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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Agyarko & Ors, R (on the application of) v The Secretary of State for the Home Department  EWCA Civ 440 (06 May 2015)
Cite as:  Imm AR 1201,  INLR 198,  EWCA Civ 440,  WLR 390,  1 WLR 390,  WLR(D) 205
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ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION and ASYLUM CHAMBER)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE GLOSTER
LORD JUSTICE SALES
| The Queen on application of Agyarko
The Queen on application of Evans
The Queen on application of Ikuga
|- and -
|The Secretary of State for the Home Department
Mr Neil Sheldon (instructed by The Treasury Solicitor) for the Respondent
Hearing dates : 21-22 April 2015
Crown Copyright ©
LORD JUSTICE SALES :
The legal framework
"This paragraph applies if
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen and there are insurmountable obstacles to family life with that partner continuing outside the UK."
"Partner" in this context includes a spouse.
Mrs Agyarko's appeal
"Our client and her husband would be seriously disadvantaged in the sense that she may be separated from him and therefore the family life that they have established in the United Kingdom would be interrupted.
Most disturbingly out client is likely to face an inordinate delay in obtaining an entry clearance to the UK if she were asked to do so and there is also a risk that her application would be refused due to the fact that she is a previous overstayer."
"You have a genuine and subsisting relationship with your British partner. Whilst it is acknowledged that your partner has lived in the UK all his life and is in employment here, this does not mean that you are unable to live together in Ghana. Although relocating there together may cause a degree of hardship for your British partner, the Secretary of State has not seen any evidence to suggest that there are any insurmountable obstacles preventing you from continuing your relationship in Ghana.
You therefore fail to fulfil EX.1 (b) of Appendix FM of the Immigration Rules."
"At the time of your application you were aged 49. You were not under the age of 18 years. Neither were you aged 18 years or above and under 25 years of age. Therefore the Secretary of State is not satisfied that you can meet the requirements of Rule 267ADE (iv) and 276ADE (v).
You have spent 40 years of your life living in Ghana and, in the absence of any evidence to the contrary, it is not accepted that in the period of time that you have been in the UK you have lost ties to your home country. Therefore the Secretary of State is not satisfied that you can meet the requirements of Rule 276ADE (vi)."
"It has also been considered whether your application raises or contains any exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant consideration by the Secretary of State of a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules. It has been decided that it does not. Your application for leave to remain in the United Kingdom is therefore refused.
An application was made on your behalf on 27 September 2012. However, your leave to enter expired on 13 August 2003. Your therefore did not have leave to enter at the time of your application. "
" should take care to avoid a "tick box" approach, genuinely bear the policy guidance in mind and seek to stand back after working through the analysis required under the new rules so as to make an overall assessment of the facts to see whether there might be a good arguable case of disproportionality if leave to remain is not granted and, if there is, to examine that case with care to see whether removal would be justified. The reasoning in decision letters should seek to demonstrate that this reasoning process has indeed been gone through."
Mrs Ikuga's appeal
"[Mrs Ikuga] is my source of joy and happiness. It will have a direct effect on me if she was sent to Nigeria. I have a full time job here in UK and I cannot leave UK for Nigeria. Apart from me, there is not anybody that can provide the care she needs. Also, there is no medical care for her needs in Nigeria. There are [counterfeit] drugs in circulation in Nigeria and I do not want fake drugs to be administered to her."
"The fact that the applicant's partner would have to change jobs is not an insurmountable obstacle and nor is the suggestion, as advanced, that there are fake drugs circulating in Nigeria which the partner does not wish the applicant to take. Were there an Article 3 claim open to the applicant, no doubt it would be made. As I understand the argument now advanced, it is that the applicant is undergoing fertility treatment in this country which she wants to continue. That is not an insurmountable obstacle to the couple going to Nigeria if they choose to do so. It is a matter for them; nobody is making a British citizen leave this country but if this couple want to enjoy family life together in this country they are only entitled to do so if they satisfy the requirements within the rules, which in this case they do not."
Mrs Evan's application for permission to appeal and an extension of time
LADY JUSTICE GLOSTER DBE:
LORD JUSTICE LONGMORE: