Kussin, R (on the application of) v Secretary of State for the Home Department

MR JUSTICE BLAKE: This is an application for judicial review of decisions taken by the Secretary of State for the Home Department rejecting a number of representations made on behalf of the present claimant, all to the effect that he should be allowed to remain in this country exceptionally on the basis of his continuing relationship with a partner who is a British woman born and settled here.

The relevant chronology is as follows. At some point in September 2000 the claimant, who is a Turkish national, arrived clandestinely in the United Kingdom and subsequently made an application for asylum. That was rejected on 12 June 2003 and removal decisions or notices treating him as an illegal entrant were served which were to count as an enforcement decision for the purpose of the Secretary of State's policies. There was an appeal lodged against that decision; it was dismissed on 21 October 2003. Further appeal rights were exhausted.

The adjudicator was then only concerned with the protection as a refugee or under Article 3 of the European Convention on Human Rights. He accepted aspects of the claimant's account - namely that he was a Turkish national who had come to adverse police attention because, as a seaman, he had helped some supporters of Kurdish politics leave the country - but nevertheless concluded that he was of no interest to the authorities if returned to Turkey and on that basis dismissed the claim.

There is evidence before the court that was placed before the Secretary of State that by that time the claimant, on arriving in this country, had formed a friendship and a relationship with his present partner. There are various descriptions of how that relationship began from the partner herself, the friends and family. It is the case that the partner Miss Julie Taylor has substantial family and friends of her own in this country, including an adult son. The family and friends testify to a relationship which first began, it seems, in March 2001. There is some evidence of the claimant sharing an address with Miss Taylor in the autumn of 2001 and some evidence that he was permitted to drive her car from July 2001. The parties say that they decided to get engaged in July 2002. It is however the case that the claimant is married to a woman in Turkey by whom he has at least one child - a young man called Orik - who, as it happens, now lives in the United Kingdom and has a child of his own. So the claimant has an adult child here and a grandchild.

Despite the rejection of his asylum application, the claimant through a number of advisers has made a number of different applications from 2003 seeking to remain here under one limb or another of immigration policy: first, under the Family Indefinite Leave Concession. That was rejected in February 2005. Further representations were made about that and they were rejected. There were challenges by judicial review, but matters were then reconsidered. Other representations have been rejected at regular intervals thereafter. Since 2006 his position has been very precarious. He was arrested when working and enforcement has been very much imminent since then, subject to challenges based upon this relationship.

The matter proceeded to the extent that permission was granted in this case by Mr Justice Davis in April 2008. Pursuant to the grant of permission, the matter was reconsidered by the Secretary of State in November 2008. Although there have been subsequent decision letters responding to evidence, by October the essential approach to this case had been made out by the Secretary of State.

The claim is advanced today on two essential bases. It is submitted that if this matter were to be accepted as a fresh claim, even if it continued to be refused by the Secretary of State as it consistently has been, there is a reasonable prospect of success that this claimant would be able to persuade an immigration judge to allow an appeal against that refusal, first, on the basis that the decisions were not in accordance with the law insofar as the claimant had a legitimate expectation of favourable treatment under the Unmarried Partners Policy that was in existence for material parts of this narrative of adverse decisions. Secondly, even if the claimant did not succeed under that policy itself, because there is family life enjoyed in this country of such a nature and quality it would be a disproportionate interference with it to require him to leave. I propose to address those two submissions in turn.

In the course of what I will call the substantive refusal letter of 28 November 2008 the Secretary of State concluded:

As to the first submission - the expectation of favourable treatment policy - what has emerged from the revised and refined submissions made by Mr Lam, on behalf of the claimant, is that his best case is a reference to the policy regarding unmarried partners that was contained in the operational instructions given to immigration officers. It was a published policy document until it was removed at some time in 2008, possibly at the same time as the longstanding policy DE3/96 was removed.

What the policy at [paragraph] 3-36.4.1 stated was that where the subject has a genuine and subsisting relationship akin to marriage with a person present and settled in the United Kingdom, a couple who lived together in this country for at least two years before enforcement action - and other requirements are set out - he is eligible for favourable consideration. However the limb of the policy which is most pertinent to the present case deals with claims to remain after the commencement of enforcement action. For the sake of clarity, the narrative history already given in this judgment identifies that that date was 12 June 2003. It is the case that claims to remain as a partner of Miss Taylor were made after that date.

This is the relevant paragraph of the policy the claimant would need to satisfy in order to have an expectation of favourable treatment under it:

Mr Lam complains that the Secretary of State has never recognised the existence of the relationship despite numerous letters, documents and other material showing cohabitation for substantial periods or showing cohabitation at various times over a substantial period.

In my judgment, that is not the proper reading of the letter. The Secretary of State is not satisfied that there had been cohabitation of the quality akin to marriage for the period claimed by the parties. An analysis of the material relied upon by Mr Lam, in my judgment, merely demonstrates that the Secretary of State was entitled to be satisfied that there was no clear evidence of cohabitation as husband and wife from before 12 June 2001 which was the necessary period in order to have accumulated two years or more before 12 June 2003 the cut-off date. In short, the highest case is that Miss Taylor says that she met the claimant for the first time in March 2001. Shortly after that they became boyfriend and girlfriend - partners. One or two other friends are saying - in April 2008 - that cohabitation commenced as early as April 2001. But there is no particular reason why that date is given. Some of the informants were not present in this country so it would be hearsay at the time and there is no documentary evidence that cohabitation began as early as April.

In any event, it seems to me the nature of the relationship - the cohabitation - is not on the same basis as husband and wife which would require the relationship to have matured to the point of mutual commitment to an intended permanent relationship and the exclusion of others. More significant is the fact that when Miss Taylor described the matter in a letter she wrote to the Home Office in October 2007 she explained they had become engaged in July 2002. It might be at around about that time it could be said that the factual statement is supported and there was at that stage mutual commitment that - even though they were unmarried - could be regarded as equivalent to marriage.

Mere starting of a relationship, mere periods of cohabitation and a mere boyfriend/girlfriend relationship do not, of itself, equate to the status of husband and wife. One of the difficulties in assessing relationships outside marriage - sometimes known as common law relationships - is precisely when it can be said that the relationship is truly well established and has therefore characteristics similar to those of husband and wife.

I have looked through the other material that Mr Lam relies upon as meeting the requirements of discharging what is clearly a burden upon the claimant and his partner to establish the proviso to the normal course because of the date when the claim was made and the particular need for clarity of evidence at the time. There is nothing capable of so doing.

I therefore reject the first limb of this claim that there was evidence which no reasonable Secretary of State should have rejected as substantiating a relationship akin to common law marriage dating from before 12 June 2001, and there is no reasonable prospect, in my judgment, on that evidence, of an immigration judge being so persuaded to allow an appeal on that basis alone.

I turn to Article 8 - the second limb - which is perhaps the substantive argument in the case. Here the relevant factors are, first, there is no child born to this couple. That means the family life claim is based entirely upon the relationship of the inter-dependence of two adults of mature years and capacity and, in my judgment, that is a factor of considerable significance in understanding and applying the case law relating to justifications of interference with the right to respect for family life. It is true that both partners to the relationship have adult children lawfully resident in this country. The case law suggests, absent exceptional factors of special dependency of parent on a child or vice versa, the presence of adult family members would not normally justify regularising someone unlawfully present, simply on the basis of not being able to continue the relationship.

The third factor that is relied upon is length of residence here. It is true that the claimant has been here for some eight-and-a half years and certainly has been in a relationship with his partner of an apparently enduring sort from the summer of 2002 and possibly before.

It is important to look at his immigration status at the time of that relationship. He was an asylum seeker who failed to make out his claim. He was served with removal directions within, it would seem, two years of the decision to become engaged at a time when he knew there was a realistic possibility that he would not be granted recognition as a refugee. His position was insecure and unstable. Since then the relationship has been maintained against a background of very considerable uncertainty with regard to the claimant's immigration status.

For reasons I have just indicated in respect of the first limb of the challenge, I am satisfied that there was never any legitimate expectation that this couple would be allowed to remain together under the rules, under a policy or practice or by reason of excessive delay in dealing with the case or merely by being allowed to get on with their lives by the Home Office unconcerned about the likely effect of putting down roots in the meantime. The absence of legitimate expectation of being allowed to remain on grounds of a relationship akin to marriage is a significant factor because a fair balance between like cases and the enforcement of immigration control, which now is known to be strict, means that the Secretary of State is entitled to maintain her strict immigration policy unless there are factors which would require a different approach based on individual circumstances.

The final factor that is relied upon is the health of the partner, Miss Taylor, who does have emphysema and related medical difficulties. She has prescription medicine, and is regarded as having difficulties in obtaining access to the employment market because of her medical condition. The evidence in this respect is somewhat patchy because there is no medical report which there should have been. The claimant was hoping that the Secretary of State would give particular weight to this factor. There are sufficient indications that there are indeed genuine medical problems to require at least some consideration to be given to them. The Secretary of State acknowledged them in her letter.

What is particularly relied upon and the real focus of the debate today has been the unreasonableness - with the relationship of a quality that those elements indicate - to require the claimant to return to Turkey in order to apply for entry clearance as an unmarried partner under the relevant immigration rules - at paragraph 295A of HC395 - as amended.

Particular reliance is placed on a decision of the House of Lords in Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 and the passages of Lord Brown dealing with the relevance of the argument that there would no violation of Article 8 to require a partner to go abroad for entry clearance as a spouse at paragraphs 45-46. Of course each of these factors is fact-sensitive. It is perfectly true that Lord Brown was denouncing a much more restrictive approach identified in a number of other earlier decisions - to some of which he had been party - which tended to suggest that it routinely had been a solution in many classes of family life cases. Chikwamba was a case where there was a child born and it would have been impossible for the child and its mother to return with the partner to Zimbabwe as he was a recognised refugee from Zimbabwe. Not every case will be quite so stark as regards reasonable obstacles to family life abroad.

The court has referred to and takes into account the decision of VW (Uganda) v Secretary of State and Others [2009] EWCA Civ 5 (16 January 2009) where Lord Justice Sedley addressed the same issue and pointed out that Article 8 is engaged where there are obstacles making it unreasonable to expect a partner to return to the place from where the claimant might have come. The test for engagement of Article 8 is not insurmountable obstacles. Where the obstacles are indeed insurmountable, if there is genuine family life to be enjoyed, that may be conclusive in favour of the claimant. He also observed the fact that entry clearance might be available in th ecase of separation from a child makes it less rather than more likely that removal should be insisted upon (paragraph 49 of his judgment).

I have had regard to those passages. That it seems to me is the high point of Mr Lam's case. Nevertheless I conclude that taking those observations and applying them to the factual matrix of the case, his application fails because, in my judgment, there are no reasonable prospects that an immigration judge, looking at the same material on an appeal, would allow this appeal on Article 8 grounds.

The reasons should be - by now - apparent, but I summarise them as follows: the nature of the residence; the unstable situation in which the relationship developed; the absence of legitimate expectation. The absence of a child with a requirement to be attended by both parents throughout its developing years is a particular cogent factor on this aspect of the case. The fact that the health concerns of the partner are not such as to make it disproportionate or unreasonable to require the claimant to regularise his status in this country by applying for entry clearance from abroad and undergoing a period of time when he will not be present to support her.

I do however accept that the claimant will be able to establish, first, that this is a genuine relationship of many years' duration; secondly, that the parties appear to be committed to each other as husband and wife and that commitment is set against the background where they have other family and friends making it appropriate that their matrimonial home is here. The next factor is that I also accept that there would be manifest obstacles in Miss Taylor relocating to Turkey on anything like that on an indefinite basis. She has no connection with that country, its language or culture. She has substantial family here. Her health position would make it wholly unrealistic to have any expectation that she should set up, at her age, a new life in Turkey.

But the mere fact that there are obstacles to her relocating to Turkey - and it would be unreasonable to expect her to go to Turkey - does not of itself make out this case on Article 8 and make out reasonable prospects that an adjudicator would find an Article 8 case founded. Notwithstanding the guidance in Chikwamba, in my judgment, the requirements of fair and firm immigration control do make it justifiable and proportionate to require this claimant to seek re-admission to be with his partner through the route provided by the immigration rules. In requiring him to do so he will not be more favourably treated than others in a similar situation and there are no compelling factors that would arguably make that requirement disproportionate.

If he returned to Turkey there are plenty of entry clearance posts which do not have long queues which could give prompt consideration to the merits of an application where perhaps the one issue he has to satisfy is that of his ability to support his family by his own ability to take employment. He is able-bodied and has taken employment in this country. His capacity to take employment should be considerable and should be recognised as a factor in favour of the claim. I can see no formal obstacles to such a claim succeeding. I note that the Secretary of State in the decision letter thought that the process of applying for entry clearance would be short and therefore her anticipation is that the period of separation would be short. I agree that should be the case. Sometimes there is the problem of the amended rules - HC320 - which suggest that a period of 12 months is imposed as a discipline for irregular departure.

In my judgment that does not trump the other indications in this case that this is an application which should fail for the following two reasons. First, the court has been informed that there are exceptions to that provision for spouses or common law partners in the same position as spouses. Although the text has not been analysed by the court, I am not surprised to hear that because plainly such a rule would be disregarded where Article 8 requirements suggested that a long period of separation would be disproportionate.

Secondly, there is nothing particularly striking in this immigration history to suggest a positive detriment to this country by reason of illegal entry because nearly all asylum seekers must so enter to bring a claim at all. It is fanciful to think otherwise. This was not an asylum claim dismissed in fairly colourful language as fraudulent, as is sometimes the case, and, on the facts as found, it would not have been unreasonable to have tried to have laid his narrative before an immigration judge albeit without success. There is no other indication I can discern on the papers of discretionary factors against the claim. Although this court does not decide entry clearance applications and therefore give no expectation of an outcome, in my judgment, this application is refused and only refused because, both in the decision letter and in the analysis of the rules and policy and in the analysis of the case, in this case it is reasonable to require the claimant to be treated as other persons who are seeking to remain with their partners would normally be treated in the absence of compelling and exceptional circumstances.

If there was any suggestion that this case would not be looked at deliberately for 12 months or it would be thought - despite the satisfaction of all the relevant factual foundations of substance of the rules - that discretionary grounds based on his presence to date in this country would nevertheless determine the case against him, I would hope and expect the immigration judge to discount those factors as inappropriate, disproportionate and irrelevant because, in my judgment, if the primary facts are substantiated, this is a case which has every expectation of reunification.

It is on that basis and that basis alone I conclude that an immigration judge would be likely to dismiss any appeal made now.

This will not be welcome news to the claimant and his partner. It is not for absence of sympathy with their predicament that this court makes its decision. This court must act within the sensitive policy confines set by the Secretary of State who is accountable to Parliament for the balance that she draws in these matters. Article 8 is an important balancing factor which can be prayed in aid. It does not mean every person who has a relationship can be entitled to avoid the requirements of the rules.

For those reasons - that I fear I have given at far too great a length - I dismiss this application.

MISS OLLY: I am grateful. The claimant is legally aided. I have an application for the Secretary of State's reasonable costs. Enforcement will be another matter.

MR JUSTICE BLAKE: What is the term of the order? It is subject to -

MISS OLLY: I think with leave of the court.

MR JUSTICE BLAKE: It used to be leave of the court. I thought it was detailed assessment. You want detailed assessment of costs. It is also whether he has any capacity to pay the costs. It is not to be enforced without leave of the court.

MR LAM: That is the substance.

MR JUSTICE BLAKE: That is the substance.

MR LAM: I am only asking for detailed assessment.

MR JUSTICE BLAKE: Yes. Thank you for your assistance.