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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> R v Secretary of State for the Home Department (Srilanka) [2003] UKIAT 00093 (14 October 2003) URL: https://www.bailii.org/uk/cases/UKIAT/2003/00093.html Cite as: [2003] UKIAT 93, [2003] UKIAT 00093 |
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LSH
Heard at Field House
[2003] UKIAT 00093 R (Sri Lanka
)
On 30 September 2003
Dictated: 30 September 2003
Date Determination notified: 14/10/2003
Between
APPELLANT
RESPONDENT
Representation:
For the appellant: Mr J McGirr, Home Office Presenting Officer
For the respondent: Mr R Maloney, instructed by M K Sri & Co
"45. Article 8 was also relied upon. The appellant married her husband in India in January 2001. She then sought entry clearance to join him but this was refused as her husband was not a UK resident and only had exceptional leave to remain. It is argued that since her arrival here she has lived with him and that they have established a family life; indeed the appellant is expecting a baby in February 2002. (sic).
46. There was no challenge to the fact that the couple had been living together since the appellant's arrival in August 2001. In contrast to immigration rules and previous Home Office policy concerning persons in a relationship akin to marriage, there is no fixed time limit before a relationship can be said to constitute family life. I am therefore satisfied that a family life has been established; the appellant's pregnancy is obvious proof of that. This is a matter which I find I am able to take into account as the Secretary of State was aware of the marriage at the time of decision, the marriage pre-dated the appellant's entry into the United Kingdom and the pregnancy, whilst a post decision fact, clearly relates to the marriage and must have been a foreseeable fact…"
"51. At the time of the marriage the appellant was outside the UK and had no reason to believe that she would not be permitted to join her husband. Her husband is unable to return to Sri Lanka
as he came here as an asylum seeker and indeed has been granted 4 years ELR. This expires in January 2004. He is not entitled to submit an application for residence until that time and it is not known how long the application would take to be processed. Assuming it is granted and is not simply extended, the appellant could then make an application to join him in the UK. That would also take time to be processed. Meanwhile they would be forced to live apart and their child, which is due in February, would spend the first few years of his life without the presence of his father.
52. I accept Mr Cottrell's submission that the appellant has sought to circumvent the immigration rules but given that the appellant's child will be adversely affected through no fault of its own, I find that removal cannot be right. The factors in favour of allowing the appellants to remain in the UK outweigh the adverse factors….
54. The appellant's husband cannot return toSri Lanka
. Therefore, if the couple are to continue to conduct a family life it cannot be in the appellant's country of origin. There is no evidence that any other country would grant residence to the couple.
55. There are currently real obstacles in the way of the appellant pursuing from abroad an application for entry clearance as a spouse. The application could not be made for at least another 18 months and even then it is not certain that the appellant's husband would be granted ILR. Given the length of time involved, I find that a removal decision would amount to a disproportionate measure, since its consequence could be the prolonged or possibly permanent separation of the couple.
56. Whilst I fully accept that it is legitimate for the Immigration Authorities in the interests of the maintenance of effective immigration control to require certain applicants to apply for entry clearance from abroad, I find that in the exceptional circumstances of this case there is a real risk that entry clearance would not be granted, accordingly the couple would face insurmountable obstacles to continuing their family life either inSri Lanka
or in the UK."
D B Casson
Acting Vice President