UN. Accordingly, the claimant argued that the SSHD’s decision was unlawful and Wednesbury unreasonable.

Case law

In the Supreme Court decision of R (JS (Sri Lanka)) v Secretary of State for the Home Department [2010] UKSC 15 [2011] 1 AC 184 (“JS (Sri Lanka”) it was decided that:

i) Mere membership of a terrorist organisation is not sufficient for an applicant to fall within Article 1F(c).

ii) The relevant test is whether the applicant has “voluntarily contributed in a significant way to the organisation’s ability to pursue its purpose of committing acts contrary to purposes and principles of the UN, aware that his assistance will in fact further that purpose”.

iii) In applying that test, the seven factors identified in §30 of Lord Brown’s speech fall to be applied to the facts of the particular case.

iv) It is necessary to conduct a close examination of the evidence and the facts relating to the actual role of the individual in question and to reach a carefully reasoned decision as to precisely why the person concerned is excluded.

The One Off Exercise

In October 2003, the Government announced a one-off exercise to clear around 15,000 outstanding asylum seeking family cases. The SSHD was to grant families who had been in the UK for 3 years or more, indefinite leave to remain in the UK. In order to benefit from this exercise, the main applicant was required to have made an asylum claim before 2nd October 2000 and to have at least one dependant under the age of 18 in the UK on 2nd October 2000.  Also, there had to be an outstanding asylum claim or appeal or where the application was refused with no further right of appeal but where the applicant had not been removed. Applicants could be excluded under this exercise if they came within Article 1F.

Conclusion

The High Court stated that there was no evidence to support the SSHD’s claim that claimants presence in the UK would not be conducive to public good on the basis of the facts said to establish Article 1F(b). The letters of refusal did not contain any express references to Article 1F (sub paragraphs) and there was no proper explanation as to how the SSHD’s records indicated that the claimant fell into the exclusions from the One Off Exercise. Furthermore, there was no evidence to explain why Article 1F(b) is not included in the One Off Exercise.

The Court concluded that there was no sufficient evidence rationally to conclude that the claimant voluntarily contributed in any significant way to the PKK’s terrorist activities. Therefore, the SSHD’s decisions were held to be unreasonable and the Judge made a declaration rendering the decisions unlawful and quashing the decision to exclude the claimant from the One Off Exercise.

Failure to waive an entry clearance application fee for minor dependants of refugees is lawful

SS, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 3390 (Admin) (16 December 2011) 

 

The claimant in this case was a Somalian national, living in Addis Ababa in Ethiopia.  The Secretary of State for the Home Department had taken a decision not to waive the application fee for the claimant’s application for entry clearance to the UK, and it was this decision which the claimant asked to be judicially reviewed.  The claimant’s sister, father, and brother – who all live in the UK – sponsored the claimant’s application for entry clearance, but lacked the funds to pay the fee.

 

The facts of the case were that the claimant’s sister was sent to the UK when she was 16 because her family suffered attacks based on ethnic and tribal violence in Somalia.  Her brother and father followed some years later, but the claimant remained in Ethiopia.  There had been a period of two years when the family had not taken any steps to have the claimant join them in the UK.  This undermined the claimant’s application for entry clearance because it weakened his case that he was dependent on his family.  Furthermore, the Judge found he could not be sure of the claimant’s age, so there were doubts over whether the claimant was under 18 or not, which again went to the issue of dependence and whether entry clearance would have been granted by the SSHD.

 

When the claimant applied at the British Embassy in Addis Ababa for entry clearance to the UK in September 2009, the application was rejected because no application fee was paid.  The claimant’s solicitors wrote to the Embassy, arguing that no fee might be demanded, as there was an immigration policy in place which meant that minor dependants of refugees need not pay an application fee.

 

In fact, the solicitors were mistaken about the policy in operation in September 2009, as fees were payable but the SSHD had a power to waive the fee (R (Elmi) v SSHD [2010] EWHC 2775 Admin).  It was open to the SSHD to find that there were no ‘exceptional, compelling and compassionate circumstances’ in this case which made it necessary to waive the application fee.

 

In terms of an Article 8 right to family life under European human rights law, the SSHD had not accepted that there was a family life between the claimant and his sister in the UK, and that any family life that did exist could continue as it had done, even though the claimant was in Ethiopia.

 

While it is the case that an individual outside the UK might have an Article 8 claim to enter the UK in order to join family members (Grul v Switzerland [1996] 22 EHRR 93), there is no automatic right to enter the UK, and the payment of an application fee for entry clearance is a legitimate and proportionate barrier to entry.

 

All grounds considered, it was reasonable for the SSHD to base her decision not to waive the application fee on the reasoning that, although the claimant’s sister lives on state benefits, she would be able to raise the fee within time, and the judicial review of the decision was therefore dismissed.

 

Failure to take a removal decision on refusing leave to remain will not render the leave decision unlawful

Patel (consideration of Sapkota – unfairness) India [2011] UKUT 484 (IAC) (16 December 2011) 

The appellant in this case and his wife had entered the UK on a two year working holiday visa in 2009.  Their child was born in the UK in 2010.  In 2011 permission to extend the family’s leave to remain was refused.  Permission to appeal the refusal by the Secretary of State for the Home Department (SSHD) was granted, in light of the argument that the SSHD’s failure to issue a removal order under s. 47 of the Immigration, Asylum and Nationality Act 2006 at the same time as, or shortly after, refusing leave to remain, might have been unlawful.  The Upper Tribunal was deemed to have jurisdiction to review this decision of the SSHD not to issue a removal order via ss. 82 to 86 Nationality, Immigration and Asylum Act 2002.

 

 

 

Based on Sapkota and KA (Pakistan) [2011] EWCA Civ 1320, the appellant contended that – because the SSHD had failed to make a removal decision when refusing leave to remain – the decision to refuse leave to remain must be unlawful.  The lower court had found that it was unfair or irrational of the SSHD not to take a decision as to removal, having made the decision not to extend leave.  In terms of jurisdiction, and the question of whether the Immigration Tribunal might determine the issue at hand, under s. 82(4)(e) of the 2002 Act, it is open to a Tribunal to find that an immigration decision is not in accordance with the law.  The respondent SSHD argued that the appellant was able to appeal every aspect of the decision to refuse leave to remain, even though a decision about removal had yet to be taken.

 

 

 

The problem addressed by the important ruling in Sapkota, and also Mirza and others [2011] EWCA Civ 159 was the SSHD’s practice of refraining from making a decision about removal so as to prevent legal protections biting (see TE (Eritrea) [2009] EWCA Civ 174).  For example, paragraph 395C of the Immigration Rules allows the Immigration Tribunal discretion to take into account broad circumstances of a case where removal is concerned.  In the absence of a decision on removal, the applicant has nothing to challenge.  Furthermore, the SSHD’s practice had suppressed challenges because once leave to remain has been refused an applicant, and the applicant’s current leave to remain expires, his/her presence in the UK would be illegal while s/he challenged that decision, in the absence of a removal decision – a practice which the Court of Appeal dealt with by finding that a refusal of leave decision would qualify as an immigration decision, and fall to be appealed as such (JM (Liberia) [2010] EWCA Civ 1402).

 

Notwithstanding Sapkota and Mirza, and the fact that it would in certain cases be irrational and therefore unlawful of the SSHD not to take a removal decision at the same time as taking a leave decision, such that an applicant might fully challenge the SSHD before an independent tribunal, in this case the appellant had granted leave to remain in the UK on a working holiday visa, and on the facts of the case there were no reasons the SSHD’s decision to refuse to extend leave further was unlawful.  The power to consider leave decisions and removal decisions together where it was necessary in the interests of fairness (Sapkota and Mirza) could not be said to be a binding duty.  In this case it was not unfair or irrational that the SSHD had failed to take both decisions together.  The failure to consider removal at the time of refusing leave did nothing to invalidate the leave decision, and that decision was upheld.

 

The requirement to demonstrate knowledge of the English Language in entry clearance applications for spouses/partners of British/settled persons in the UK

Chapti & Ors, R (on the application of) v Secretary of State for the Home Department & Ors (Rev 1) [2011] EWHC 3370 (Admin) (16 December 2011)

Background to the case

This High Court case was heard throughout July to October 2011. The case concerned the amendments made to paragraph 281 of the Immigration Rules concerning entry clearance visas to the UK for foreign spouses/partners of British/settled persons. The rule was amended to require foreign spouses and partners to produce a test certificate to establish that he/she has sufficient knowledge of the English language. This is assessed to be a level A1 of the Common European Framework (herein after referred to as CEFR) in listening and speaking. Exceptions apply for those under or over a certain age and those with certain health problems. If applicants can demonstrate exceptional compassionate circumstances, or if a test centre is not available in the Country of origin, applicants may not be required to satisfy this new rule. Otherwise, everyone else is expected to adduce satisfactory evidence in order to gain entry clearance to the UK under this category. Previously, applicants were only required to demonstrate this knowledge after having arrived in the UK and having completed their probationary period when applying for indefinite leave to remain.

In this case, the claimants claimed that the amendment is disproportionate and an unlawful interference with both their human rights and that of their spouses/partners. The Secretary of State for the Home Department (herein after referred to as the SSHD) argue that the new rule is a lawful way of promoting integration into the community.

The claimants rely on article 8 of the ECHR (the right to a private and family life) and article 12 of the ECHR (the right to marry). The latter is relied on as a number of applicants will not be able to satisfy the rule because either there are no testing facilities in the region in which they reside or because they have come of an age where learning a new language will be difficult and time consuming. Other applicants may not be able to read or write let alone learn to speak a foreign language. Reliance was also based on Article 14 of the ECHR arguing that the new provision is discriminatory on the grounds of race, nationality, ethnic origins, language, gender and disability. Further, the claimants alleged that the rules were discriminatory in comparison to EU nationals and family members. The claimants submitted that the new rule is arbitrary, irrational and ultra vires at common law.

The defendant SSHD argued that Article 8 does not oblige a state to respect the choice by married couples of the country of their matrimonial residence. Any interference was said to be proportionate as none of the claimants had enjoyed a family life with their spouses in the UK. Furthermore, the SSHD contended that the difference in the requirements for applicants from English speaking Countries and those from other Countries where English is not spoken had a rational justification. In fact, when announcing the change of commencement date, the Home Secretary stated that the justifications for the requirement were “encouraging integration, protecting public services, and saving costs”. The aims are therefore, economic, to save public funds and to make migrant families better off.

The Immigration Rule and amendments

Spouses and partners of British/settled persons have, since 2007, been required to demonstrate that they have sufficient knowledge of the English language and life in the UK. The Life in the UK Test (herein after referred to as KOL) was one way of satisfying this requirement. The language component of the KOL test is assessed at level B1 of the CEFR. The new pre entry test level is lower than this (at level A1). Paragraph 281 of the Immigration Rules (as amended) provides as follows:

281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:

(i) (a)(i) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and

(ii) the applicant provides an original English language test certificate in speaking and listening from an English language test provider approved by the Secretary of State for these purposes, which clearly shows the applicant’s name and the qualification obtained (which must meet or exceed level A1 of the Common European Framework of Reference) unless:

(a) the applicant is aged 65 or over at the time he makes his application; or

(b) the applicant has a physical or mental condition that would prevent him from meeting the requirement; or;

(c) there are exceptional compassionate circumstances that would prevent the applicant from meeting the requirement; or

(iii) the applicant is a national of one of the following countries: Antigua and Barbuda; Australia; the Bahamas; Barbados; Belize; Canada; Dominica; Grenada; Guyana; Jamaica; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Trinidad and Tobago; United States of America; or

(iv) the applicant has obtained an academic qualification(not a professional or vocational qualification), which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Master’s degree or PhD in the UK, from an educational establishment in one of the following countries: Antigua and Barbuda; Australia; The Bahamas; Barbados; Belize; Dominica; Grenada; Guyana; Ireland; Jamaica; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and The Grenadines; Trinidad and Tobago; the UK; the USA; and provides the specified documents; or

(v) the applicant has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Master’s degree or PhD in the UK, and

(1) provides the specified evidence to show he has the qualification, and

(2) UK NARIC has confirmed that the qualification was taught or researched in English, or

(vi) has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Master’s degree or PhD in the UK, and provides the specified evidence to show:

(1) he has the qualification, and

(2) that the qualification was taught or researched in English.

or

(b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and

(b)(ii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application; and

…

(ii) the parties to the marriage or civil partnership have met; and

(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and

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

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

(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity

For the purposes of this paragraph and paragraphs 282-289 a member of HM Forces serving overseas, or a permanent member of HM Diplomatic Service or a comparable UK-based staff member of the British Council on a tour of duty abroad, or a staff member of the Department for International Development who is a British Citizen or is settled in the United Kingdom, is to be regarded as present and settled in the United Kingdom.”

Paragraph 284 of the Immigration Rules were also subsequently amended requiring those applicants who are in the UK to also pass the test in order to apply for leave to remain (further leave to remain/switch into) the fiancé or partner/spouse, same sex partner/civil partner category.

In the case of the claimant Mr Chapti, it was argued that learning English would be difficult as he had had no formal education and was living in a rural area in India. It was argued that he could not receive tuition and in light of his age, it would be difficult for him to grasp a new language.

In the case of the other claimant Mrs Ali, it was argued that she was illiterate and that there is no UKBA approved centre in Yemen where she resides and which provides tuition in English to the level required, and, since the test can only be taken online, Mr Ali will also need to take lessons on computer literacy.

In the case of the third claimant, the same things as above (distance to travel to learn English) were argued.

Conclusion

The Court having considered the evidence before it, held that the change would not amount to a breach of the European Court of Human Rights in particular, article 12- right to marry, article 8- right to a private and family life and article 14- obligation not to discriminate. The Court held that there was no disproportionate interference with family life and that further stated that the requirement was “justified and rationally connected to the legitimate aims of promoting integration and protecting public services”.

In considering whether the approach to Article 8 of the ECHR was justified, the court made reference to the questions raised in the case of Huang which were:

 (a) Is the legislative objective sufficiently important to justify limiting a fundamental right?

(b) Are the measures which have been designed to meet it rationally connected to it?

(c) Are they no more than necessary to accomplish it?

(d) Do they strike a fair balance between the rights of the individual and interests of the community?

The Court accepted that the new requirement does pursue a legitimate public aim. The next issue was whether that aim is proportionate. The Court found that it was.

The Court observed that English tuition is offered globally y the British Council and that Countries where no approved test Centre’s were available were exempt from the requirement. The Court stated that “An applicant who is illiterate or semi-literate is clearly likely to need more time to achieve the required standard. If he or she cannot do so, the question will be whether he or she qualifies under the “exceptional compassionate circumstances exception”. If the defendant does not show flexibility in such cases, she may find that an individual decision requiring such a person to take the test is, on the particular facts, incompatible with the Article 8 rights of that person or his or her spouse. But again, this is not a ground for impugning the rule itself.”

The Judge concluded as follows:

“…in the light of all the material before me, considering the matter purely in terms of Article 8(2) and leaving aside the issue of discrimination, the rule providing for a pre-entry English language requirement is not a disproportionate interference with family life and is justified. It is rationally connected to its aims, which are legitimate and, which the Home Secretary and her predecessor regarded as important aims. It makes due allowance for the generality of exceptional cases. The fact that it may, in an individual case, be possible to argue that the operation of the exceptions in the way envisaged in the evidence adduced on behalf of the Home Secretary is a disproportionate infringement of that individual’s Article 8 rights, does not render the rule itself disproportionate. If the rule itself is not a disproportionate interference with family life where it results in an inability to enter the United Kingdom absent the circumstances of a particular case, it follows that in the generality of cases, and subject to particular circumstances which can only be identified on a case-by-case basis, the lesser interference of delaying entering the United Kingdom cannot lead to a different answer.”

Summary of Conclusions

“(a) The new rule does not interfere with the Article 12 rights of the claimants: see [65];

(b) Article 8 is engaged in this case: the new rule impacted on the Article 8 rights of the claimants: see [71];

(c) The aims of the new rule, to promote integration and to protect public services, are legitimate aims within Article 8(2): see [84] – [85];

(d) Taking into account all the material before the court, in particular the exceptions to it, the new rule is not a disproportionate interference with family life and is justified: see [87] – [115]. The fact that it may, in an individual case, be possible to argue that the operation of the exceptions in the way envisaged in the evidence adduced on behalf of the Home Secretary is a disproportionate infringement of that individual’s Article 8 rights, does not render the rule itself disproportionate;

(e) As to discrimination contrary to Article 14 when read with Article 8, the exemptions based on nationality are not direct discrimination based on nationality. This is because the “bright line” drawn between countries considered to be “English-speaking countries” and those which are not is (see [132]- [133]) a rational one, and accordingly those who are exempt are not in a relevantly similar situation to those who are not exempt: see [138];

(f) The new rule does not indirectly discriminate on the ground of nationality, ethnic origins or disability: see [141] – [143]. For the reasons given at [140], in the case of the allegation of indirect gender discrimination, I have made no determination.”

 

The claimants’ applications were dismissed. However, leave was granted for permission to appeal against the decision.

Any further decisions will be posted on our website www.ergensharif.co.uk

December 2011