The decision

Heard at Field House

BV (Article 8 - Spouse - Proportionality) DR Congo [2003] UKIAT 00131
On 17 October 2003


Date Determination notified:

06 November 2003


Mr N H Goldstein (Chairman)
Mr N Kumar JP






For the appellant: Mr G Phillips, Home Office Presenting Officer
For the respondent: Ms V T Dsane, Counsel


1. The appellant, the Secretary of State for the Home Department, has been granted permission to appeal to the Tribunal against the determination of an Adjudicator (Mr C J Deavin) who dismissed the respondent’s appeal on asylum grounds but allowed it on human rights grounds.

2. In granting permission the Learned Vice President Mrs J A J C Gleeson noted that the Secretary of State contended that the Adjudicator had not considered Mahmood [2001] INLR 1. The present Grounds of Appeal relied on a new marriage (August 2002) and following Isiko [2002] IAR291, queue jumping was not to be encouraged. The Secretary of State argued that the Respondent should return to her country of origin either with her United Kingdom spouse or to seek re-entry as a spouse from there with proper entry clearance.

3. The Respondent sought asylum on 11 February 2000 and was refused on 12 September 2001. She married her husband in August 2002 at which time her immigration status was precarious and indeed, as the Adjudicator noted, relied entirely on the outcome of her appeal. It is also apparent from the Adjudicator’s determination that the Respondent’s husband, who was also a citizen of the Democratic Republic of Congo (DRC) had been granted exceptional leave to remain in the United Kingdom until May 2006 and had also been refused asylum.

4. The Adjudicator concluded as follows:

“57. Clearly the appellant has established both a family life and private life in the United Kingdom with a national of her own country. Any removal would interfere with both her private life and, more particularly, with her family life bearing in mind that she is expecting a child who will be born in August this year. Clearly such interference would have legitimate aims which is the maintenance of immigration control, but I find that such interference, at this stage, would be disproportionate in respect of this appellant, bearing in mind that her husband has leave to remain in the United Kingdom for another three years.

58. I find that her removal, during the course of her husband’s exceptional leave to remain, will engage Article 8, but that there will be nothing to prevent her removal thereafter.”

5. It was Ms Dsane’s submission that:

“A situation which can create a split in the family is in itself an interference with the unity of the family. …

I believe the Adjudicator was right in concluding that her removal would interfere with the rights of her family and that the Adjudicator had all the information before him to consider the circumstances of this appellant and came to the right conclusions. In relation to those circumstances the Adjudicator had in mind, I think he said, he had considered all the bundles of evidence including the personal circumstances of the parties at the time.”

6. Ms Dsane further drew to our attention that the couple had a child born on 8 July 2003.

7. Mr Phillips provided us with a copy of the recent Tribunal decision of the Acting Vice President Professor D B Casson 2003 UKIAT 00093R (Sri Lanka) and rightly drew our attention to paragraph 9 of the Tribunal’s determination which we set out in full below.

“We are quite clear that the grounds of appeal in this case are made out. The Adjudicator appears to have ignored the distinction between exceptional leave to remain and refugee status. Her statement at paragraph 51 of the determination that: “at the time of the marriage (the claimant) was outside the UK and had no reason to believe that she would not be permitted to join her husband” is simply incorrect. At the time of the marriage and at all subsequent times her husband was not settled in the United Kingdom but only had exceptional leave. Similarly there is no basis in law or fact that the Adjudicator’s statement at paragraph 54 that the claimant’s husband cannot return to Sri Lanka and that if the couple are to continue to conduct a family life it cannot be in her country of origin. Further, there is no evidential basis for the Adjudicator’s statement at paragraph 55 that there are “currently real obstacles in the way of the (claimant) pursuing from abroad an application for entry clearance as a spouse”. The same criticism must be made of the observation at paragraph 56 that the “couple would face insurmountable obstacles to continuing their family life either in Sri Lanka or in the UK”. Neither the claimant nor her husband is a refugee. There was and is no evidence that either of them could not return safely to Sri Lanka. The fact that the husband has exceptional leave to remain does not mean that he cannot return to Sri Lanka. The Adjudicator has in our judgment based her decision on a fundamental misperception of the factual and legal situation. Her decision to allow the appeal under Article 8 of the European Convention must be regarded as unsustainable”.

8. We agree with Mr Phillips that the circumstances of this appeal are not dissimilar in that:
i) At the time of the appellant’s marriage both were aware of their precarious immigration status.

ii) The respondent’s husband was not settled in the United Kingdom but only had exceptional leave.

iii) There was no reason why, despite the respondent’s husband’s exceptional leave, he could not return with his wife, the respondent, and their child as a family unit to the DRC, their country of origin.

iv) Neither the respondent nor her husband are refugees.

v) There is no evidence that either of them could not return safely to the DRC.

vi) The fact that the respondent’s husband has exceptional leave to remain does not mean that he cannot return with her to the DRC.

9. We have therefore concluded as submitted in the grounds, that the Adjudicator erred in his understanding as to the application of Article 8 of the ECHR and his findings in this regard must similarly be regarded as unsustainable.

10. In our view the issue of whether or not the respondent has (as submitted by Ms Dsane), established exceptional circumstances such as to justify herself of not availing herself of the alternative option of applying from abroad for entry clearance to return to her husband in the United Kingdom does not arise.

11. Ms Dsane submitted the findings of the Tribunal in what we shall call Case 93, appeared to impose a duty on the claimant’s husband as it would to the respondent’s husband in this case, to return to DRC. With great respect to her she misunderstands the point. The respondent’s husband, despite the grant of ELR, has the option to return with his wife and their child to the DRC and for that reason, it cannot be said, as the Adjudicator in our view wrongly found, that the removal of the respondent would interfere with both her private and family life in circumstances where it is open to this couple to return to their country of origin as a single family unit. In such circumstances, their situation does not even approach issues arising under Article 8(2) that relate to issues concerning the proportionality of removal.

12. We therefore reverse the Adjudicator’s decision as it relates to the respondent’s human rights appeal and we allow the appeal of the Secretary of State.

N H Goldstein
Vice President