The decision


EA (Article 8 – entry clearance- delay) Iraq [2004] UKIAT 00236

Date of Hearing: 3 August 2004
Determination prepared: 3 August 2004
Date Determination notified: 25 August 2004


Mr Andrew Jordan (Vice President)
Mr M.G. Taylor CBE
Mr S. S. Percy





For the Appellant/Secretary of State: Mr M. Davidson, Home Office Presenting Officer
For the Respondent/Claimant: Mr E. Nicholson, Counsel, instructed by Wilson & Co., Solicitors,

1. The Secretary of State appeals against the determination of an Adjudicator, Mr C. G. Blake, promulgated on 27 October 2003 allowing the Claimant's appeal under Article 8 of the ECHR. The Adjudicator dismissed the Claimant's appeal on asylum and Article 3 grounds.

2. The Claimant is a citizen of Iraq, born on 9 February 1969, who is now 35 years old. She entered the United Kingdom on 21 June 1997 and claimed asylum three days later on 24 June 1997. The Secretary of State refused her asylum claim by a decision dated 22 February 2001. The Claimant's immigration history is not clear from the papers before us but it appears she must have been given some sort of leave to remain because the decision of the Secretary of State gave rise to a right of appeal under section 69(3) of the Immigration and Asylum Act 1999. The Claimant appealed and the Adjudicator subsequently decided that there were special circumstances permitting the Claimant to appeal out of time.

3. The Claimant was born and brought up in Karbala. Having completed her education, she trained as a teacher but refused to join the Ba'ath Party. She suffered at the hands of the authorities until her father decided that she should leave Iraq. She left the country in February 1997 and travelled to Jordan. By the time she arrived in the United Kingdom she was an ill woman and in need of medical treatment that was not available to her in Jordan.

4. Whilst in the United Kingdom she met …………….. The civil ceremony of marriage took place on 31 October 2000. Her husband is also from Iran and had come to the United Kingdom in 1992 or 1993. The Claimant applied for leave to remain in the United Kingdom as a spouse by an application lodged on 17 June 2002. The Secretary of State has made no decision on that application. This may have been a conscious decision, enabling the Secretary of State to await the outcome of the Claimant‘s asylum/human rights appeal.

5. The Adjudicator was relieved of the obligation of reaching a decision under the Refugee Convention or under Article 3 as a result of the fall of the regime of Sadaam Hussein. The Adjudicator concluded, quite properly, that there was no basis upon which either claim could succeed in October 2003. There is no appeal against that finding.

6. The Adjudicator then went on to consider the Claimant's Article 8 claim based upon her marriage to Mr ………….. The Adjudicator's determination is permeated by his frustration at the Secretary of State's conduct and of his handling of the application, culminating in the fact that he chose not be represented at the hearing before the Adjudicator. See paragraphs 2, 6, 31 and 33 of the determination by way of example. Indeed, in paragraph 35 of the determination, the Adjudicator concluded his determination by calling to mind the catalogue of failure, as the Adjudicator saw it to be, on the part of the Secretary of State.

7. There is no dispute that the Claimant and her husband enjoy family life together and are attached to each other. Mr …….. is settled in the United Kingdom, thereby providing the Claimant with an opportunity to apply for settlement as his spouse. The appeal has not been argued on the basis that Mr and Mrs ……… should be required to re-locate permanently in Iraq. Rather, the position adopted by the Secretary of State is that the Claimant should make an application for entry clearance under the Immigration Rules. The Adjudicator found that, were the Claimant to be removed to Iraq in order to make a claim for settlement, the removal would be an interference with her existing family life. Such a finding, of course, presupposed that the Claimant's spouse would not accompany her during her absence abroad. It was not suggested that her husband could not do so. The grounds of appeal by the Secretary of State to not, however, raise a direct challenge to the Adjudicator's finding that there would be an interference with existing family life and we do not propose to re-open that element of the appeal.

8. The challenge made by the Secretary of State in the grounds of appeal is a direct challenge to the Adjudicator's treatment of proportionality. The Adjudicator found that it would be disproportionate for the Claimant to be required to leave the United Kingdom in order to make an application for entry clearance under the Immigration Rules. His reasoning is found in paragraph 33 of the determination:

"The law about the application of Article 8 in removal cases is contained in a number of recent decisions, the most important of which is that of the Court of Appeal in Mahmood. The court then made it clear that it would only be in exceptional circumstances that the right to respect for family life under Article 8 would not give way to the accepted and legitimate aim of immigration control which has been recognised, albeit not explicitly, as falling within the qualification in Article 8 (2). The Court did not define what it meant by exceptional circumstances but indicated there would have to be insurmountable obstacles to the non-resident or non-citizen spouse returning abroad to make an application for return under the Immigration Rules. I have no doubt that there are such obstacles in this unusual case. In the first place, British diplomatic representation in Iraq is severely restricted at present and I doubt that an active entry clearance service is provided. It is true that the appellant could go to another country such as Syria or Jordan where such services do exist but her state of health is such that it would not be reasonable to expect her to do so. It is possible that her husband might be able to accompany her were she the go abroad, but in the circumstances of this case, it seems to me that that would be a futile and pointless exercise. The respondent has known about this application for over one year yet has failed entirely to respond to the appellant's solicitors when they repeatedly asked for information. This is a dereliction of his public responsibilities even if he had been minded to refuse the application. I accept that he is not bound to deal with such an application whilst an asylum claim remains outstanding but it would have been both sensible and humane to have done so. To persistently ignore the letters from solicitors is not good public administration. I was told by Mr Jackson that one letter sent to the Deputy Director of the Immigration and Nationality Department had produced the response that the matter had been passed to a case working section to be dealt with. This letter was sent many months ago yet nothing further had been done about the case. It seems to me self evident that the respondent had taken a specific decision to refuse to address the application until the asylum claim had been concluded. At the very least, the respondent should have indicated what his position was about the claim, when it would be addressed and would also have assisted me to know what his attitude was to the claim in the context of the asylum appeal. I was not provided with any such assistance."

9. The Secretary of State has appealed against the Adjudicator's decision that the Claimant's removal would be a violation of her Article 8 rights. The grounds of appeal challenge the Adjudicator's conclusion that the Claimant's spouse should not be expected to accompany her whilst he makes her application for entry clearance. Secondly, the grounds of appeal challenge the Adjudicator's conclusion that there are no facilities to seek Entry Clearance in Iraq. This ground was not pursued before us. Indeed, we understand that it is now accepted there are no such facilities in Iraq. The grounds, however, assert that the Adjudicator was in error in concluding that the Claimant's health prevented her seeking entry clearance in Syria or Jordan. We have heard no argument on whether there are any facilities in Syria. This is unnecessary because the Secretary of State has designated the Embassy in Jordan as the foreign post at which applications for entry clearance by Iraqi nationals can be made.

10. The issue of the Claimant's health was canvassed before the Adjudicator. In paragraph 24 of the determination the Adjudicator recorded the report from the Claimant's GP in which he classified the Claimant's main problems as incontinence and infertility. She was receiving treatment for both. The incontinence had arisen following a fall whilst the Claimant was still in Iraq.

11. Mr Davidson, who appeared on behalf of the Secretary of State, relied upon DM(HDZ) Croatia*CG [2004] UKIAT 000 24 (Ouseley J., President) in which the Tribunal said in paragraph 28:

"The starting point should be that if in the circumstances the removal could reasonably be regarded as proportionate, whether or not the Secretary of State has actually said so or applied his mind to the issue, it is lawful. The Tribunal and Adjudicators should regard Shala, Edore and Djali as providing clear exemplification of the limits of what is lawful and proportionate. They should normally hold that the decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances. However, where the Secretary of State e.g. through a consistent decision-making pattern or through decisions in relation to members of the same family, has clearly shown where within the range of reasonable responses his own assessment would lie, it would be inappropriate to assess proportionality by reference to a wider range of possible responses than he in fact uses. It would otherwise have to be a truly exceptional case, identified and reasoned, which would justify the conclusion that the removal decision was unlawful by reference to an assessment that removal was within the range of reasonable assessments of proportionality. We cannot think of one at present; it is simply that we cannot rule it out. This decision is starred for what we say about proportionality."

12. We are satisfied that the Adjudicator was correct in identifying the need to find exceptional circumstances sufficient to render the removal decision unlawful or the existence of insurmountable obstacles preventing an out-of-country application. The Adjudicator found that these circumstances or obstacles existed by reason of a combination of the absence of diplomatic representation in Iraq and the Claimant's state of health. It is those findings that are challenged by the Secretary of State. The existence of a viable option of making an application for entry clearance was considered by the Tribunal in HC (Availability of Entry Clearance Facilities) Iraq [2004] UKIAT 00154, (Mr A. Jordan, Chairman). The Tribunal first considered the relationship between the use of the Immigration Rules and issues of proportionality:

10. In Baljit Singh [2002] UKIAT 00660, the appellant applied for leave to remain as the fiancé of a British citizen. It was accepted that he and his fiancée shared a family life together with her two children of a previous marriage. His partner was partially immobile as a result of an industrial accident and one of the children was in the middle of GCSE examinations. The Tribunal commented on the adjudicator’s concentration upon whether there were insurmountable obstacles in the way of the family following the appellant to India. The Tribunal did not criticise the legitimacy of such an approach but focussed on the consideration of the viable option of making an out-of-country application for entry clearance as a spouse. Consideration to this option was all the more important given the fiancée’s refusal to leave the United Kingdom. Such an option was a more immediate and sufficient reason for concluding that the decision to remove was proportionate as it did not represent any conclusive disruption of the appellant’s family life. The appellant was not faced with any permanent or even long-term exclusion from continuing family life in the United Kingdom. The option afforded the appellant a right of appeal against a refusal and both the decision of the Entry Clearance Officer or Immigration Officer and any subsequent appeal had the in-built right to require that any decision was compliant with the appellant’s human rights. Thus, the existence of a legal avenue abroad is sufficient to render the removal proportionate and it will only be in exceptional circumstances that the decision will not be so. This accords with the decision in the Court of Appeal in Mahmood [2001] Imm AR 229 that there should be equality of treatment between those who have entered the United Kingdom and those who apply from abroad or, as Laws LJ said at paragraph 23 of the judgment: “…it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin.”

11. Exceptional circumstances were not said to exist where the effect of separation was likely to require the remaining spouse to become dependant on public funds for subsistence, even in a case where the remaining spouse was partially disabled. (See Baljit Singh itself.) Nor where the separation will result in the appellant losing his job (as would normally occur), even where there was no guarantee that the same or a similar job would be available on return. (See Mahmood.) The Entry Clearance Officer can be expected to have regard to the appellant’s work-record as evidence of the appellant’s and his partner’s ability to maintain and accommodate themselves without recourse to public funds. It is not an exceptional circumstance that the appellant runs the risk of failing in an application for entry clearance. Indeed, it is plainly arguable that Article 8 should not be used as a means of circumventing the provisions of the Immigration Rules.

12. Exceptional circumstances may be established where the returning appellant is unable to make an effective application for entry clearance from abroad either because there are no facilities for making such an application in his country of nationality or by travelling to a neighbouring country, (Soloot (01/TH/1366) or if there is a prolonged delay rendering the period of separation disproportionate, (Mahmood).

13. The Tribunal concluded:

26. For these reasons, we consider that there is a viable option available to the claimant to return to Iraq and apply for entry clearance as a spouse. Although this will involve travel to Jordan, we do not consider that the difficulties are such as to render the decision of the Secretary of State disproportionate.

14. The Adjudicator anticipated that the Claimant could go to another country such as Jordan where United Kingdom diplomatic representation exists capable of dealing with an application for entry clearance. He did not have sight of the Tribunal’s determination in HC (Availability of Entry Clearance Facilities) Iraq [2004] UKIAT 00154 but rejected the option as inappropriate because of the Claimant’s ill-health. Yet the evidence before the Adjudicator as to the Claimant’s health was limited to the Claimant’s GP’s report that she had problems with incontinence and infertility and that she was receiving treatment for both. In our judgment, these difficulties do not prevent her travelling either to Iraq or Jordan. Mr Davidson pointed out that her medical condition (so the Adjudicator found) was not sufficiently serious to engage an Article 3 violation were she to return. That being the case, it was said to be illogical to find that the same medical condition rendered her return unlawful under Article 8 and the balancing exercise required to determine whether the removal was proportionate. On this aspect, we do not agree with Mr Davidson's submission. When considering proportionality, the level of ill health does not need to reach Article 3 severity before it can be taken into account. Irrespective of this and for the reasons that we have given, we consider that the Adjudicator's determination on Article 8 is flawed.

15. There is, however, another reason why it is inappropriate to use Article 8 as a substitute for an application for entry clearance. In cases where there is a viable option of applying under the Immigration Rules, it is likely to be extremely rare that the Claimant will succeed under the European Convention on Human Rights, though likely to fail under the Rules. Where leave to enter or remain is sought, the primary decision-maker is either the Secretary of State or the Entry Clearance Officer. It is open to the Entry Clearance Officer to interview the applicant and require that he provides documentary evidence in support of his application. In cases where the application is made out-of-country, the Entry Clearance Officer will often have valuable local knowledge that an Adjudicator will not possess. In many cases, the assessment of the facts will often best be made by the primary decision maker. We do not consider that, where there is a viable application under the Rules, whether in- or out-of-country, the Adjudicator should seek to second-guess the decision in an entry clearance case under the umbrella of an Article 8 claim. It has to be remembered that if the Entry Clearance Officer or the Secretary of State is in error, the applicant has an in-built right of appeal as well as a right to require that any decision made complies with his human rights.

16. In our judgment, the present appeal may be a case in point. The Claimant’s application is based upon her marriage to …………... In her original application for entry clearance, however, found at section B of our papers, the Claimant described herself in 1997 as a married woman. See box 15. Indeed, although she originally described herself as single, the tick provided in the appropriate box has been etched over and the box marked “married”, ticked. In answer to question 16, she gives her husband's name as Salim Hassan Said. This does not appear to be the same person as ………... We were also referred to paragraph 56 of her statement of 29 July 2003 in which she apologises for having stated in her asylum interview that she was single when she was indeed married. It is clear that this paragraph does not refer to her marriage to ……………. We do not know what the explanation for this is. Nor did we consider it appropriate to ask Mr Nicholson to take instructions on the matter. For the purposes of this appeal, we are content to decide the issue on the basis that there is a valid explanation. That does not, however, answer the problem that if there are issues as to the validity of a marriage, they are unlikely to be satisfactorily resolved in Article 8 proceedings. Mr Nicholson submitted that the level of scrutiny in a marriage application may well be greater. We accept this may be so but that is no reason why Article 8 should operate as an easier alternative. We reject his submission that the Human Rights Act should be used to cut through the requirements of the Immigration Rules.

17. We were not persuaded that there are any insurmountable obstacles in the Claimant seeking leave to enter by applying to do so under the Rules in Amman.

18. We have also considered the delay in processing an application for entry clearance. It is not necessary to determine whether it is for the Claimant to establish that the delay in likely to be disproportionate or whether it is for the Secretary of State to establish that the interference is proportionate and, therefore, to adduce positive evidence about average waiting times. In the present case we have no information as to the likely period the application will take to process. There is no material upon which we could properly infer that the delay will be inordinate. If the appellant wished to advance that point, it would have been open to her to write to the Embassy in Amman and make enquiries. On a practical level, at hearings before an adjudicator, the appellant is entitled to raise Article 8 issues, the precise nature of which may well not emerge prior to the hearing. A Home Office Presenting Officer (even if present) will be unlikely to know the current state of the waiting lists in all of the British Missions across the world. Consequently, it may be relatively unlikely in most appeals of this type for the adjudicator to have evidence as to how long an out-of-country application will take.

19. There is, however, a more substantial point than whether the burden of proving a disproportionate delay falls upon the Claimant. We find it difficult to envisage the circumstances in which the delay in dealing with an application would result in a violation of an applicant's human rights, unless, perhaps, the delay is so long that, irrespective of any excuse, no one in good conscience could disregard it. Our reason for saying this is because it will be impossible for an Adjudicator to form a judgment on the operational reasons for the delay. Delays are normally occasioned by shortage of staff, but may be occasioned by security or other considerations. A shortage of staff may arise through lack of resources or an inability to recruit suitable personnel. It is entirely within the policy-making discretion of the Secretary of State to determine the budget for any given overseas Mission. It is not for an Adjudicator to decide that more resources should be directed towards entry clearance applications as opposed to official entertaining, maintaining buildings or Embassy cars. An Adjudicator will, of course, be entirely unaware of the ease (or difficulty) the Foreign Office, or the Home Office, encounters in the recruitment and training of staff, particularly in a foreign Mission. On a wider scale, only government can determine the resources it will allocate to the Foreign Office or the Home Office and whether those resources should be expended on immigration control, law and order, education or health. If an Adjudicator determines that a delay of six months is disproportionate, he is determining that the Secretary of State should expend more resources in the particular budget with which the Adjudicator is concerned in the appeal before him. The Secretary of State is concerned with the nation’s resources overall. We do not see how, in assessing proportionality, an Adjudicator can arrogate to himself that responsibility.

20. Mr Davidson sought to introduce medical evidence that was served on the Tribunal on the day of the hearing and which is dated 27 July 2004, some seven days before. The report from Dr Faruqui from the West London Mental Health Trust diagnoses the Claimant as suffering from a moderately severe depressive disorder with PTSD said to be as a direct consequence of torture and humiliation she faced whilst in custody in Iraq. Those events, of course, took place prior to the Claimant's flight to Jordan in February 1997 and whilst Iraq was governed by Sadaam Hussein. It is, perhaps, significant that she fled to Jordan in 1997 where she remained for about four months before coming to the United Kingdom. There is no suggestion that appropriate medical facilities are not available in Jordan during her temporary return there. In our judgment, a return to Jordan for the purposes of seeking entry clearance, with or without her husband, is not rendered disproportionate as a result of her medical condition.

21. A final point was taken by Mr Nicholson. He submitted that detailed submissions were made in relation to difficulties in obtaining a travel document to enable the Claimant to travel to Iraq. The Adjudicator did not deal with these matters. Regardless of what evidence existed in relation to this issue, if the Secretary of State cannot arrange appropriate travel documentation for this Claimant, she cannot be returned to Iraq. If she cannot be returned to Iraq, there can be no violation of her human rights. This is the point made by the Tribunal in YL (Nationality-Statelessness-Eritrea-Ethiopia) Eritrea CG [2003] UKIAT 00016 (Dr HH Storey, Chairman) in which it was said:

62…The judgment in [Saad, Diriye and Osorio [2001] EWCA Civ 2008 [2002] INLR 34] clearly holds that the existing appeal structure governing appeals against refusal of asylum entitles appellants to a decision in relation to refugee status. In each case the decision facing the appellate authority is the hypothetical one of whether removal would be contrary to the Convention at the time of the hearing – i.e. on the basis of the refugee status of the appellant at that time. Accordingly, even if there are practical obstacles in the form of a refusal by the authorities of the receiving state to re-admit an appellant, the appeal on asylum grounds nevertheless requires substantive consideration on the hypothetical basis of whether – if returned – an appellant would face a real risk of persecution.

63. However, we cannot see that the same principle applies in respect of human rights grounds of appeal. The decision appealed against is one and the same but, in contrast the position under the Refugee Convention, success in a human rights appeal does not in itself result in any status at international law, nor indeed in domestic law. Furthermore Strasbourg jurisprudence considers that practicalities in relation to return are of central importance. If the threat of removal is not imminent then there can be no violation of the Convention: see Vijayanathan and Pushparajah v France (1993) 15 EHRR 62. Plainly if Home Office policy is either not to remove or to return to the UK persons whom destination countries will not accept as entitled to return, there is no meaningful sense in which there can be said to be an imminent threat of removal in the case of persons falling under this policy.

22. For these reasons, we are satisfied that the Adjudicator made an error of law in his assessment of the Article 8 claim. In our judgment, the Claimant's return to Iraq for the purpose of seeking entry clearance in Amman will not violate her rights to private or family life.

Decision: The appeal of the Secretary of State is allowed.

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