A (Afghanistan) v Secretary of State for the Home Department

The appellant appeals, with the leave of the AIT, against the decision of the AIT on second stage reconsideration dismissing her appeal against the refusal on 13 August 2007 to grant her entry clearance to join her husband, the sponsor, in this country. She had applied for entry clearance in November 2006 (three and a half years ago).

The sponsor, of Afghani nationality, was granted refugee status in the United Kingdom on 7 September 2005 with leave to remain for five years. Having been granted refugee status, he used his Refugee Travel Document to visit Pakistan the following year. The sponsor and the appellant married in Pakistan on 16 February 2006. The appellant is also an Afghani national presently living with family members in Peshawar in Pakistan. She is now 23 years of age. There is no point taken as to the genuineness of the marriage. The sponsor has visited Pakistan on at least three occasions to be with his wife. His wife gave birth to a daughter in 2007. At the time of the interview in August 2007 (the relevant time for our purposes) she was heavily pregnant. She has since had another child.

Paragraph 352A of the Immigration Rules HC 395 provides that the spouse of a refugee is eligible for the grant of leave to enter and remain in the United Kingdom (on the same terms as the refugee) but only if 'the marriage did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum.' Chapter 16 of the General Instructions for Entry Clearance Guidance confirms this and also permits entry if there are compelling, compassionate circumstances:

In 16.3 the Guidance states:

In the present case the AIT said as to this discretionary power:

As the Entry Clearance Guidance also points out, the entry clearance officers must also bear in mind the provisions of article 8 of the European Convention on Human Rights.

The history of Paragraph 352A of the Immigration Rules is helpfully set out by the AIT in paragraph 18:

Rule 281 lays down the requirements for leave to enter the UK of spouses of persons present and settled in the UK. A person with limited leave to remain is not regarded as "settled".

I turn to the procedural history of this appeal.

An immigration judge in March 2008 refused the appellant's appeal against the refusal to grant her entry clearance. A review having been sought of that decision, SIJs Moulden and McKee ordered re-consideration. They did so on two grounds, one of which was that the IJ had erred in law in finding that the sponsor could reasonably be expected to live in Pakistan on a long term basis. It follows that in this case it cannot be said, when considering article 8, that the sponsor should go to Pakistan to enjoy his family life.

The SIJs then proceeded to a second stage re-consideration and dismissed the appeal.

The appellant filed grounds of appeal. The ground which is relevant to the issues we have to decide is 2(i). That states:

Leave to appeal was granted by AIT in September 2008. The two SIJs who gave the decision wrote:

The appellant filed and served a skeleton argument on 31 December 2008, making many points and seeking to add new grounds. Importantly for our purposes are paragraphs 17-19:

The appeal was listed for hearing on 23/24 April. It was adjourned at the respondent's request because the respondent wanted further time to decide how to respond to the appeal. A letter sent to the appellant's solicitors by the Treasury Solicitors dated 15 April states:

The appeal was re-listed for a hearing on 23 July, not at the expiry of the four weeks referred to in the last paragraph of the letter. Notwithstanding numerous requests made by the appellant's solicitors, the respondent's lengthy skeleton argument was only served on the respondent at 4.00 pm on 20 July, in breach of the Part 52 Practice Direction ("PD"), paragraph 7.7(2). We asked why. We were told that the Treasury Solicitors had only been instructed as to how the appeal should be conducted at noon on Thursday 16 July, leaving only a few hours to serve the skeleton argument in accordance with the PD. Mr Beer, for the respondent, said that the reasons for the delay in serving the skeleton argument were the same reasons as had been presented to the court to obtain the adjournment in April.

Rule 52.5 provides:

No respondent's notice was served. If a respondent's notice is served then the skeleton argument must be served within 14 days thereafter.

Paragraph 7.3 of the PD provides:

I turn to the grounds of appeal.

The first ground of appeal (for which leave to amend was needed) was rightfully abandoned at the start of the hearing.

I turn therefore to the second ground. In the second ground the appellant takes issue with the manner in which the AIT dealt with the issue of article 8.

At the outset of the discussion I set out the five questions listed by Lord Bingham in paragraph 17 of his speech in Razgar, R (on the Application of) v. Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368.

It is not disputed that the same five questions must be asked when considering article 8 in the context of a refusal to grant entry clearance.

The AIT found that article 8 was not engaged. The AIT said:

A little later the AIT said:

The AIT also said:

As we have seen, the AIT recognised, in granting leave to appeal, that the conclusion was arguably wrong.

The respondent submits that the AIT was entitled to find that the refusal of entry clearance to the appellant did not engage article 8. It would not be an interference with the exercise of the sponsor's right to respect for his family life because family life within the meaning of Article 8 did not exist between the sponsor and the appellant.

Mr Beer, for the respondent, relies on the point that the appellant and sponsor were only seeking an improvement in their family life. He further relies on the following points:

In oral argument he noted that this is an entry case, not a removal case in which the family life has been formed in the UK.

These arguments reflect what the AIT said when dealing with the proportionality test. I shall refer to what the AIT said about proportionality shortly.

In my view, none of these five paragraphs assist on the question of whether there has been an interference with the sponsor's right to respect for his family life. Mr Beer was unable to point to any authority for the proposition that a lawful, genuine and subsisting marriage falls outside the ambit of family life, although we gave him an adjournment to see whether he could find any cases. It is not surprising that he was unable to do so.

The appellant relies on Abdulaziz and others v. UK (1985) 7 EHRR 471. The applicants in that case complained, "as persons lawfully settled in the UK, of being deprived (Mrs. Cabales), or threatened with deprivation (Mrs. Abdulaziz and Mrs. Balkandali), of the society of their spouses" in the UK (see para. 60). The UK Government argued that article 8 guaranteed respect solely for existing family life, whereas here the couples concerned had not, at the time when the request was made for permission for the men to enter or remain in the United Kingdom, established any such life with the legitimate expectation of the enjoyment of it in that country. The Government also argued that since there was no obstacle to the couples' living together in, respectively, Portugal, the Philippines or Turkey, they were in reality claiming a right to choose their country of residence, something that was not guaranteed by Article 8 (an argument that does not apply in this case). Both arguments were rejected by the Court when considering whether Article 8 applied. The Court said in paragraph 62:

This passage is, in my view, completely inconsistent with the decision of the AIT on the engagement of article 8 and the respondent's support thereof.

Mr Beer refers us to the next passage from the same paragraph.

Mr Beer submits that the reference to family life normally comprising cohabitation detracts from the earlier passage and supports his argument that, in the absence of cohabitation, the AIT was entitled to find that article 8 was not engaged. That cannot be right. This passage is merely adding another reason why there was family life on the facts of the case. The passage in no way undermines the first quoted passage. It is inconceivable that a state party to the Convention could prevent a newly and genuinely wed husband and wife from cohabiting and then successfully claim that, because of the absence of cohabitation, there is no family life and therefore article 8 is not engaged.

Of course, the absence of cohabitation may well be a factor to be taken into when deciding cases involving family relationships other than the relationship of genuine and subsisting marriage. But it is trite law that family life may be found to exist in the absence of cohabitation. See for example the important decision in Singh v Entry Clearance Officer, Delhi [2004] EWCA Civ 1075; [2004] INLR 515. In that case the Court of Appeal upheld a finding that an adopted child who had never lived with his adoptive parents in the United Kingdom was a member of the adoptive parents' family for the purposes of article 8. We were taken to a number of paragraphs in Singh, e.g. 19, 21, 40, 58, 59, 73, 74 (where Munby J said that the absence of cohabitation can never be determinative of the issue as to whether there is family life). In none of the passages is there any suggestion that family life does not exist between a husband and wife in a genuine subsisting marriage.

Counsel provided us with a copy of R (on the application of Fawad Ahmadi and another) v. the Secretary of State for the Home Department [2005] EWCA Civ 1721. Moses LJ said:

That passage provides further support for the conclusion that family life exists between a husband and wife in a genuine subsisting marriage and ties in with the reference to article 12 in paragraph 62 of Abdulaziz. It is also of importance that the appellant was heavily pregnant at the time of the ECO's decision.

Mr Beer took us to Navaratnam Kugathas v. the Secretary of State for the Home Department [2003] EWCA Civ 31. He referred to paragraph 14 in which Sedley LJ quoted a passage in a Commission decision to the effect that "the protection of family life under Article 8 involves cohabiting dependents, such as parents and their dependent minor children." Sedley LJ described this as a proper approach. There is no suggestion that he was making absence of cohabitation a determining factor, at any rate in the cases of husband and wife. We were then referred to paragraphs 16-19, 24, and 31. The appellant was a single man who had lived in the UK for three years. Before then he had lived in Germany where his mother and siblings lived and with whom he had had only limited contact, namely a single three week visit and periodic phone calls. He was to be deported to Sri Lanka. It was held that on the evidence no family life had, for the purposes of article 8, been enjoyed by the appellant. Sedley LJ examined a number of cases in which such phrases as "committed relationship" and "real and effective family ties" were used. He himself used the expression real, or committed or effective support. Nothing in that case, the facts of which are a long way away from this case, would support a conclusion that family life does not exist between a husband and wife in a genuine subsisting marriage.

In my view there can be no doubt that, on the facts of this case, family life exists between the appellant and the sponsor and the AIT was wrong to find otherwise.

I turn to Lord Bingham's second question. As the appellant rightly submits, one starts with what Sedley LJ said in AG(Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801 [28], "the threshold of engagement (the minimum level) is not a specifically high one."

The fifth paragraph of Mr Beer's arguments (paragraph 30 above) is relevant to Lord Bingham's second question,

There can, in my view, be no doubt that the interference with family life which will result from not allowing a husband and his heavily pregnant wife in a genuine and subsisting marriage to cohabit, has consequences of such gravity as potentially to engage the operation of article 8, bearing in mind what Sedley LJ said in AG.

It follows that the AIT was required to consider Lord Bingham's third, fourth and fifth questions. Notwithstanding that the AIT decided that article 8 was not engaged, it devoted considerable space to the issue set out in Lord Bingham's fifth question: "Is such interference proportionate to the legitimate public end sought to be achieved?" The AIT said:

The AIT analysed over about a page and a half the issue of the public interest. The AIT said:

If the AIT had no way of knowing what the public interest was and concluded that it was unable to identify a public interest in preventing refugees like the sponsor from being joined by genuine spouses whom they can maintain and accommodate adequately, then it would follow that the interference imposed by Regulation 352A is not "proportionate to the legitimate public end sought to be engaged".

The respondent now seeks, without the benefit of a respondent's notice and after very considerable delay, to present a substantial argument, not put before the AIT, that there is a public interest in drawing a distinction between refugees and other persons granted leave to remain for a limited period. Mr Beer seeks to justify the lack of a notice, submitting that it was only new grounds of appeal raised in the original skeleton argument which required an analysis of the public interest and that leave to add the new grounds had not been obtained. Whilst accepting that the position could have been made clearer by the appellant, I do not agree with Mr Beer. The decision of the AIT, ground 2 of the original grounds, the AIT's reasons for giving permission to appeal and the paragraphs from the skeleton argument which I have quoted should have alerted the respondent to the need to file a respondent's notice, if we were to proceed to uphold the decision on an analysis of public interest different from that presented to and conducted by the AIT.

Mr Beer accepts that if we are against him on the issue of the engagement of Article 8, then the choice which this court has to make is whether to remit the case or allow the appeal against the ECO's decision. He submits that what the AIT said about the public interest should not be taken as their concluded view given their conclusions on the engagement of Article 8. On the other hand the AIT devoted a considerable amount of space to the issue and, as a specialist Tribunal, were quite unable to identify the public interest.

In the light of the procedural history of the case I take the view that the respondent should now be foreclosed in this case (and I stress those words) from re-opening the issue and that the proper course is to allow this appeal against the ECO's decision. If we were to allow the appeal, our decision would be of no authority, persuasive or otherwise, if and when this issue falls to be decided in the future.

I accept that the public interest arguments now submitted may lead to a Tribunal or Court in the future agreeing that in a case like the present it would not be a violation of article 8 to prevent the spouse from joining the refugee. However, it would be desirable for that issue to be considered first by the AIT, given the specialist knowledge of its members. It would not be desirable for the issues to be considered in this court for the first time.

For these reasons I would allow the appellant's appeal against the refusal to grant entry clearance to her.

I agree.

I also agree that the appeal should be allowed. There was a genuine and subsisting marriage such as to engage article 8 of the Convention (Abdulaziz and Berrehab v Netherlands [1988] ECHR 14, "lawful and genuine marriage"). While there may be argument in other cases as to whether the marriage of parties who have been through a ceremony of marriage can be regarded as genuine and subsisting, this marriage on the present facts undoubtedly was.

There remains of course the possibility of justification under article 8(2) of a decision adverse to an applicant. Mr Beer submitted that the case should be remitted to allow the AIT to consider article 8(2). I do not agree. The time for the Secretary of State for the Home Department ("SSHD") to do that was at the earlier hearing and, in the context of this case and the delays involved, I agree with Hooper LJ that the SSHD should not be given another opportunity.

I am far from saying that, on a consideration of article 8 as a whole, a spouse of a refugee, whose marriage did not take place until after the person granted asylum left the country of his former habitual residence in order to seek asylum, can expect a favourable decision under article 8. It will be for the AIT to consider each case on its merits, applying the usual principles.

I need to say more about the delay which has occurred in this case. The respondent, the Entry Clearance Officer in Islamabad, clearly cannot be held responsible.

The appellant, resident in Pakistan, seeks, with her child aged under 2, to join her husband, and father of the child, in the United Kingdom. He has been granted refugee status in the United Kingdom. He has leave to remain for 5 years from September 2005 with good prospects of that leave becoming indefinite.

Entry clearance was sought by the appellant in November 2006 and was refused and appealed. The decision of the AIT was notified on 15 August 2008. Grounds of appeal against the decision of the AIT were submitted on 24 August 2008 and plainly alleged, among other things, that the Tribunal had erred in law in finding that article 8 of the Convention did not apply. Permission to appeal was granted and a skeleton argument, in which the engagement of article 8 was again plainly raised, submitted on 29 December 2008. (Paragraph 14(iii) and "Ground Two: article 8 engaged or not").

On 18 December 2008, the Treasury Solicitor ("TS") wrote to the court stating that the SSHD was not yet able to tell the court whether it was intended to serve a respondent's notice: "The SSHD is not aware that this hearing has been listed yet, and the SSHD hopes that any delay does not prejudice proceedings. In any event, the SSHD will comply with these requirements at the earliest opportunity and [she] trusts, without any prejudice to the appeal proceedings". On 25 March 2009, apologies were made by the TS "for the continued delay in updating the court and the appellant's representatives in this matter".The appeal was listed for hearing on 22 April and a bundle of authorities lodged. On 15 April 2009, the TS wrote to the appellant's solicitors apologising for the continuing delay. Instructions were still awaited. It was noted that "the SSHD's skeleton argument is due today". The letter continued:

On reference to me, as presider in the constitution due to hear the case on 22 April, I ordered on 20 April:

The hearing was listed for 23 July 2009, that is 3 months later. The appellant's solicitors wrote to the TS on 19 June and 1 July requesting a skeleton argument, as a matter of urgency. The request was repeated on 7 July 2009, the solicitors referring to the "very lengthy delay by you". It was again repeated, in writing, on 13 July, that is 10 days before the date fixed for the hearing.

Only then is there evidence of effective action. The TS wrote to the court on 16 July requesting an extension of time for serving the skeleton argument until Monday 20 July.

The application reached me on 17 July. I granted it, though short of striking out the respondent's case or adjourning the matter again, I could follow no other course. The TS had not been instructed by the SSHD until 11.56 am on 16 July. I readily accept that when eventually they received instructions, the TS and counsel acted as swiftly as they possibly could. A 23 page skeleton argument was submitted by counsel in the afternoon of Monday, 20 July.

I accept that re-amendment of the grounds of appeal, if it was to be sought, could have been sought earlier. However, there is substance in the submission by the appellant's solicitors that the long delay and absence of skeleton argument suggested to them that there might not be a contested hearing and that additional expenditure should be avoided. I accept that much of the respondent's skeleton argument deals with points made by the appellant which at the hearing were not pursued. It has not, however, been suggested that the failure to deal earlier with the skeleton argument submitted in December 2008 was because of difficulty in dealing with those points.

The bland submission for the SSHD at the hearing was that the court was concerned with a delay of 4 days, that is from 16 July to 20 July, in submitting a skeleton argument. At the conclusion of the hearing, the SSHD was given an opportunity to make submissions in writing about the delays.

In written submissions now made it is repeated:

I have read the paragraph in the skeleton argument dealing with this issue, paragraph 6(iii). It is a very long paragraph but I have found nothing in it which begins to justify the need for 11 months from the grant of permission by the AIT to obtain the information.

I am concerned by the attitude of the Department not only to the particular case but to the court that is revealed by the events described. Notwithstanding the passage of 8 months from the grant of permission and over 3 months from the appellant's skeleton argument, application for an adjournment was made in April only days before the hearing date, thereby causing a loss of court time. The application was for "a short adjournment of 4 weeks" to finalise the position. In the event, the adjournment was for 3 months but a skeleton was still not filed in time, despite the appellant's proper requests. The request for an adjournment of 4 weeks demonstrates either a lack of diligence subsequently or a gross underestimate of the requirement.

No satisfactory explanation has been given as to why it took so long to provide instructions to counsel to draft the relevant paragraph. Even if the need for considerable time to enquire is assumed, the failure, with knowledge of the date fixed for the hearing, to instruct counsel in reasonable time was deplorable. The requirement for a respondent's skeleton argument 7 days before the hearing, is a modest one. The period of 7 days should not be abridged, particularly in the case of experienced litigants dealing with what they consider to be a complex matter.

The delay has had an obvious impact on the lives of the appellant and sponsor whose appeal has been held by this court to be well founded. Moreover, the attitude to the court revealed by the above sequence of events is not acceptable one. Drastic action by the court against the SSHD is not readily taken because, if it is to serve the public interest, the court usually needs the assistance of the SSHD in immigration cases. The SSHD must not take advantage of that. If her Department does, more drastic action will need to be considered.