The decision


Mr. A. Mahmood, Counsel, instructed by Dicksons HMB Solicitors, appeared on behalf of the Appellant, and Mr. John Jones, a Senior Home Office Presenting Officer, appeared on behalf of the Respondent.


1. The Appellant, a citizen of Azerbaijan, appeals with the leave of the Tribunal against the decision of an Adjudicator, Mr. J. W. Miller, who in a determination promulgated on 29 April 2003, following a hearing at Bennet House on 22 April 2003, dismissed her appeal against the decision of the respondent, taken on 11th September, 2001, to direct her removal after refusing asylum.

2. The Appellant was born on 15 January 1976 and arrived in the United Kingdom, with her son Alexander, born on 11 June 1995, on 11 July 2001 as a clandestine entrant. She was served with illegal entry papers on 11 July 2001 and claimed asylum on the same day.

3. The Appellant is of mixed Azerbaijan and Russian ethnicity and of the Russian Orthodox faith. She was married to a Muslim in 1993. He sadly died in 1998 and following her husband’s death, she claimed that she was mistreated by her late husband’s family.

4. Two months after her arrival in the United Kingdom, on 18 September 2001, the Appellant was married to an Afghan national. Mr. Shir Mohammad Amir Mohammad, who on 18 March 2002, was granted exceptional leave to remain in the United Kingdom until 18 March 2006. On 2 July 2002, a child of that union was born, Amelia.

5. The grounds of application for permission to appeal assert that the Adjudicator’s decision that the Appellant’s family, including her husband (an Afghan national), could be expected to make their home in Azerbaijan was unreasonable, and contrary to the evidence. They assert that the Adjudicator failed to consider all the considerable language and cultural difficulties which would face the Appellant’s husband, Azerbaijan’s poor human rights record and the fact that the objective evidence (US State Department report) indicated widespread societal and government discrimination against non Azeri ethnic minorities. The Adjudicator’s findings that there were “no insurmountable obstacles to the Appellant making application from Baku to join her spouse in this country” was unreasonable and contrary to the evidence and it ignored the fact that the Appellant would be precluded for a period of three years from applying for entry clearance under the Immigration Rules, since her husband had only been granted exceptional leave to remain and this did not entitle his spouse or children under the age of 18 years to join him.

6. Mr. Mahmood indicated to us that he had not actually received a copy of the grant of permission to appeal. Since the hearing was being conducted via a video link with Birmingham, we adjourned while our clerk sent a copy of the grant to Mr. Mahmood by facsimile. On resuming the hearing he indicated that he had received and read it.

7. Mr. Mahmood submitted that the proper test to be applied when considering the Appellant’s Article 8 claim, was whether the conditions in Azerbaijan would offer her and her family a safe and durable place for them to pursue their family life. If, instead of them returning together to Azerbaijan, they were separated, then the question would be for how long they might be separated since the Appellant’s husband has only been granted exceptional leave to remain, and the Appellant would not be entitled to make an application to return as a spouse until such time as her husband had indefinite leave. It was not possible to know whether that would ever happen and, if so, when. Additionally, one had to bear in mind the effect of the Appellant’s removal on her children, and in particular, on Alexander, an 8 year old who arrived in the United Kingdom with the Appellant. Mr. Mahmood referred us to the Appellant’s husband’s statement included within her bundle. In paragraph 5, her husband had said:-

‘I love my wife and children very much and I have the family that I always dreamed of. If my wife and Alexander were returned to Azerbaijan, then my daughter would have to remain in the United Kingdom with me, and it would be very hard on us. It would severally affect my life [sic]. My wife and child would not be with me and it would be hard for me to cope. My family would be broken up’.

8. There was, submitted Mr. Mahmood, clear evidence before the Adjudicator as to what the circumstances to be. He referred us to what the Appellant herself had said in her statement. In paragraph 10, she had said:-

‘My son Alexander is currently attending school in Stoke-on-Trent. He has been attending school since November 2001. He is doing well, and he is settled. He has lots of friends, and loves playing football. He dreams of becoming a footballer and playing for Manchester United. He wins lots of awards from school. It would be very hard for him to leave the UK. It was very hard for him when we first came to the UK , though even in the UK, was not safe and that he could be killed [sic]. He was very afraid and he used to have nightmares because of what happened to us in Azerbaijan. He used to fear that someone was coming to kill him. He did not feel safe. He is very afraid of being returned to Azerbaijan.’

9. The Adjudicator had not dealt properly with the Appellant’s Article 8 claim and had not dealt with the son’s situation. The family would, if they were all returned to Azerbaijan, face considerable difficulties. While it is true that in the United Kingdom the Appellant’s husband faces considerable language and cultural difficulties, there is at least no widespread discrimination in the United Kingdom. He will face widespread societal and government discrimination in Azerbaijan. These are exceptional reasons why this Appellant should be permitted to ‘queue jump’ rather than be forced to leave the United Kingdom and make an application to return as the spouse of someone settled here, at some future uncertain date. It would be her husband’s choice whether or not to remain and then assist his wife to re-enter at a later stage if he were able to, or whether he should go with her to Azerbaijan. However, submitted Mr. Mahmood, the situation in Azerbaijan was very poor.

10. He referred us to objective material. In the Amnesty International annual report 2003, it showed that a referendum approved numerous changes to the Constitution. But the authorities reportedly pressurised and induced voters to approve the changes, and there had been allegations of widespread ballot irregularities. In October, the police broke into the headquarters of an opposition party in a move widely perceived as increasing harassment of the opposition. A number of religious organisations, mainly Muslim, were banned.

11. The US State Department report showed that a growing moneyed class had emerged in Baku and poverty nationwide had decreased, but 49 per cent of the population still lived below the poverty level. The Government’s human rights record remained poor. Arbitrary arrest and detention continued to be a problem. The Government took no action to punish abusers, although perpetrators were prosecuted in a few cases. The Government continued to restrict freedom of speech and press, and the press faced continued harassment throughout the year. Violence against women remained a problem. Discrimination against women and certain ethnic minorities were problems. The Government did not hold most members of the police accountable for their actions. The Constitution provides that persons of all faiths may choose and practise their religion without restriction, but there are some abuses and restrictions. Some officials were said, at times, to discriminate against members of minority religions. There had been small congregations of evangelical Lutherans, Roman Catholics, Baptists, Molokans (old believers in the Russian Orthodox Church), Seventh Day Adventists and Daha’is in the country for more than one hundred years. In the last ten years, a number of new religious groups that were considered ‘foreign’ or ‘non-traditional’ had been established. These include Pentecostal and Evangelical Christians, Jehovah’s Witnesses and Hari-Krishnas. There were some reports of Government harassment of these non-traditional groups. In many instances, abuse by officials reflected the popular prejudice against conversion to Christianity and other non-traditional religions. There was official concern regarding ‘foreign’ (mainly Iranian and Wahhabist Muslim missionary activity). There were also reports that the Government closed down Muslim groups and organisations, allegedly having ties with terrorism.

12. The importation of religious materials was restricted. In December, the State Committee for work and religious associations denied a Baku bookstore permission to import four hundred religious books on the grounds that the store was not a ‘religious organisation’. SCWRA officials told foreign diplomats that they had blocked the import of Islamic literature that did not accord with Azerbaijani values.

13. Hostility also existed towards foreign (mostly Iranian and Wahhabist) Muslim missionary activity, which partly was viewed as seeking to spread political Islam, and thus a threat to stability and peace. Ethnic Azerbaijanis have fled areas of Azerbaijan controlled by ethnic Armenians and Mosques in this area that had not already been destroyed did not function. He submitted that the situation in Azerbaijan was poor. He acknowledged that his reference in his grounds to widespread societal and government discrimination against “non Azeri” ethnic minorities was an error on his part. The cumulative effect of the problems this family would face, namely the fact that the Appellant is a Christian woman married to a Muslim who would be regarded as a foreigner, means that her removal from the United Kingdom would be disproportionate. As an Afghan citizen he would be in difficulty.

14. Counsel sought leave to call both the Appellant and her husband to give evidence to demonstrate that Afghan citizens are different from Azerbaijanis and would be recognisable as such. The Tribunal declined to grant leave.

15. Mr. Mahmood conceded that there was no objective evidence before us that showed that Afghanis suffer discrimination in Azerbaijan but, given the evidence as to how other nationals suffered, it was clear that this Appellant’s husband would also suffer, he submitted. The Appellant herself is from a minority religion and would face difficulties. The objective evidence clearly shows that officials discriminate against woman and Christians, and this Appellant’s husband would too. It would not, in the circumstances, be unreasonable for him to decline to return to Azerbaijan with his wife.

16. Additionally, Mr. Mahmood submitted that the Adjudicator had not adequately dealt with Alexander’s situation and the effect upon him on return to a country where he did not feel safe. He submitted that the appeal required further consideration by an Adjudicator other than Mr. Miller.

17. Mr. Jones reminded us that the only issue before us was the question of proportionality. He referred us to paragraph 55 (v) of the decision of the Court of Appeal in R (on the application of Mahmood) v Secretary of State for the Home Department [2001] INLR 1. The Appellant and her husband both knew before they were married that their immigration situation in this country was precarious. There were no insurmountable obstacles to the family living together in Azerbaijan. Despite the objective evidence referred to by Mr. Mahmood, the Adjudicator found that there would be no breach of the 1951 United Nations Convention on the Status of Refugees or of Articles 2 or 3 on returning the Appellant and while there was evidence to which Mr. Mahmood had referred, indicating that women still suffer discrimination and certain ethnic minorities also suffer, there was nothing to indicate that Afghani citizens suffer any discrimination. The discrimination to which this couple may be subjected did not, even when viewed cumulatively, amount to an insurmountable obstacle.

18. Insofar as there was any error in relation to the Adjudicator’s consideration of the effects of return on Alexander, and he indicated that he was not accepting that there was any such error, the Tribunal could correct it. It was clear from Mr. Miller’s very clear determination that he had carefully considered the objective evidence. In paragraph 7 he had said as much. There was no error in the Adjudicator’s approach. In any event, submitted Mr. Jones, it was clear from the document at page D18 of the Appellant’s own bundle, comprising a copy of the grant of status to the Appellant’s husband of 18 March 2002, that an application could be lodged and considered, even though the appellant’s husband had only been granted exceptional leave to remain, if there were compelling compassionate circumstances. He invited us to dismiss the appeal.

19. Mr. Mahmood drew our attention to page E19 of the objective material. In the US State Department report, there was a reference to the fact that many indigenous ethnic groups live in the country. The Constitution provides the right to maintain one’s nationality and speak, be educated and carry out creative activity in one’s mother tongue, or any language as desired. However, some groups have complained that the authorities restricted their ability to teach or print materials in indigenous languages. Separatist activities undertaken by Farsi-speaking Talysh in the South and Caucasian Lezghins in the North in the early 1990s, engendered some suspicions in other citizens and fostered occasional discrimination. Meskhetian Turks displaced from Central Asia, as well as Kurdish displaced persons from the Armenian occupied Lachin region, also complained of discrimination. A senior government official was responsible for minority policy. Some members of other ethnic groups also complained credibly about discrimination. Preventing this discrimination was said not to be a Government priority. There was no indication, Mr. Mahmood said, as to which minority ethnic groups were at risk. The Government clearly do not do anything about discrimination. He invited us to allow the appeal.

20. We reserved our determination.

21. We are most grateful to Mr. Mahmood for the very full, eloquent, courteous and helpful submissions he made to us. He dealt fully with all aspects of the appellant’s appeal.

22. We have concluded, however, that we must dismiss this appeal. We reminded ourselves of what the Master of the Rolls said in Mahmood. Having reviewed and analysed the Strasbourg Jurisprudence, he said:

‘From these decisions I have drawn the following conclusions as to the approach of the Commission and the European Court of Human Rights to the potential conflict between the respect for family life and the enforcement of immigration controls:

(i) A state has the right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations.

(ii) Article 8 does not impose on a State any general obligation to respect the choice of residence of a married couple.

(iii) Removal or exclusion of one family member from the State where the other members of the family are lawfully resident, will not necessarily infringe Article 8, provided there are no insurmountable obstacles for the family living together in the country of origin of the family members excluded, even though this involves a degree of hardship for some or all members of the family.

(iv) Article 8 is unlikely to be violated by the expulsion of a member of a family that has been long established in a State if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled.

(v) Knowledge on the part of one spouse at the time of marriage that the rights of residence of the other were precarious, militates against a finding that an order excluding the latter spouse violates Article 8.

(vi) Whether interference with family rights is justified in the interest of controlling immigration will depend on (1) The facts of the particular case and (2) The circumstances prevailing in the state whose action is impugned.’

23. At the time this Appellant married her husband, they were both aware that their immigration status in the United Kingdom was precarious. Mr. Mahmood suggested to us that the Appellant’s husband was aware that he would be granted exceptional leave to remain, prior to the Secretary of State having granted it. We accept that he may have believed that he would be granted exceptional leave to remain, but he could not possibly have known that he would be, any more than the Appellant could have done.

24. We have carefully considered the objective evidence in the Appellant’s bundle. There was no evidence before us to indicate that Afghani citizens suffer discrimination in Azerbaijan. The Appellant’s husband, is, of course, a Muslim. There is no evidence before us that he would have any difficulty at all in continuing to practise his religion. The objective evidence appears to suggest that hostility exists towards Muslim missionary activity, which partly is viewed as ‘seeking to spread political Islam and thus a threat to stability and peace’. While there were reports that the Government had closed down some Muslim groups and organisations, this was allegedly because they were thought to have ties with terrorists. We noted that there were several religious groups who had reported that they had not been registered with the Government, but this had not prevented them from functioning. We accept that there may be societal discrimination against women, but they are said by the US State Department’s report to enjoy the same rights as men.

25. We do not believe, having carefully considered the objective evidence before us, that there is any reason to think that this Appellant will, if she returns to Azerbaijan with her husband, suffer any ill-treatment or discrimination on account of her own religion, on account of her being married to an Afghani citizen, or on account of her having married a Muslim, or because these cumulative facts. Neither do we believe on the evidence before us that there is any reason to think that, were he to go to Azerbaijan with his wife, the Appellant’s husband will face any ill-treatment or discrimination on account of his being an Afghani citizen, on account of his being a Muslim married to a Christian, or because these cumulative facts, or, indeed, for any other reason.

26. We do not accept the Appellant’s claim in her statement that it would be hard for her son to leave the United Kingdom. To his credit, he appears to have settled down and adjusted to life in the United Kingdom well. We have no reason to believe that he will not do so on return to Azerbaijan. He will be supported by the Appellant, and, if he chooses to return with her, by his step-father. Given that he appears to have adjusted very quickly to a different culture and language in the United Kingdom, we believe that this will stand him in good stead on his return to Azerbaijan.

27. The circumstances prevailing in Azerbaijan, as set out in the objective material before us, will mean that there will be some degree of hardship for the Appellant and her husband on their return to Azerbaijan in terms of housing and employment, but we find that there are no insurmountable obstacles to the Appellant and her husband returning to live in Azerbaijan with their children and for all these reasons have concluded that we must dismiss this appeal.

28. Appeal dismissed.

Richard Chalkley
Vice President