The decision

Heard at: Field House

AM (Inability to make entry clearance application) Somalia [2004] UKIAT 00276
On 26 July 2004


Date Determination notified:

....30th September 2004....


Mr D K Allen (Vice President)
Mr P R Lane (Vice President)
Mrs W Jordan







For the appellant: Ms S Kudhail, Solicitor, of O’Keeffe, Solicitors
For the respondent: Mr C Buckley, Senior Home Office Presenting Officer


1. The appellant, a citizen of Somalia, appeals against the determination of an Adjudicator, Mrs Linda Freestone, sitting at Stratford, in which she dismissed on asylum and human rights grounds the appellant’s appeal against the decision of the respondent to give directions for the appellant’s removal from the United Kingdom.

2. Permission to appeal to the Tribunal was refused by a Vice-President but that decision was reversed under section 101 of the Nationality, Immigration and Asylum Act 2002, by Collins J. The terms of that reversal are as follows:

“The [appellant] arrived in the United Kingdom in August 1999. He claimed asylum in November 1999 but was not interviewed until March 2002. Following subsequent refusal, his appeal was not heard until November 2003. It is accepted that he has married and has a family life here, albeit the marriage took place when his immigration status was precarious. Having regard to the undoubted problems in getting an Entry Clearance from Somalia and the fact that (as I am told) his wife is a refugee, her inability to return with him is a factor which should have been but does not seem to have (at least not expressly) taken into account”.

3. The following facts are not in dispute. The appellant married Ismahan Dahir Ali on 25 June 2001. This was at a time when his immigration status was precarious. It preceded by some 18 months the respondent’s decision to give directions for the appellant’s removal from the United Kingdom.

4. The appellant’s wife is also from Somalia. The respondent granted her refugee status on 26 March 1996. She is now a British citizen.

5. The issue in this case is whether the Adjudicator was correct to conclude that it would not be a disproportionate interference with the appellant’s family life with his wife in the United Kingdom to require the appellant to leave this country and make an application from outside it for entry clearance to join his wife as her spouse.

6. All that the Adjudicator had to say about this matter in her determination is as follows:

“49. Although there will be difficulties for the appellant to return to Somalia and apply to obtain leave to enter from the Entry Clearance Officer in the normal way I do not find that these difficulties are insurmountable obstacles”.

7. Mr Buckley did not seek to deny that the Adjudicator was wrong to conclude (at least impliedly) that an Entry Clearance Officer is currently stationed in Somalia, who would be able to process the appellant’s entry clearance application from within that country. Indeed, the United Kingdom has not had diplomatic staff stationed in Somalia for a considerable period of time.

8. Mr Buckley, however, submitted that the appellant could return to Somalia and there obtain a Somali passport, which he could then use to enter Kenya. Once there, the appellant could apply to the British High Commission in Nairobi for entry clearance to join his wife.

9. Even if that were not possible, however, Mr Buckley submitted that the appellant had entered the United Kingdom with an unmeritorious claim for asylum and had married, notwithstanding that his status in this country was precarious. Both he and his wife knew this to be so, at the date of the marriage in 2001. Accordingly, it could not be said to be unreasonable for the Secretary of State, in pursuance of immigration control, to require the appellant to leave the United Kingdom, even if that had the effect of separating him permanently from his wife.

10. The Tribunal considers that Mr Buckley’s second submission, if adopted, would effectively undercut the Court of Appeal judgments in Mahmood [2001] 1 WLR 840. Although at paragraph 65 of those judgments, Phillips MR held that the possibility that a claimant may not satisfy the requirements of the Immigration rules relating to entry clearance was not a sufficient reason to exempt him from those requirements, the logic of Mr Buckley’s alternative submission is that the importance of immigration control is such that the appellant should be removed in circumstances where he could not in practice even make an application for entry clearance to re-join his wife. This is a very different proposition from saying that a person must apply in the normal way from abroad and take his chance that he might not be successful under the Rules. It is true, as Mr Buckley said, that the appellant has never had a legitimate reason to be in this country. But the same was true of the claimant in Mahmood (see paragraph 4 of the judgments) and yet the Court nevertheless proceeded to analyse the case by reference to whether there were insurmountable obstacles to family life being continued between the claimant and his wife and children, if effect were given to the decision that he should be removed from the United Kingdom.

11. The Tribunal therefore turns to the first submission of Mr Buckley, as recorded at paragraph 8 above. Although the test of whether there are “insurmountable obstacles” was applied by the Court of Appeal in Mahmood in relation to the question of whether family life could be carried on abroad, the Tribunal considers that the it also has a part to play in determining whether it would in circumstances be disproportionate to require the appellant to comply with the ordinary provisions of the Immigration Rules by making an application from abroad.

12. In the present case, the respondent does not seek to resist the submission on behalf of the appellant that there are insurmountable obstacles in the way of him and his wife seeking to carry on family life in Somalia. Are there, then, insurmountable obstacles to the appellant’s making an entry clearance application from Kenya?

13. On the evidence before us, the Tribunal finds that there are. First, the evidence is far from showing that there is at the present time any functioning system in Somalia, whereby the appellant could obtain the passport which he needs to enter Kenya. In his letter of 14 July 2004, the Kenyan High Commissioner in London confirms that, in order to enter Kenya, a person must be in “possession of a valid passport and a visa (where required). They must also be returnable to their country of residence”. The appellant lacks any passport.

14. Paragraph 6.78 of the April 2004 CIPU Report on Somalia states that most Somalis requiring a passport or other form of ID “arrange such documentation informally”. Identity papers and passports can be obtained for payment in the markets of most towns in Somalia and in Djibouti and Nairobi (Kenya)”. Mr Buckley quite rightly did not try to suggest that the appellant could be expected to enter Kenya by availing himself of such “informal” documentation. Instead, Mr Buckley relied upon the following passage from the same paragraph:

“In September 2002 it was reported that a new Passport Office had been opened by the TNG [Transitional National Government] in Mogadishu”.

15. The source for this information is the UN Office for the Co-Ordination of Humanitarian Affairs, Integrated Regional Information Network (IRIN) and, in particular, what appears to be an article or press release entitled “Passport Office opened” published on 4 September 2002.

16. The wording of the sentence from paragraph 6.78 just quoted makes it plain that IRIN itself does not appear to have direct knowledge of whether a new Passport Office was in reality opened by the TNG in 2002. We do not know what the source is of the report in question. Given the uncertain state of affairs in Mogadishu (as acknowledged in the CIPU report) and the fact that the TNG’s mandate expired in August in 2003, (although the National Salvation Council is recorded at paragraph 4.57 of the CIPU report as having signed a memorandum understanding acknowledging the continuance of the TNG), the Tribunal considers that there must be significant doubt whether the appellant would in practice today to be able to obtain from the TNG in Mogadishu a passport which would be acceptable to the Kenyan government.

17. Even if he could, however, he would face a further serious problem. On 25 November 2003 the British High Commission in Nairobi wrote to the Refugee Legal Centre to say that, as a result of the security situation in Kenya, no new applications for entry clearance were being accepted by the High Commission “at this moment in time”. There is no evidence before the Tribunal to show that the High Commission has again begun accepting such applications. Accordingly, even if the appellant were able to enter Kenya, it does not appear on the evidence before us that he would be able to pursue his application for entry clearance.

18. It was not submitted on behalf of the respondent that the appellant could make an entry clearance application from some other country.

19. In conclusion, the Tribunal finds that there are, in the present case, insurmountable obstacles to the appellant’s making an entry clearance application from outside the United Kingdom. In all the circumstances, it would be a disproportionate interference with his right to respect for family life under Article 8 of the ECHR, to require him to leave this country. Although the appellant had no legitimate reason to enter the United Kingdom, there is no suggestion that his marriage to his wife is other than genuine. The requirements of immigration control are not served by requiring a person in the position of this appellant to go to a country or countries where he would not have any prospect of making an application to an Entry Clearance Officer for leave to enter, whether by reference to the Rules or to the ECHR, or to both.

20. This appeal is accordingly allowed.

P R Lane
Vice President

Approved for electronic promulgation