MS v The Entry Clearance Officer, Addis Ababa

The Appellant is a national of Somalia, born on 1 February 1990. By an application dated 18 June 2009, she applied for entry clearance in order to join her husband, Mr. Hassan Saeed Abdallah (the sponsor), in the United Kingdom. The sponsor is also a Somali national, born on 1 January 1989. Her application was refused by the Respondent on 30 June 2009 on the ground that she was under 21 years of age and therefore too young to meet the age requirement in paragraph 277 of the Statement of Changes in the Immigration Rules HC 395 (as amended) (‘the Immigration Rules’). In addition, the Respondent refused her application under Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

The Appellant's appeal was heard on 3 March 2010 before Immigration Judge Blake, who dismissed the appeal under the Immigration Rules and on human rights grounds. His decision under the Immigration Rules was not challenged. On 5 May 2010, the First-tier Tribunal granted permission to appeal to the Upper Tribunal, limited to Article 8. It was considered arguable that the Immigration Judge failed to make proper findings or give legally adequate reasons for concluding that the Appellant’s exclusion did not contravene her rights under Article 8.

On 10 August 2010, Senior Immigration Judge Perkins issued directions which (to the extent relevant) state:

“1)

Having regard to all the circumstances, including the failure of the respondent to serve within the permitted time a response which adequately explains why the decision of the First-tier Tribunal does not contain an error of law and should not be set aside, or any response, the Upper Tribunal, pursuant to rule 34, has decided without a hearing that the decision of the First-tier Tribunal does contain an error of law, as identified in the grant of permission, read with the grounds of application, and should be set aside and re-made by the Upper Tribunal.

2)

The appeal will accordingly proceed to a hearing for the purpose of considering evidence relevant to the re-making of the decision and the following directions are hereby given.

3)

The parties shall prepare for the hearing on the basis that none of the findings of fact of the First-tier Tribunal shall stand.

4)

[not relevant]

5)

Notwithstanding point 3 above, at the hearing of the appeal the parties will be invited to agree core facts. It seems that they are not in issue.”

The sponsor arrived in the United Kingdom on 22 February 2006. He was recognised as a refugee by the Secretary of State who, on 25 June 2007, granted him limited leave to remain until 21 June 2012. The sponsor first met the Appellant on 2 February 2005, whilst they were both still living in Somalia. They lost contact with each other after the sponsor fled to the United Kingdom. However, they regained contact in 2007 after the Appellant fled to Ethiopia. They formed a relationship by telephone and continued it by e-mail. In June 2009, the sponsor travelled to Addis Ababa. He married the Appellant on 15 June 2009 in Addis Ababa. They lived together as husband and wife until 1 October 2009, when the sponsor returned to the United Kingdom. The sponsor said that he was not aware of the age limit.

In his written statement, the sponsor said that he has been employed since November 2007 full time by Asda superstore as a warehouse operator, earning approximately £12,650.00 per annum without overtime.

The sponsor gave oral evidence before us through an interpreter, interpreting in the Somali language. His wife does not have any legal status in Ethiopia. His mother, his brother and two cousins are in the United Kingdom. His mother is 71 or 72 years old. His brother is twenty years old. The sponsor does his mother's shopping for her and takes her to the doctor whenever necessary. He helps her as and when necessary. His brother has two children; the older is 6 years old and the younger a few months old.

Under cross-examination, the sponsor said that he has been to Ethiopia twice. The first occasion was from February or March 2005, when he fled the war in Somalia. He stayed in Ethiopia until June or July 2005, when he returned to Somalia. Asked whether facilities were made available to him in Ethiopia, the sponsor said that he had nothing in Ethiopia.

In 2006, he left Somalia again to travel to the United Kingdom. On 11 June 2009, he travelled to Ethiopia from the United Kingdom. He stayed there for six months, until 1 October 2009. He stayed in the market where Somalis live in Ethiopia and where his wife currently lives. They rented a room in a hotel belonging to Somalis. His wife survives on what he sends her. Asked whether facilities were made available to him in Ethiopia during this visit, the sponsor said that he had what he took with him from the United Kingdom.

The sponsor wants to be reunited with his wife. He is unable to live alone without a woman. He could not live in Ethiopia. He does not have any legal status in Ethiopia. He has a job and a life in the United Kingdom. He has family in the United Kingdom.

We asked the sponsor whether he would be able to visit the Appellant in the period before she reached her 21^st birthday, when she would be able to lodge another application for entry clearance as spouse. He said that it is good for a couple to live together in the same place. He is worried that everything he has built up might break up in the next few months. Asked to explain this, he said that he was afraid that “something dark” might come into their relationship and that the Appellant might think that he has not been trying hard enough for her to join him. He worries about the Appellant constantly. He feels bad whenever he sees other people together. He has had a holiday since his last holiday in Ethiopia but he chose not to visit the Appellant. This was because she feels heartbroken when he leaves her.

Ms. Isherwood relied upon the Refusal Notice dated 14 December 2009. She submitted that the sponsor was capable of going to Ethiopia to live with the Appellant or to visit her. It would not be disproportionate to expect the sponsor to do so in the period before her 21^st birthday.

Ms. Brissett submitted that it would not be proportionate to refuse the Appellant entry to the United Kingdom. It was not reasonable to expect the sponsor to live in Ethiopia with the Appellant because the sponsor and the Appellant do not have any legal status in Ethiopia. The sponsor has a job and accommodation in the United Kingdom. He is involved in caring for his mother. His departure would impact upon members of his family in the United Kingdom. At the date of the decision, the Appellant was 19 and a half years old. Accordingly, as at the date of the decision, she and the sponsor would have had to wait one and a half years before the Appellant was eligible for entry as spouse under the Immigration Rules.

We reserved our decision.

By virtue of section 85(5) of the Nationality, Immigration and Asylum Act 2002, we must determine this appeal by considering the circumstances appertaining as at the date of the decision. We reminded ourselves that we must decide whether there were substantial grounds for believing that the Respondent's decision to refuse the Appellant’s application for entry clearance would be in breach of any protected rights under Article 8 of the ECHR. We followed the step-by step approach explained at paragraph 17 of the judgment of the House of Lords in R v SSHD ex parte Razgar [2004] UKHL 27. Pursuant to the guidance given in Beoku-Betts v SSHD [2008] UKHL 39, the human rights of each party affected by the decision and who enjoys any protected rights within Article 8 (1) must be considered.

In relation to the first of the five questions we must consider (whether family life within Article 8 (1) is being enjoyed), we noted that the Respondent did not consider whether the marriage was subsisting in reaching his decision under the Immigration Rules. However, for our part, we saw no reason to doubt that the Appellant and the sponsor have a genuine marriage and that the circumstances appertaining as at the date of the decision were such that they enjoyed family life together within the meaning of Article 8 (1). In reaching this finding, we took into account the sponsor’s evidence that he lived with the Appellant from the date of the marriage in June 2009 until his return to the United Kingdom in October 2009. We took into account the photographs of the couple on file and the sponsor’s evidence that he has sent the Appellant money for her support. However, we did not find that the relationship between the sponsor and his mother or that between him and his brother, older nephew (the younger nephew was not born at the date of the decision) or cousins was such as to amount to family life within Article 8 (1). Whilst the sponsor gave evidence of helping his mother by doing her shopping and (whenever necessary) taking her to the doctor, we did not find that the evidence showed that there was dependency going beyond the normal emotional ties. In our view, there was nothing out of the ordinary in the assistance the sponsor gave to his mother. The sponsor did not give any evidence of any dependency going beyond normal emotional ties in his relationship with his brother, older nephew or cousins.

In relation to the second of the five questions (whether the interference will have consequences of such gravity as potentially to engage the operation of Article 8), we reminded ourselves that the threshold of engagement was not an especially high one and that it was only necessary to show that the interference is real (paragraphs 27 and 28 of AG (Eritrea) v SSHD [2007] EWCA Civ 801).

Nevertheless, we were not persuaded that the decision made in June 2009 violated the Article 8 rights of the Appellant and the sponsor. As Burnett J said in Diego Andres Aquilar Quila and another v SSHD [2009] EWHC 3189 (Admin), those with a right to be in the United Kingdom were always going to face a dilemma if leave to enter or remain as a spouse is refused. Burnett J said that this could not be sufficient in all cases to justify the conclusion that an immigration decision interfered with family life if it might lead to separation, if one chose not to follow, or go to be with, the other. For the reasons given at paragraph 17 below, we did not place any weight on the sponsor’s evidence that he did not have actual knowledge of the age restriction. For the reasons given below, it has not been shown that it would be unreasonable for the Appellant and the sponsor to enjoy their family life with each other by way of visits during the period between the date of the decision and the Appellant’s 21^st birthday. On the other hand, if the decision is maintained, any enjoyment by the Appellant and the sponsor of their family life will have to take place in Ethiopia, where neither has any immigration status, whereas, if the decision is reversed, they will be able to enjoy family life within the United Kingdom where the sponsor has leave to remain as a refugee. In these circumstances, we were satisfied that, if the decision is maintained, the interference with the family life between the Appellant and the sponsor will have consequences of sufficient gravity as potentially to engage the operation of Article 8.

In relation to the third question (whether the interference was in accordance with the law), it was relevant to consider the sponsor’s evidence in his written statement that he did not know about the age restriction when he entered into his marriage. It is evident that the claimant and his wife in Quila were well aware that the claimant did not qualify for entry under paragraph 277 of the Immigration Rules at the time they entered into their marriage. Whilst we saw no reason to take issue with the sponsor’s evidence that he did not have actual knowledge of the age restriction when he married the Appellant, the jurisprudence of the European Court of Human Rights does not require it to be shown that there was actual knowledge on the part of an individual of the relevant rule or legal provision. It requires that the relevant rule or legal provision be sufficiently accessible and precise so as to enable citizens to regulate their conduct by it. It is evident from the judgment in Quila that information about the age restriction was available on the UK Border Agency website. Effective from 27 November 2008, the Immigration Rules were amended so that the age restriction was raised from 18 to 21. It was reasonable to expect the sponsor to make reasonable enquiries about the applicable rules and, if necessary, take legal advice. If he had done so, there is no doubt that the age restriction would have come to his notice before he and the Appellant were married on 15 June 2009. We were therefore satisfied that the age restriction in paragraph 277 was sufficiently accessible. We were also satisfied that the age restriction was expressed in sufficiently precise terms to enable the sponsor and the Appellant to regulate their conduct by it. The Respondent's decision to refuse the Appellant entry clearance was in accordance with the provisions of paragraph 277 of the Immigration Rules. Accordingly, we have concluded that the decision was in accordance with the law for the purposes of Article 8(2), notwithstanding the fact that the sponsor was not personally aware of the age restriction.

We turn to the fourth and fifth steps. In EB (Kosovo) [2008] UKHL 41, the House of Lords explained that the fourth and fifth questions (whether the interference is necessary in a democratic society and whether it is proportionate) are expressed somewhat differently in the Strasbourg jurisprudence, where proportionality is subsumed within the fourth question. For a decision to be “necessary in a democratic society”, it must be both “justified by a pressing social need” and “proportionate to the legitimate aim pursued”. This involves conducting a balancing exercise. We apply the guidance in Huang [2007] UKHL 11, in which case the House of Lords said that the Tribunal should “consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2)” (paragraph 16 of the Opinion), “take account of Strasbourg jurisprudence” (paragraph 18 of the Opinion), and then consider the question of proportionality, that is to say, “whether the refusal of leave, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental rights protected by article 8” (paragraph 20 of the Opinion).

The legitimate public aim pursued by the Respondent’s decision was immigration control. In this particular case, the aim of immigration control was underpinned by the policy consideration of discouraging forced marriages (see the judgment of Burnett J in Quila). We gave some weight to the state’s interest in immigration control, notwithstanding the fact that the marriage between the Appellant and the sponsor was not a forced one.

The Respondent’s decision prevented the sponsor and the Appellant from living together in the United Kingdom. However, the sponsor has already availed himself of the opportunity of visiting the Appellant in Ethiopia and living with her there for some months. In the period of one and a half years between the date of the decision and the Appellant’s 21^st birthday, it has been (and will continue to be) open to him to do so again. We acknowledge the sponsor’s evidence that he did not have “facilities” when he visited the Appellant. However, it was clear from his evidence that he and the Appellant were able to secure accommodation. He did not give evidence of any difficulties in living in Addis Ababa from day-to-day. We acknowledge that, at the date of the decision, he had (and still has) a job and accommodation in the United Kingdom. However, he has been in his employment with Asda superstore since November 2007. It appears that he was able to return to employment with the same company after his visit to the Appellant from June to October 2009. We have not been told why there would be difficulties with his employment if he were to make another visit to the Appellant, even if that were to be an extended visit. At the date of the decision, the sponsor was a tenant under the terms of an assured shorthold tenancy agreement but we have not been told why it was not be open to him to secure alternative accommodation if he lost the accommodation.

We acknowledge that neither the sponsor nor the Appellant has any immigration status in Ethiopia. However, this did not prevent the sponsor from staying with the Appellant from June until October 2009. It did not prevent him from living in Ethiopia for a few months in 2005. The sponsor did not contend that he would be unable to visit the Appellant in Ethiopia, although he said that he chose not to do so because the Appellant becomes upset when he leaves her. The sponsor gave evidence that he was afraid that “something dark” might come into their relationship. We found this rather vague and speculative, although we did not doubt that the separation as a result of the sponsor’s choice to remain in the United Kingdom, rather than be with the Appellant in Ethiopia, has upset them both.

However, in all of the circumstances and for the reasons given, we did not find that the circumstances appertaining as at the date of the decision were such that it was unreasonable to expect the sponsor and the Appellant to continue to enjoy their family life with each other in the short period between the date of the decision and the Appellant’s 21^st birthday through visits.

On the whole of the evidence (including the evidence not specifically referred to above) and having given each of the factors such weight as we considered appropriate, we found that the Respondent’s decision would not prejudice the Appellant's and the sponsor’s rights to family life in a manner sufficiently serious as to amount to a breach of any protected rights under Article 8.

The making of the previous decision on this appeal involved the making of an error on a point of law. We therefore set aside the previous decision insofar as the previous decision concerned the Appellant’s human rights claim and re-make the decision. Our decision is that the Appellant’s appeal against the Respondent’s decision is dismissed on human rights grounds (Article 8).