Rahman v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE LAWS: This is an appeal with permission granted by Moses LJ on 3rd November 2005 after hearing the appellant in person, but assisted by her husband, against a decision of the AIT presided over by Senior Immigration Judge Perkins given on 24th May 2005. The AIT dismissed the appellant's appeal against the determination of the adjudicator which had been promulgated on 12th May 2004. In his turn the adjudicator had dismissed the appellant's appeal against a decision of the Secretary of State made on 21st January 2004 refusing the appellant's asylum claim and setting directions for her removal to Iraq.

2. The appellant was granted leave to appeal from the adjudicator on 16th August 2004 on one ground only, namely that the adjudicator had failed to give proper consideration to her claim under Article 8 of the European Convention on Human Rights. So it was that the AIT was not concerned with the asylum claim, nor indeed with any claim save that made under Article 8, and nor are we. The appeal came before Auld, Rix and Hallett LJJ in November not long after permission was granted, but was then adjourned with a direction that it be heard before the end of this term.

3. The appellant is a citizen of Iraq, born on 1st January 1976. She applied for asylum on arrival in the United Kingdom on 4th July 2003. In barest outline the essence of her claim was that she feared revenge attacks from Kurdish opposition parties and Kurdish families because her father had worked for the Saddam Hussain regime. The father had been shot and wounded in 1999. When the war in Iraq began he tried to hide, but he and the appellant's mother were killed by the Pashmerga in a revenge attack. The adjudicator accepted the essence of the appellant's account, but held that she could relocate in a part of Iraq where she would be safe.

4. The appellant's Article 8 claim arose in this way. On 5th January 2004 she was married to Karim Rashid Mohammed. He too was an Iraqi. He had been granted exceptional leave to remain in the United Kingdom for four years in February 2003, expiring on 18th February 2007. At the time of the marriage the appellant's application for asylum and leave to enter had not yet been determined by the Secretary of State. Her immigration status was, to that extent, uncertain. As I have indicated, the Secretary of State's decision refusing her claim was dated 21st January 2004, just over two weeks after the marriage.

5. Thus the appellant had been married for nearly four months when her case was heard by the adjudicator on 28th April 2004. By then she was pregnant, her first child was to be born on 29th November 2004. The adjudicator had little to say about the Article 8 claim. It is all to be found in paragraph 63 of his determination:

"I have of course to consider Article 8. The Appellant has since her arrival in the United Kingdom married her husband and established a private life in the United Kingdom. That marriage took place at a time that her immigration status was uncertain. Her husband has discretionary leave to remain until 2007. The Appellant could of course return to Iraq and make the appropriate application as the spouse of Mr Mohammed. Clearly her private life would be interfered with by her removal to Iraq but I find that such interference would be both lawful and proportionate bearing in mind the need to maintain effective immigration control. The Appellant is well able to resume private life in Iraq and I do not find her removal would put the United Kingdom in breach of its obligations under Article 8 of The Human Rights Convention."

6. Here are the relevant passages in the decision of the AIT:

"9. When the adjudicator decided the case, the appellant would have been about three months pregnant. Had she been removed then should would have had time to adjust to life in Iraq before the demands of her pregnancy could be expected to make reintegration impracticable."

7. Then paragraphs 13 to 16 inclusive:

"13. We do not see how the most diligent examination of the material before the Adjudicator followed by the most meticulous and thorough explanation in the determination could have led the Adjudicator to a conclusion other than the one that he reached.

"14. Unlike the Adjudicator we have the benefit of the decision of the Court of Appeal in Huang . It is clear to us that this is not the kind of truly exceptional case necessary before a person's removal from the United Kingdom could be found properly to be disproportionate to the proper purpose of enforcing immigrant control.

"15. Whilst the Adjudicator can, perhaps, be criticised for his superficial consideration of the case, there is no material error of law here. It may be that adjudicator had all of these points in mind and although he did not set out all the points before him his conclusion was based on the absence of detail in the appellant's case.

"16. We recognise that it is sometimes said (and contested by the Respondent) that it is too dangerous to travel from Iraq to Jordan to obtain entry clearance to the United Kingdom. We have not investigated this point because we do not see how the adjudicator could have concluded on the material before him that the appellant's husband could not go with her to Iraq or that separation was disproportionate, given that they married when the appellant's status was precarious."

8. The appellant's arguments are most usefully put in the skeleton argument prepared by counsel, Miss Hooper, in support of the application for permission to appeal. Three points are taken:

"1. When assessing the proportionality of separation of a married couple in circumstances where one party has exceptional leave to remain in the UK on whom does the burden lie to demonstrate that a requirement that they leave the UK is unreasonable?

"2. If the requirement that they leave the UK is unreasonable should the appellant have been required to leave the UK -

(i) to obtain entry clearance from Iraq; or

(ii) to live separately with her child from her husband?

"3. Did the [AIT] fail to take into account relevant policies when assessing proportionality?"

9. The first issue, as is there apparent, is expressed as a question of where the burden of proof lies. The argument for the appellant is that the burden of proof must lie on the Secretary of State because it is for him to establish a justification under Article 8(2) of the Human Rights Convention for an interference with a claimant's family life.

10. The argument for the respondent is that an issue whether an applicant can be expected to establish family life abroad rather than in the United Kingdom, is, according to case law of the European Court of Human Rights, generally treated as an enquiry under Article 8(1) in which the claimant has to make his or her case. Reference is made to Gül v Switzerland [1996] 22 EHRR 93 paragraphs 28 to 43, Clayton and Tomlinson on "the Law of Human Rights" paragraphs 6101 to 6103, and Abdulaziz v UK [1985] 7 EHRR 471.

11. Counsel for the appellant refers to Jersild v Denmark [1995] 19 EHRR 1. That was an Article 10 case. It is claimed to show that it is for the government to justify a decision under a provision such as Article 8(2). Mr Robb for the Secretary of State this morning very helpfully pointed to the passage upon which presumably reliance is intended to be placed. I will read paragraph 31:

"The Court will look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are relevant and sufficient and whether the means employed were proportionate to the legitimate aim pursued."

Then reference is made to the Observer and Guardian judgment, that is the well-known Spycatcher case. The court continues:

"In doing so the Court has to satisfy itself that the national authorities did apply standards which were in conformity with the principles embodied in Article 10."

12. In my judgment the situation in this case is very unsatisfactory. The adjudicator considered the Article 8 claim extremely superficially. That is not of itself necessarily a criticism. He was concerned with other issues and I would certainly accept that there was a paucity of evidence before him on Article 8. But the AIT decision really took the matter no further. I do not think that the case can be dealt with simply by a perception on the court's part as to the allocation of the burden of proof as between issues arising on Article 8(1) and issues arising on Article 8(2). The fact is that there has been no examination whatever of the substantive question whether the appellant's husband might reasonably go back to Iraq, enjoying as he does an exceptional leave to remain in the United Kingdom. It will not do for the Secretary of State simply to assert that the appellant must show that he could not do so because it is really an Article 8(1) question. It might be said there is an open question here as to whether there are substantial obstacles against his going back to Iraq and in that case there is an open question whether there is really an Article 8(1) or an Article 8(2) battleground.

13. The appellant has produced some material suggesting that the husband was given exceptional leave to remain because he had been tortured in Iraq before and feared reprisals again, even though the Secretary of State did not accept that he was a refugee as such. We have the Secretary of State's decision letter in the case, and (I mention it for completeness) a statement from the husband, though we are told that was not before the appellate authorities. It is true that an unsigned, undated statement coming from the husband was put before the AIT and no doubt that was very much less than satisfactory; but in my judgment the adjudicator and the AIT owed at least some duty of enquiry to consider what was the true issue arising under Article 8 here and to establish the relevant facts: in particular the facts relevant to the issue whether it would be proportionate to a legitimate aim to uphold the Secretary of State's refusal of entry to the appellant. That, of course, engaged the circumstances of her husband.

14. I recognise that the procedure of the AIT is predominantly adversarial, but the AIT must, I think, put themselves in a position to decide the real issues in the case. In my view it is part of the Secretary of State's public responsibility to assist in that task. It is unsatisfactory, in a context touching on issues such as refugee status and claims under the European Convention on Human Rights, that the relevant tribunal should go on the bare burden of proof.

15. I also recognise the force of the respondent's point that, in any event, this appellant married when her immigration status was insecure. She may very well have an uphill struggle on the merits if the matter is remitted. But I cannot say on the present information (and it is not, I think, submitted) that it is impossible that her appeal might succeed.

16. In all these circumstances I would allow the appeal essentially on what is the first ground. I have already expressed my views that it is not satisfactory that matters relating to the husband's situation have not been investigated.

17. As for ground 2, the issue of safe travel to Jordan and so forth has not been gone into because the AIT founded on the first issue. It may have to be investigated if it arises when the AIT reconsiders the case, were my Lords to agree, after it has been remitted to them.

18. The ground 3 argument is that the Secretary of State has not applied certain policies of his own. They are set out in counsel's skeleton argument supporting the application for permission. They are policies relating to family members. It is enough to say that, as I understand it, no application has been made under the policy. There is no decision letter relating to the policy. I am not aware that any point of this kind was taken before the adjudicator or the AIT. It seems to me very unpromising to suppose that it might be taken here.

19. However, for my part I would allow the appeal for the reasons I have given.

20. LORD JUSTICE SEDLEY: I agree with my Lord that the AIT, as a part (albeit, of course, an independent part) of the national authorities, as they are called in Strasbourg, has an obligation in a case like the present to ascertain, if it can, enough to make an informed decision on a critical question. But here, as it seems to me, it was the Home Office which was sitting on the information. They must have had on file all along the husband's witness statement, which we have now seen, dated 9th April 2001, on the basis of which it seems clear he was granted exceptional leave to remain for four years from 18th February 2003.

21. The Home Office letter of that date says that asylum has been refused for reasons that are given in an accompanying letter, but that "because of the particular circumstances of your case" the husband was being granted exceptional leave to enter. It is well-known that the grant of such leave, which is a purely discretionary matter, is a useful surrogate both for a grant of asylum and for a refusal of asylum which is likely to be followed by a strong appeal.

22. In any event, it is a logical initial premise that the Secretary of State does not grant exceptional leave to enter without good reason. Here the possible reasons are to be found, at first blush anyway, in the husband's original witness statement. If there were other reasons only the Home Secretary knew what they were. It is not acceptable, in such circumstances, for the Home Office simply to sit tight and defy the applicant to prove her case in relation to the risks faced by her husband. If it does not produce the relevant documents, the AIT should be at least prepared to draw the appropriate inference. This is especially so where the AIT has found the adjudicator's reason for denying the applicant's claim, namely that she should return to Iraq and apply from there for entry clearance, to be unsustainable and has substituted its own quite different reason, namely that there was no reason why the husband should not go back with her. The grant of exceptional leave to enter was at least some prima facie evidence that there was indeed good reason why he should not be expected, at the moment, to go back.

23. For these reasons, in addition to those given by my Lord, I agree with the disposal which he proposes.

24. LORD JUSTICE WARD: I agree with both judgments.

ORDER: appeal allowed; matter remitted to AIT for rehearing; appellant's assessment of publicly funded costs; respondent to pay appellant's costs to be assessed.