J U D G M E N T

1. MR JUSTICE MOSES: In this application, brought with the permission of the single judge, the claimant, Surinder Singh, seeks to quash the decision of the Immigration Appeal Tribunal given on 5th May 2002. The tribunal refused leave to appeal from an Adjudicator, whose decision was dated 26th March 2002. The issue in this application is whether he erred in concluding that it was proportionate to refuse the claim under article 8 of the convention.

The Facts

2. The claimant is a Sikh, an Indian citizen who arrived in the United Kingdom on 9th June 1996. He applied for asylum. This was refused, after a number of appeals, on 8th December 2000. On 6th April 2001 he married his wife, Manjeet Kaur Purewal. She is a Malaysian national. She had three children by a former husband, who unfortunately had died. The girls are now aged 20 and 18, and the boy is aged 8. The claimant and his wife lived together with those three children. They had met through a friend and had known each other for about a year before they married. In evidence, which was not disputed, the claimant's wife said that she married him because she loved him, and wanted a stable family for the three children. She had been born in Malaysia and had arrived in the United Kingdom when she was 14. She had never been to India, although she had been back to Malaysia for holidays. The two girls were born on 29th October 1982 and 16th May 1984, and Talwinder, her son, was born on 28th October 1994. All of them were born in the United Kingdom. Jaswinder Kaur, the eldest daughter, had completed a course at Sutton College after leaving school. Jasprit had attended college on leaving school and is now completing a course in accountancy. Neither girls understand Punjabi, and could not be expected to leave home while they were unmarried. The boy, Talwinder, a good swimmer with many friends, goes to a local school. He is in his second year. He, of course, cannot speak Punjabi. Most of the claimant's wife's family live in the United Kingdom. She has had no contact, and no one could reasonably expect her to have contact, with anybody in India, and she does not wish to go there.

3. The grounds of the appeal emphasised those bald facts. The appellant's wife is now 45. She would have to give up her employment and close family ties and friends in the United Kingdom were she to go to India, a country with which she has no ties. The children would have to forfeit all that they have built up and learned and expect from life in the United Kingdom if, in order to keep the family together, they had to go to the Punjab. They have no home or means of support there, or indeed in any other part of India. Moreover, were the claimant to return to India, his stepson, Talwinder, would be deprived of the important relationship, which has now become close, with the only person who stands in position of father.

4. The Adjudicator, despite those considerations, came to the conclusion that interference with family life, which would undoubtedly take place, would be proportionate. He referred to the decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte Mahmood [2001] 1 WLR at page 840, to which I will turn later. He concluded at paragraph 35:

"The couple met in April 2000 that is to say, whilst the Appellant was waiting for the rehearing of his case. The Appellant's renewed appeal was refused on 18 December 2000 and the couple married on 6 April 2001. Mrs Purewal was aware of the precarious nature of her husband's right of residence but seems to have taken a fatalistic view of it. She said in evidence that she would cross that bridge when she came to it. I am satisfied that at the time of the marriage she was aware of her husband's position. She must have known when she married the Appellant that there was a possibility, at least, that he would be returned to India. The marriage although undoubtedly subsisting has been of short duration of about a year and the entire relationship has existed for no more than two years. This is not a case in which a long established couple find themselves faced with expulsion of one of them. Both knew from the outset that this was a distinct possibility. It would of course be open to the Appellant to apply for leave to enter the United Kingdom once he had returned to India."

He concluded that there would be no disproportionate breach of rights under article 8 of the convention.

5. The Immigration Appeal Tribunal in refusing leave referred to the most salient factor, as they considered it to be, namely that the marriage was undertaken in the full knowledge of the precariousness of the applicant's immigration status, and had only been in existence for a relatively short time.

6. Article 8 of the European Convention on Human Rights provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

7. In R v Secretary of State for the Home Department ex parte Mahmood , the Court of Appeal considered the application of article 8 in the context of circumstances such as arise in this case, although the facts concerned arose before the coming in to operation of the 1998 Act. Lord Phillips MR at paragraph 55 drew from the approach of the Commission and the European Court of Human Rights the following propositions:

"(1) A state has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations.

(2) Article 8 does not impose on a state any general obligation to respect the choice of residence of a married couple.

(3) Removal or exclusion of one family member from a state where other members of the family are lawfully resident will not necessarily infringe article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family.

(4) Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a state if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled.

(5) Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates article 8.

(6) Whether interference with family rights is justified in the interests of controlling immigration will depend on (i) the facts of the particular case and (ii) the circumstances prevailing in the state whose action is impugned."

8. In Poku v United Kingdom [1996] 22 EHRR, the Commission considered the admissibility of a claim and found it to be manifestly unfounded. It recorded the jurisprudence of the court in saying:

"The Court has held that Article 8 does not impose a general obligation on States to respect the choice of residence of a married couple or to accept the non-national spouse for settlement in that country (Abdulaziz, Cabales and Balkandali judgment (1985) 7 EHRR 471, paragraph 68)."

9. The Commission continued by acknowledging the interruption to the relationship between one of the applicants and her daughter, and the other applicant and his son: see page 98. But in commenting upon that disruption, it said of the male applicant:

"The Commission recalls however that Samuel Adjei and Ama Poku married in August 1994 when she had already been subject to immigration proceedings and a deportation order had been served. He must accordingly be taken to have been aware of her precarious immigration status and the probable consequential effects on his other family relationships by the enforcement of the deportation order. While his daughter Sarah may also claim that her family life is affected and cannot be said to be in the same position as her father, the Commission considers that her situation also flows from the choice exercised by her father rather [than] from any direct interference by the State with her family relationships."

10. The essential argument in the instant case advanced on behalf of the claimant by Ms Sheehan is threefold. Firstly, that the Adjudicator erred in failing to find that the obstacles against the claimant's wife and step-children removing to India were insurmountable. Secondly, it is contended he focused erroneously on the fact that they had married when they knew of the claimant's precarious immigration status to an unjustified extent and to the exclusion of consideration of the difficulties the family would have in following him to India. Thirdly, it is contended that the Adjudicator failed to consider the difficulties that the claimant would have in obtaining entry clearance.

11. In my judgment, it was open to the Adjudicator to find that the obstacles against the family moving to India were not insurmountable. The older children were, of course, established here in a way that would make it extremely difficult for them as a matter of reality to move, but there was nothing, such as any prohibition by the government of India, or any other physical reason, why the girls could not follow their mother to India, however unlikely it is that they would want to, and however undesirable it would be for them to do so having regard to their future. Their situation was no worse than the sad situation of many others, or indeed in the case of Mahmood or in Poku where members of the family would equally have been parted by the expulsion of one of their number.

12. In my view, Ms Sheehan was correct in her frank submissions that the paradigm case of an insurmountable obstacle would be cases where it would not be possible for one member of the family to be allowed to enter the country to which the expelled member was returning, either by reason of some regulation or stance taken by the authorities of that country, or possibly for some physical reason.

13. The second argument, in my view, is also not to be sustained. I take the view that it was not unjustifiable for the Adjudicator or the Immigration Appeal Tribunal on the application for leave to focus on one particular factor. Of course, a number of factors will be relevant in every case, but the weight to be attached to those factors will vary from case to case, and inevitably the decision-maker will highlight one as founding his conclusion. It does not follow by any means that in so doing he would have failed to consider the countervailing factors. It is fanciful to think that the Adjudicator did so in this case, faced as he was with the sad and striking facts highlighted by Ms Sheehan. Nor, finally, was it incumbent upon him to consider the likelihood of any grant of entry clearance. There will undoubtedly be difficulties. By rule 281 of the Immigration Rules HC395, the claimant on return to India, if he applies to be admitted for settlement, will have to demonstrate that there will be adequate accommodation for the parties and dependants without recourse to public funds, and accommodation which they own or occupy exclusively (see 281.4), and that the parties will be able to maintain themselves and any dependants adequately without recourse to public funds (see 281.5).

14. The claimant's wife has made it clear in the grounds to the Immigration Appeal Tribunal and in her evidence as to the difficulties she will suffer should the claimant be compelled to leave and go to India. She will not be able to support the family on the £120 she earns a week, and will have to claim housing benefit and family credit.

15. The point, as it seems to me, is disposed of in the decision of the Master of the Rolls in Mahmood , to which I have already referred. At paragraph 65 he recorded that exactly the same argument was advanced, and he concluded:

"In these circumstances I do not consider that the possibility that his application may not succeed is any reason for excusing him from the requirement to make an application outside the country if he wishes permission to settle here with his wife and family."

I reject Ms Sheehan's third argument for the same reasons.

16. The harsh reality in this case is that any interference with article 8 arose from the couple's own choice to marry despite the precarious immigration status of the claimant. It did not result from any direct interference by the state, and the Adjudicator and the Immigration Appeal Tribunal were entitled to focus on that important passage in Poku at page 98. That was a proper legal approach which the Secretary of State and the Adjudicator were entitled to adopt.

17. The application is dismissed.

18. MS SHEEHAN: My Lord, I am legally aided. I wonder if I could have legal aid assessment.

19. MR JUSTICE MOSES: Yes, you may.

20. MS SHEEHAN: I am grateful, my Lord.

21. MR JUSTICE MOSES: Thank you both very much.