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Cite as: [2011] EWCA Civ 736

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Neutral Citation Number: [2011] EWCA Civ 736
Case No: C5/2010/0607


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :



- and -



Mr Abid Mahmood and Ms Nazmun Ismail (instructed by Immigration Advisory Service) for the Appellant
Mr Tim Eicke QC (instructed by Treasury Solicitors) for the Respondent
Hearing dates : Monday 24th January 2011



Crown Copyright ©

    Lord Justice Rix :

    This is the judgment of the court.

  1. YT appeals against the rejection of his application for entry clearance to the United Kingdom as the spouse of his sponsor, his wife Mrs Senali Tesfai.
  2. The appellant is a citizen of Ethiopia, born in January 1980, currently living in Italy where he was granted asylum in October 2007. He has employment and a home there. His wife, whom he married in Italy on 23 December 2007, is also a citizen of Ethiopia, and has refugee status in the UK, where she lives with their daughter, who was born on 29 March 2008 and is now three. The wife's five year status as a refugee with limited leave to remain for that period expires in 2011. She is therefore not "settled" here and their daughter does not have UK citizenship. It is also common ground that she could not maintain or accommodate the appellant without recourse to public funds.
  3. The appellant reached Italy in 2004, but lost patience with his claim for asylum there and came to the UK and claimed asylum under a false identity (viz under the name of Solomon Noah, born 9 June 1982, of purported Eritrean nationality). His dual claim for asylum was discovered by means of a fingerprint check and he was returned to Italy, where his claim finally bore fruit.
  4. The appellant's application for leave to enter was rejected by the entry clearance officer's decision dated 9 October 2008. At that time the officer was inter alia not satisfied that the appellant had produced a valid national passport or other document satisfactorily establishing his identity and nationality. For the same reason he was unable to satisfy the officer that he was married to his wife. The decision in any event proceeded on the basis that there was nothing in article 8 of the European Convention on Human Rights to require his entry: his wife could relocate to, or visit, Italy, where she had married the appellant and where all their family life together, including the conception of their daughter, had been conducted.
  5. The appellant's appeal came before Immigration Judge Telford, whose determination of 2 June 2009 dismissed his appeal. IJ Telford agreed that article 8 was not engaged. His wife had visited the appellant in Italy 5 or 6 times, but not since the birth of her daughter.
  6. The appellant sought reconsideration. Senior Immigration Judge Goldstein ordered a first stage reconsideration on 10 August 2009 on the ground that a material error may have been made on burden and standard of proof. The matter then came before Senior Immigration Judge Eshun who ordered a second stage reconsideration following a hearing on 25 September 2009. She said that as the identity of the appellant was vital, he should have the opportunity to establish his true identity by relevant documents.
  7. The second stage reconsideration was considered by Immigration Judge Parkes, who promulgated his determination on 15 December 2009. This is the determination which has come before this court by way of appeal.
  8. IJ Parkes accepted that the appellant had proved his identity and marriage. However, his difficulty was that his wife was not settled here, and he could not be maintained or accommodated here without recourse to public funds. As for article 8, IJ Parkes said this:
  9. "19…the evidence shows that the Appellant and sponsor have exercised their family life in Italy having been put in touch by a mutual friend and have not exercised any of their social contact in the UK. The evidence shows that the Sponsor has visited the appellant in Italy on several occasions and there is no evidence to show that she cannot continue to do so or that she would not be allowed to relocate there. The Appellant and Sponsor did get married in Italy and that is where there daughter was conceived.

    20. In addition to that the Appellant works in Italy and has held a number of jobs. He has accommodation which may not be ideal but is sufficient for the Sponsor when she visits. The Sponsor has met a number of the Appellant's friends in Italy and has attended church with him…

    22. Article 8 does not confer on an applicant a right to dictate where family life is exercised. Italy is a signatory to the ECHR and there is no evidence to show that the Appellant's and Sponsor's rights under that article would not be adequately protected in Italy.
    23. In summary the Appellant and the Sponsor enjoy family life in Italy. That is where their family life was established and has always, for practical purposes, been exercised. There is no evidence to show that the Sponsor could not go to live in Italy, or that it would be unreasonable for her and her daughter to do so. It has not been explained why the Appellant would prefer to reside in the UK and the inconvenience of relocating would apply to him as much as it will apply to his wife and daughter."

  10. Permission to appeal further to this court was granted by Senior Immigration Judge McKee on 8 February 2010. He stated:
  11. "The grounds for seeking permission to appeal make an arguable case concerning the unexplained lacuna in the Immigration Rules which prevents a refugee with five years' leave to remain in the United Kingdom [viz, the appellant's wife] from being joined by a spouse when the marriage took place after the refugee had left the country of habitual residence. Other categories of migrant with limited leave are allowed to be joined by their spouses, and the Court of Appeal has already expressed concern over this matter in A (Afghanistan) [2009] EWCA Civ 825, in which the appeal was allowed outright under Article 8. The present case bears a close similarity, and is apt to be considered by the Court of Appeal."

  12. The essential ground of appeal as argued by Mr Abid Mahmood on behalf of the appellant has been centred on article 8 (coupled with article 14). It is submitted that the relevant immigration rules discriminate unfairly against the appellant and his family by excluding him from the right to enter available to other categories of entrants who are permitted to join spouses present but not settled in the United Kingdom. It is submitted that article 8 requires not only the absence of interference with family life, but also the positive duty to respect and promote it. It is submitted that the relevant rules must therefore be overridden so as to enable article 8 to protect the appellant's right to enjoy a family life with his wife and daughter in the United Kingdom by enabling him to enter and remain here.
  13. The relevant rules in question are to be found in paragraphs 352A and 281 of the Immigration Rules. They provide as follows:
  14. "352A. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse or civil partner of a refugee are that:
    (i) the applicant is married to a person granted asylum in the United Kingdom;
    (ii) the marriage or civil partnership did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum…"

    "281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
    (i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to remain in the United Kingdom or is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since when they have been living together outside the United Kingdom; and…
    (iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and
    (iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
    (v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds…"

  15. The appellant fails prima facie to bring himself within these rules or either of them for the following reasons.
  16. As for para 352A, the appellant's marriage to his wife took place after he fled Ethiopia. His is a so-called "post-flight" marriage, and as such is not within the rule (see para 352A(ii)). As for para 281, there are two difficulties. First, his sponsor wife is not "settled" in the United Kingdom, for she only holds a limited right to remain (cf para 281(i)(a)). As a result she also lacks a right of abode or indefinite leave to enter or remain in the United Kingdom (cf para 281(b)(ii)). Prior to a change in August 2005, refugees were permitted indefinite leave to remain: now, however, they are only granted leave in the first instance for 5 years. The second difficulty within para 281 is that it is conceded that the appellant cannot meet the maintenance and accommodation requirements of the rule.
  17. Mr Mahmood seeks to overcome these difficulties as follows. As for para 352A's restriction to pre-flight marriages (or civil partnerships), he cites the criticisms referred to in A (Afghanistan) [2009] EWCA Civ 825. That concerned a post-flight marriage of an Afghan sponsor refugee husband within the United Kingdom, who had only a limited right to remain for 5 years, and an Afghan appellant wife living in Pakistan. It had been found, and was not in issue in this court, that the sponsor could not reasonably be expected to live in Pakistan on a long term basis (at [10]). There appears to have been no issue about maintenance or accommodation. The appellant's case was based on article 8. It was there conceded (but the Secretary of State does not make a similar concession in the present appeal) that Lord Bingham's five questions for the application of article 8 in Razgar [2004] UKHL 27, [2004] 2 AC 368 at [17], which begin "(1) Will the proposed removal…?", applied equally to a refusal to grant entry clearance as it did to Razgar's case of a proposed removal. Reference was made in the judgment of Hooper LJ to an observation by Moses LJ in R (on the application of Fawad Ahmadi) v. The Secretary of State for the Home Department [2005] EWCA Civ 1721 at [18] that –
  18. "There is ample authority for the proposition that the obligations under Article 8 require a state not only to refrain from interference with existing life, but also from inhibiting the development of real family life in the future."

  19. There was some discussion in that case concerning the limitations of the rules relating to post-flight marriages and sponsors who are not settled within the United Kingdom. It appears that in the AIT there had been an issue as to what may have been the public interest involved in limiting para 352A to pre-flight marriages. Thus Hooper LJ (at his para 47) cited from the AIT determination inter alia as follows:
  20. "We at any rate cannot identify a public interest in preventing refugees like the sponsor from being joined by spouses whom they can maintain and accommodate adequately, when other categories of immigrant who are here with limited leave, and who may not be intending to stay permanently, can be joined by theirs."

  21. The Secretary of State in A (Afghanistan) sought to reopen that issue, but this court did not permit it. Hooper LJ said:
  22. "51. In the light of the procedural history of the case I take the view that the [the Secretary of State] 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.
    52. 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…"

  23. Wilson LJ agreed. Pill LJ said:
  24. "57. 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 the merits, applying the usual principles."

  25. In the circumstances, we do not consider that A (Afghanistan) is of much assistance. First, Hooper LJ emphasised that the public interest issue regarding post-flight marriages was not before the court. Secondly, he stressed the consequence that the decision in that case was of no authority, persuasive or otherwise, in other similar cases which raised that issue. Thirdly, there was no problem in that case regarding maintenance or accommodation. Fourthly, the AIT had found, and it was a basis of the appeal that the sponsor and the appellant could not enjoy a family life in Pakistan. There was thus nowhere other than the United Kingdom where appellant and sponsor could enjoy their family life together.
  26. Mr Mahmood also relied on a decision of the Upper Tribunal (Immigration and Asylum Chamber), presided over by Lord Justice Sedley, in FH (Post-flight spouses) Iran v. Entrance Clearing Officer, Tehran [2010] UKUT 271 (IAC). The headnote of that decision, under the name of Mr C M G Ockelton, Deputy President, reads as follows:
  27. "1. The Immigration Rules make no provision for the admission of post-flight spouses of refugees with limited leave. The Rules should be changed. In the meantime it is most unlikely that it will be proportionate to refuse the admission of the spouse of a refugee where all the requirements of paragraph 281 are met save that relating to settlement.
    2. Immigration Rules cannot be the subject of incompatibility under s. 4 of the Human Rights Act 1998, and in any event, a Tribunal has no power to make such a declaration."

  28. In that case, the appellant wife and sponsor husband came from Iran. They had known each other since 1999 (when they were about 23 and 19 respectively) and had remained in contact since. The sponsor had come to the United Kingdom in 2002, where he had gained asylum, and the appellant had apparently at that time remained in Iran. In 2008 they travelled to Turkey where they were married. The appellant now sought to join her husband. It was established that "the sponsor's financial circumstances were such that the appellant would be maintained and accommodated adequately without recourse to public funds" (at para 4).
  29. The appellant's appeal was allowed. Mr Ockelton referred to A (Afghanistan) and continued:
  30. "14. The present appeal, so far as we are aware, is the first opportunity that the Tribunal has had to consider the matter…It is clear that Mr Ouseley [the Home Office Presenting Officer] has endeavoured to obtain all the information he could, in order to put the Secretary of State's case before us in full…In his written skeleton he…continues as follows:
    "…That, by and large, means that anyone seeking leave to enter or remain to join a refugee [sc as] a post-flight spouse will not be a refugee, and the UK will not have the same obligations towards them. There are other categories of immigrant (e.g. work permit holders and students) whom UK wishes to attract to the UK for the contribution they make to the economy and the education sector. Not to allow them to bring family members here could detract from that goal. In relation to refugees, the Rules give effect to the UK's international obligations to offer protection, but do not actively seek to encourage asylum seekers to come to the UK."…

    19. Mr Ouseley told us that he was still unable to say whether the consequence for the spouses of the change of policy was intentional or unintentional. The position as it is before us is that, as we have indicated, the appellant and other post-flight spouses seem to be the subject of particularly disadvantageous treatment; no public interest in that treatment has been identified; the Secretary of State is not even able to say whether the difference is intentional; but the effect of the Rules is that the difference undoubtedly exists."

  31. The difference referred to was that in the case of other unsettled entrants, such as students or workers, it was possible to sponsor the entry of spouses, even post-entry spouses, provided that the standard condition of maintenance and accommodation without recourse to public funds was met. In the case of (unsettled) refugees and post-flight spouses, however, the rules did not provide for entry of the latter at all, not even under the standard condition of maintenance and accommodation without recourse to public funds.
  32. In the result, the appeal in FH (Post-flight spouses) Iran was allowed on the following basis:
  33. "23. So far as the present case is concerned, it is not suggested that there is any country in the world other than the United Kingdom, where the appellant and the sponsor can live together as husband and wife. The appellant meets all the requirements of the paragraph 281, save that relating to the sponsor's status in the United Kingdom. No argument justifying her exclusion, on grounds that her exclusion would in the circumstances be proportionate, has been adduced by the respondent or on his behalf. We have no hesitation in saying that in this case, the article 8 rights of the appellant and sponsor demand that she be granted entry clearance. We shall therefore allow this appeal."

  34. That therefore was a decision on the facts where, as in A (Afghanistan), there was nowhere else in the world where appellant and sponsor could live together; and there was no problem so far as maintenance and accommodation and therefore the need for any reliance on public resources were concerned.
  35. The present case, however, is in both these important respects completely different. The AIT has found that there is nothing to prevent the sponsor joining the appellant in Italy, where he has asylum, accommodation, and work; whereas in this country the sponsor lacks the resources to provide accommodation or maintenance for the appellant without recourse to public funds. The requirement of an absence of recourse to public funds is a condition for entry for the family of the other categories of temporary, and therefore unsettled, immigrants to this country, such as workers and students, of which mention was made in A (Afghanistan) and FH (Post-flight spouses) Iran. Moreover, Italy was where the appellant and sponsor married in this case, and where they have spent such time together as they have enjoyed as a married couple.
  36. In these circumstances, whatever might be the position regarding the larger issues debated, or conceded, or not discussed, in A (Afghanistan) and FH (Post-flight spouses) Iran: such as whether article 8 applies in the same way with regard to removal of one member of a family unit from this country as with regard to leave to enter to join a spouse in this country; and whether it applies in the same way positively to promote family life as not to interfere with it; and whether there is in truth no respectable public policy or public interest difference with regard to asylum refugees and other migrant workers or students who are present in the United Kingdom on an unsettled or limited basis; none of those larger issues seem to us to be necessary to decide in a case such as this. In the present case, the AIT has found facts which cannot be challenged, and has considered those facts for the purpose of considering whether the immigration rules can be set at nought on an individual basis because of disproportionate and unjustifiable interference in family life for the purposes of article 8. We can find no reason for regarding the conclusion of the tribunal as doubtful or unsatisfactory. Given the failure of this appellant to come within the maintenance and accommodation requirements, there can be no question of discriminatory treatment in this case. We have borne in mind that article 8 may involve positive obligations inherent in an effective respect for family life.
  37. It was for these reasons that at the time of the hearing of this appeal, we dismissed it. In the circumstances, it is unnecessary to decide the larger issues debated. We would merely observe that we regard those issues as unresolved. In saying so we bear in mind that no Strasbourg jurisprudence has been cited to us to detract from the essential and well-known doctrine to be found for instance in Gül v. Switzerland [1996] 22 EHRR 93 or Ahmut v. Netherlands [1997] 24 EHRR 62. Both cases involved the question whether the state had failed in its article 8 obligations in refusing to permit family members to join an immigrant resident in the state. In Gül the ECtHR said this:
  38. "38. The Court reiterates that the essential object of Article 8 is to protect the individual from arbitrary action by the public authorities. There may in addition be positive obligations inherent in effect[ive] "respect" for family life. However, the boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.
    The present case concerns not only family life but also immigration and the extent of a State's obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest. As a matter of well established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory.
    Moreover, where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory. In order to establish the scope of the State's obligations, the facts of the case must be considered."

    See also Ahmut at para 67, and Sen v. Netherlands [2003] 36 EHRR 7 at para 36.

  39. In this connection, it is also relevant to observe that the EU's Qualification Directive 2004/83 does not include post-flight spouses within its definition of "family members": see article 2(h), which provides that –
  40. ""family members" means, insofar as the family already existed in the country of origin, the following members of the family of the beneficiary of the refugee…"

    See also the Family Reunification Directive 2003/86 (which however does not apply to the United Kingdom) at article 9(2) which limits the right to family reunification to "refugees whose family relationships predate their entry".

  41. In conclusion, this appeal was dismissed for the reasons contained in this judgment.

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