A v Secretary of State for the Home Department

LORD JUSTICE SCOTT BAKER: This appeal is brought with the permission of Sedley LJ, against a decision of the Immigration Appeal Tribunal, as it then was, notified on 25 May 2004. The background facts are briefly as follows. The appellant is a citizen of Iraq. He is aged 31, nearly 32. He is a Kurd and comes from northern Iraq. He arrived clandestinely in this country in October 1999, having come via Turkey. He claimed asylum, fearing persecution by the Patriotic Union of Kurdistan (“PUK”). He claims he was tortured and ill-treated by the PUK and the same could happen if he were returned.

On 26 August 2001, the Secretary of State rejected his asylum and Article 3 human rights claims. This was under paragraph 336 of HC395. The decision included a decision to give directions for removal from the United Kingdom, albeit no actual removal directions have yet been given. He appealed to an adjudicator who heard his appeal in Nottingham in August 2003, promulgating his decision on 27 August 2003. In his refusal letter the Secretary of State doubted the credibility of the appellant and considered he was more interested in securing entry to the United Kingdom than in gaining a place of sanctuary.

The adjudicator took a similar view. He rejected the appellant’s account of what he said had happened to him in Iraq. He described his account as thoroughly implausible and the asylum and Article 3 appeals were rejected. He added in paragraph 13 of his determination, as something of a throwaway remark:

“Even if I am wrong in rejecting the Appellant’s account given what has taken place in Iraq I find that the appellant can be returned to either Baghdad or Basra. Considerable efforts have been undertaken which enable the Appellant to return to his own country”.

It is unclear what those particular efforts were.

No complaint is made about the adjudicator’s rejection of the appellant’s asylum and Article 3 claims, but the adjudicator went on to consider Article 8. As will be appreciated, some time had passed since the appellant’s arrival in the United Kingdom. In May 2000 he met a lady in a nightclub in Newcastle, whom he married on 20 June 2002. She gave evidence before the adjudicator. She had a son, born on 31 December 1987 and so 14½ when they married and 16½ when the case came before the adjudicator. His name is Chad. The appellant’s wife was also an approved foster carer, providing respite care three days a week between 9am and 5pm. The appellant too was given approval for fostering. The adjudicator said that the appellant and his wife were a well-established couple and if the appellant was forced to leave England it would devastate his wife’s life, not to mention Chad’s. His wife would be in an impossible position if forced to chose between the appellant on the one hand, and her son and foster child on the other. He was satisfied it was a genuine marriage. He said he has established that he falls within Article 8, and it would be disproportionate to remove him from the United Kingdom.

The adjudicator never referred to the balancing considerations in Article 8(2), the importance of maintaining immigration control and so forth; and allowed the appeal on Article 8 grounds. The Secretary of State appealed. His grounds were, in summary, as follows. The adjudicator failed to give adequate reasons for concluding that it would be disproportionate for [the appellant] to return to Iraq and apply for entry clearance. He failed to pay due attention to the issue of whether there are insurmountable obstacles in his case, preventing the appellant’s wife from returning to Iraq with him. He failed to state what account he had taken of the fact that the marriage was entered into at a time when both parties knew the right of residence in the United Kingdom of the appellant was precarious. He failed to give due consideration to whether the family he found to be in existence was “long established”, and he should have given more careful scrutiny to the issue raised by the presenting officer as to whether the marriage was genuine.”

It is not disputed that the adjudicator made an error of law in failing to go through the Article 8 exercise properly. The appeal was heard by the Immigration Appeal Tribunal in May 2004, with Mr PR Lane, Vice President, presiding. He said that the adjudicator’s analysis was thoroughly unsatisfactory in its analysis of the question as to whether it would be a disproportionate interference, and thus a violation of Article 8, to require the appellant to leave the United Kingdom. He pointed out that the adjudicator had failed to consider the fact that he could make an application for entry clearance from abroad to join his wife in the United Kingdom. Although entry clearance facilities were unavailable in Iraq itself, the British Government was able to process entry clearance applications from Iraqis via the British Embassy in Amman, in Jordan. It was not suggested that the appellant, should he not wish to do so, would have to live in Jordan for the entirety of the period when his application was under consideration, provided he was available in Amman to be interviewed by the entry clearance officer when his application had reached that stage. The tribunal found that it would be possible for the appellant to live in Iraq. There was no evidence to show that removal of the appellant for the purpose of applying for entry clearance would have a significantly harmful effect on his wife, child or foster child. Any application from outside the United Kingdom would need to be considered by the entry clearance officer, bearing in mind ECHR requirements as well as those of the immigration rules.

Sedley LJ, giving permission to appeal to this court, said that the Immigration Appeal Tribunal had to interfere with the adjudicator’s decision. There is no dispute about that, but he said that the IAT seemed to have gone impermissibly far in the opposite direction. He said:

“To the extent that there needs to be a decision as to whether it is proportionate to part [the appellant] from his present family in favour of an application for entry clearance which may fail, I accept that the IAT’s decision arguably deficient. There is no other viable ground of appeal”.

He questioned why it proved so difficult at two levels to get a straightforward answer to a commonplace question, and pointed out that proportionality requires a methodical approach, but that is all. He invited the Home Office to consider whether the appeal ought to be remitted by consent. Unfortunately, the Home Office has not taken up that invitation and the appeal has been vigorously contested by Mr Weisselberg on its behalf.

The Immigration Appeal Tribunal is entirely silent as to how the appellant is to get from the United Kingdom to Iraq, and from wherever he is deposited in Iraq – presumably Baghdad – to Amman in Jordan. Mr Weisselberg’s primary submission is that the Immigration Appeal Tribunal had evidence before it that there were entry clearance facilities available in Jordan for processing applications by Iraqi nationals, and if his case was that it was not possible for him to avail himself of those facilities, it was up to the appellant to call evidence to establish this. I cannot accept this submission. In the first place, the position appears to have been that at least until July 2005, the Home Office were not enforcing returns to Iraq – see GH v Secretary of State for the Home Department [2005] EWCA Civ 1182. So the appellant would have to make his own way to Iraq. Secondly, the IAT’s picking up of the adjudicator’s finding that the appellant could be returned to Baghdad or Basra has to be seen in the context that this was an unreasoned finding of the adjudicator based on the premise that he was wrong in rejecting the appellant’s account of what had happened to him in northern Iraq. Third, the question of what documents the appellant required to travel from Iraq to Jordan, and how he was to obtain them, was not touched on by the tribunal. Fourth, the tribunal said nothing about the mode and route of travel, and its safety, between Iraq and Amman. That is something, so it seems to me, that may change from one week to the next. These are, in my judgment, all matters that would be more readily within the knowledge of the Home Office than the appellant.

But it is also necessary to look at how matters had developed. When the case was before the adjudicator, the question of applying for entry clearance from outside the United Kingdom does not appear to have been raised or, if it was, the adjudicator never dealt with it. The grounds of appeal to the tribunal suggest that the adjudicator should have given reasons why the appellant could not return to Iraq and apply for entry clearance. There is no suggestion there of travelling from Iraq to Jordan. The natural reading of the grounds is that entry clearance could have been sought from Iraq. Neither counsel was present at the tribunal hearing, and it is impossible to be sure when travelling to Amman to apply for entry clearance was first raised. Nor does documentary evidence appear to have been before the tribunal; and there seems to me to be force in Mr Jones’s submission that the topic was raised for the first time in the Secretary of State’s submissions to the tribunal. The Immigration Appeal Tribunal made no mention of how the appellant was to avail himself of the facilities to apply for entry clearance, and I am left with the clear picture that the issue was not considered by the tribunal. It seems to me that an integral part of the appropriate proportionality analysis by the tribunal was missing. In my judgment the tribunal’s failure was an error of law.

Mr Weisselberg’s next argument is that if there was an error of law on the part of the tribunal, it was not a material error of law. The tribunal, he submits, would inevitably have concluded that it was viable for the appellant to apply for entry clearance in Amman. We were referred to Huang v Secretary of State for the Home Department [2006] QB 1, which established that there is a very high threshold for Article 8 claims in the immigration asylum context. Only a case that is truly exceptional on its facts requires departure form the ordinary rule that the maintenance of immigration control outweighs Article 8(1) rights.

Is the appellant’s case so exceptional that he can bring his Article 8 claim forward, without going through the ordinary hoop of applying for entry clearance under the immigration rules from outside the United Kingdom? The answer, Mr Weisselberg submits, is “no”. It may very well be, at the end of the day, that the appellant will fail to cross the high threshold outlined by this court in Huang, but that, in my judgment, is not the point. Whilst Article 8(1) was engaged in this case, and the appellant’s family life claim was far from a strong one, the tribunal never properly applied the proportionality exercise required by Article 8(2) looking at the facts of the particular case and, in particular, how the appellant was to apply for entry clearance. At one time in his argument Mr Weisselberg seemed to be submitting that the Immigration Appeal Tribunal was not, in the absence of removal directions, required to consider the accessibility of the relevant British Consul, but later his position shifted to arguing that any error of law on part of the tribunal was not material. He relied on HC (Availability of Entry Clearance Facilities) Iraq [2004] UKIAT 00154, decided just weeks after the present case. He submits that the facts of that case are remarkably similar to those of the present case, and that the tribunal there held that is was a viable option for the claimant to return to Iraq, travel to Jordan, and apply for entry clearance as a spouse. This, however, was not a country guidance case.

Then we were referred to KJ (Entry Clearance – Proportionality) Iraq [2005] UKIAT 00066, which was a country guidance case, albeit decided in March 2005. The court accepted the argument. It would be disproportionate to expect a non-Arabic speaking Kurd to return to Baghdad and then get himself somewhere where he could safely stay until he was able to arrange travel to Amman. It was noted that the funds he would need to have to travel to and from Amman, and that he would have to take, at least in part, with him, assuming he could find such funds, would make him of adverse interest during his travel.

The third case is SA (Entry clearance application in Jordan – proportionality) Iraq [2006] UKIAT 00011. That was a determination notified on 9 February 2006. That case reversed KJ, concluding:

“In the light of evidence now available the Tribunal is satisfied that generally it is not disproportionate to a legitimate aim within Article 8(2) to require an Iraqi national to return to Iraq and travel to Jordan to make an application for entry clearance. There is significant further evidence to show that the guidance in KJ … no longer applies”.

Mr Jones submits that the situation is ever changing. In May 2006 the Home Office’s own Science and Research Group Country of Origin Report on Iraq raised substantial doubts as to the continued reliability of the tribunal’s conclusions in SA. Further he submits SA did not consider the UNHCR guidance. He submits, with some force in my judgment, that the definitive answer is only as good as the evidence on the day and that neither the Secretary of State nor the tribunal engaged with the question in this case.

Mr Weisselberg submits that removal directions will be set whether or not this case is remitted for reconsideration by the tribunal. He submits that if the case is not remitted, removal directions can, in the event that they are unlawful, be challenged by judicial review. In my judgment, however, the appropriate course is for the case to be remitted for a fresh hearing before the Asylum and Immigration Tribunal, as it now is. I do not think the appellant was given a proper and fair hearing of the issues in May 2004. The matter should be considered afresh, as Sedley LJ suggested but the Home Office rejected this argument. The AIT can look at the situation as it now is. There is some suggestion that the appropriate route for entry clearance applications is to to the town of Trebil and that applicants should travel to Jordan via Syria. As to the appellant’s family situation, that too may have changed, for two further years have passed. For one thing, Chad is now an adult. There is, however, no up-to-date information. I am far from saying that the appellant’s claim under Article 8 is going to succeed when the matter is considered afresh, because he has to cross a very high threshold.

Nevertheless, in my judgment he is entitled to have the matter properly considered and I would therefore allow the appeal.

LADY JUSTICE HALLETT: I agree.

THE PRESIDENT OF THE QUEEN’S BENCH DIVISION: I also agree. I simply add that I suspect that when it is analysed, it would be appreciated that this appeal raises no point of legal principle and that in truth the result is fact specific.