The decision

RS (Spouse’s pending claim: removal bar?) Sri Lanka [2004] UKIAT 00195

Heard: 02.07.2004
Signed: 06.07.2004
Sent out: 16.07.2004


John Freeman (a vice-president)
Mrs ME McGregor and
Mr BD Yates



Secretary of State for the Home Department,

Miss G Peterson (counsel instructed by MK Sri & Co) for the appellant
Mr P Deller for the respondent


This is an appeal from a decision of an adjudicator (Mr AM Kopięczek), sitting at Hatton Cross on 23 September 2003, dismissing an asylum and human rights appeal by a Tamil citizen of Sri Lanka. Permission to appeal the adjudicator’s decision under article 8 of the Human Rights Convention was given on the basis that the fact that the claimant’s wife had a asylum and human rights appeal pending was regarded by the adjudicator as “no bar to her returning to Sri Lanka with her husband and children”.
2. Since both the adjudicator and the vice-president who gave permission were writing, the ground-rules for article 8 cases were radically altered by [2004] UKIAT 00024 M* (Croatia), which does not seem to have been affected by the decision of the House of Lords in Razgar [2004] UKHL 27. There the House made clear that article 8 cases required a high level of interference with rights before an appeal could succeed: from 24 M* it seems that the question for the appellate authorities is whether any reasonable Secretary of State could have pursued removal in the light of such interference. Decisions such as ul-Haq [2002] UKIAT 04685 (the present writer) and Xhacka [2002] UKIAT 03352 (Collins P, saying expressly that it was not to be taken as a precedent for any other case at all), though produced by Miss Peterson, were wisely not relied on by her in the current state of the law: they should not be cited again.
3. The relevant history is as follows:
22.03.1996 claimant first applies for asylum: refused and appeal dismissed
11.08.1997 claimant returns by car from Spain: re-applies for asylum
07.1999 claimant meets wife (asylum-seeker from Sri Lanka) here
21.08.1999 claimant and wife go through religious ceremony of marriage
21.07.2000 Tharshika ♀ born
11.2000 wife’s claim refused
11.04.2001 wife makes fresh claim for asylum and on human rights
02.02.2002 removal directions served on claimant
12.05.2002 Liyoshika ♀ born

4. There has still been no decision on the wife’s fresh claim (even as to whether it is one, in its asylum aspect). This is a wholly unsatisfactory situation, where it must have been known to the Home Office for some time that these parties have not only been living as man and wife, but have had two children together. Mr Deller was unable in the course of a short adjournment to get us any indication of progress on her claim; so we are left with a situation without any resolution in sight and, we suspect, all too familiar to adjudicators. We hope what we are going to say may be some help in dealing with it in future.
5. The way Miss Peterson put her case in her “skeleton argument” is this:
… what was relevant is that the Appellant had been in the United Kingdom for two years without having his status determined at the time of his marriage, and nearly five years before his claim was ultimately refused, by which time his first child was born, another was on the way, and he had started a business with his wife. Another year passed before his appeal was heard, and he has now been in the United Kingdom almost seven years. Similarly his wife’s fresh application for asylum and under the Human Rights Act has not been dealt with in a timely fashion, and her status remains undetermined.
6. This, said Miss Peterson, would justify the Tribunal in allowing the appeal in line with Shala [2003] EWCA Civ 233, or else (it is not clear why) sending it back for a fresh hearing. As will be clear to those who have read 24 M*, Shala is a decision on its own particular facts, where, if the Home Office had decided the application at the proper time, their policy then would at least have led to a grant of exceptional leave to remain. No such policy applied here. Miss Peterson did suggest that, if the claimant’s asylum application had been decided at the proper time, then as things stood in Sri Lanka in those days, it might well have been granted. However, to see whether that was right or not, we should in effect have had to retry the asylum case, on which permission to appeal was (quite rightly) not even asked for, and on a set of background facts of historical interest only. That cannot be justifiable.
7. The other feature of Shala is that, if the Home Office had acted at the proper time in accordance with their own published policy, then the leave to remain granted to the claimant would have enabled him to make a marriage application, with a right of appeal from within the jurisdiction if refused. While that might have applied here, to the extent that the religious ceremony gone through was recognized at least as setting the seal on a long-term relationship, there was of course no such policy in force in the first place. There is and was in fact no Home Office policy which would have entitled this claimant to leave to remain at any time. Not until Tharshika reaches the age of 7 in 2007 will the policy against the removal of young children who have spent their lives here till that age apply.
8. The House of Lords in Razgar [2004] UKHL 27 took the view that there was a “small minority of exceptional cases” where removal would be disproportionate to the legitimate purpose of immigration control in terms of article 8.2 of the Human Rights Convention. While we acknowledge that this claimant and his wife have built up an entirely worthy family life in this country, that to an extent must be its own reward. As we pointed out to Miss Peterson, we must assume that they got married and had children together because they loved each other, and not merely to take advantage of the Home Office’s inaction. So far as that is concerned, however, they have gained, not lost by it. The delay in this case is regrettably common: we have to say that we should not regard such delay as exceptional, where removal following it broke none of the Home Office’s published policies.
9. It follows that, if there is an exceptional element in this case, it is only to be found in the wife’s having a pending claim to remain here. As Mr Deller rather elegantly put it, that is not by definition a bar to return to one’s country of origin, but only to removal there by Her Majesty’s Government. In this case the claimant and his wife are represented by different firms of solicitors, and Miss Peterson was unable to provide us with any details at all of her claim. We do not know why the claimant’s solicitors did not ask those acting for his wife to get her consent to release details of her claim: no doubt as the two of them are on good, not to say devoted terms, that could easily have been done.
10. Without any details of what the wife’s claim is based on, it is impossible for us to say that in her individual case it represents any bar to her returning to Sri Lanka with the claimant. While she has renewed her asylum claim, there is nothing to show that her fresh claim (if it is one) is based on anything more than the one previously rejected. If there was any appeal against that, as to which we have heard nothing, there is none outstanding.
11. So far as her human rights claim is concerned, if that for some reason raised an arguable case of article 3 risk on return, which did not arise on the previous asylum application, then it might reasonably be regarded as a bar to her return till any appeal had been dealt with; but there is nothing at all to show that is so. For all we know, the wife’s human rights claim is based on nothing more than the suggestion that it would be disproportionate in terms of article 8.2 to remove her while her husband’s present claim is pending. To allow two such arguments to succeed on what would be a wholly circular basis would in our view bring the whole appellate process into well-deserved disrepute.
12. It follows that we see no reason on the evidence before us why this claimant and his whole family should not go to Sri Lanka: though the children were born here, they are too young to have started school. So far as the parents’ business is concerned, they would have to wind it up; but, even if there were no money to be made by that, they have no doubt managed to make some as they went along,
which would stand them in good stead in a country with a much lower standard of living than this. We regard the adjudicator as fully justified in the decision to which he came, including the point on which permission to appeal was given.

John Freeman