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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> G v Secretary of State for the Home Department (Azerbaijan) [2003] UKIAT 00155 (21 November 2003) URL: https://www.bailii.org/uk/cases/UKIAT/2003/00155.html Cite as: [2003] UKIAT 00155, [2003] UKIAT 155 |
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[2003] UKIAT 00155 G (
Azerbaijan
)
Heard at Field House on: 14 November, 2003
Prepared on: 14 November, 2003
Signed on: 19th November, 2003
Date Determination notified: 21 November 2003
Between
APPELLANT
RESPONDENT
JD
Mr. A. Mahmood, Counsel, instructed by Dicksons HMB Solicitors, appeared on behalf of the Appellant, and Mr. John Jones, a Senior Home Office Presenting Officer, appeared on behalf of the Respondent.
Azerbaijan
, appeals with the leave of the Tribunal against the decision of an Adjudicator, Mr. J. W. Miller, who in a determination promulgated on 29 April 2003, following a hearing at Bennet House on 22 April 2003, dismissed her appeal against the decision of the respondent, taken on 11th September, 2001, to direct her removal after refusing asylum.
Azerbaijan
and Russian ethnicity and of the Russian Orthodox faith. She was married to a Muslim in 1993. He sadly died in 1998 and following her husband's death, she claimed that she was mistreated by her late husband's family.
Azerbaijan
was unreasonable, and contrary to the evidence. They assert that the Adjudicator failed to consider all the considerable language and cultural difficulties which would face the Appellant's husband,
Azerbaijan
's poor human rights record and the fact that the objective evidence (US State Department report) indicated widespread societal and government discrimination against non Azeri ethnic minorities. The Adjudicator's findings that there were "no insurmountable obstacles to the Appellant making application from Baku to join her spouse in this country" was unreasonable and contrary to the evidence and it ignored the fact that the Appellant would be precluded for a period of three years from applying for entry clearance under the Immigration Rules, since her husband had only been granted exceptional leave to remain and this did not entitle his spouse or children under the age of 18 years to join him.
Azerbaijan
would offer her and her family a safe and durable place for them to pursue their family life. If, instead of them returning together to
Azerbaijan
, they were separated, then the question would be for how long they might be separated since the Appellant's husband has only been granted exceptional leave to remain, and the Appellant would not be entitled to make an application to return as a spouse until such time as her husband had indefinite leave. It was not possible to know whether that would ever happen and, if so, when. Additionally, one had to bear in mind the effect of the Appellant's removal on her children, and in particular, on Alexander, an 8 year old who arrived in the United Kingdom with the Appellant. Mr. Mahmood referred us to the Appellant's husband's statement included within her bundle. In paragraph 5, her husband had said:-
'I love my wife and children very much and I have the family that I always dreamed of. If my wife and Alexander were returned toAzerbaijan
, then my daughter would have to remain in the United Kingdom with me, and it would be very hard on us. It would severally affect my life [sic]. My wife and child would not be with me and it would be hard for me to cope. My family would be broken up'.
'My son Alexander is currently attending school in Stoke-on-Trent. He has been attending school since November 2001. He is doing well, and he is settled. He has lots of friends, and loves playing football. He dreams of becoming a footballer and playing for Manchester United. He wins lots of awards from school. It would be very hard for him to leave the UK. It was very hard for him when we first came to the UK , though even in the UK, was not safe and that he could be killed [sic]. He was very afraid and he used to have nightmares because of what happened to us inAzerbaijan
. He used to fear that someone was coming to kill him. He did not feel safe. He is very afraid of being returned to
Azerbaijan
.'
Azerbaijan
, face considerable difficulties. While it is true that in the United Kingdom the Appellant's husband faces considerable language and cultural difficulties, there is at least no widespread discrimination in the United Kingdom. He will face widespread societal and government discrimination in
Azerbaijan
. These are exceptional reasons why this Appellant should be permitted to 'queue jump' rather than be forced to leave the United Kingdom and make an application to return as the spouse of someone settled here, at some future uncertain date. It would be her husband's choice whether or not to remain and then assist his wife to re-enter at a later stage if he were able to, or whether he should go with her to
Azerbaijan
. However, submitted Mr. Mahmood, the situation in
Azerbaijan
was very poor.
Azerbaijan
controlled by ethnic Armenians and Mosques in this area that had not already been destroyed did not function. He submitted that the situation in
Azerbaijan
was poor. He acknowledged that his reference in his grounds to widespread societal and government discrimination against "non Azeri" ethnic minorities was an error on his part. The cumulative effect of the problems this family would face, namely the fact that the Appellant is a Christian woman married to a Muslim who would be regarded as a foreigner, means that her removal from the United Kingdom would be disproportionate. As an Afghan citizen he would be in difficulty.
Azerbaijan
but, given the evidence as to how other nationals suffered, it was clear that this Appellant's husband would also suffer, he submitted. The Appellant herself is from a minority religion and would face difficulties. The objective evidence clearly shows that officials discriminate against woman and Christians, and this Appellant's husband would too. It would not, in the circumstances, be unreasonable for him to decline to return to
Azerbaijan
with his wife.
Azerbaijan
. Despite the objective evidence referred to by Mr. Mahmood, the Adjudicator found that there would be no breach of the 1951 United Nations Convention on the Status of Refugees or of Articles 2 or 3 on returning the Appellant and while there was evidence to which Mr. Mahmood had referred, indicating that women still suffer discrimination and certain ethnic minorities also suffer, there was nothing to indicate that Afghani citizens suffer any discrimination. The discrimination to which this couple may be subjected did not, even when viewed cumulatively, amount to an insurmountable obstacle.
'From these decisions I have drawn the following conclusions as to the approach of the Commission and the European Court of Human Rights to the potential conflict between the respect for family life and the enforcement of immigration controls:
(i) A state has the right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations.
(ii) Article 8 does not impose on a State any general obligation to respect the choice of residence of a married couple.
(iii) Removal or exclusion of one family member from the State where the other members of the family are lawfully resident, will not necessarily infringe Article 8, provided there are no insurmountable obstacles for the family living together in the country of origin of the family members excluded, even though this involves a degree of hardship for some or all members of the family.
(iv) Article 8 is unlikely to be violated by the expulsion of a member of a family that has been long established in a State if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled.
(v) Knowledge on the part of one spouse at the time of marriage that the rights of residence of the other were precarious, militates against a finding that an order excluding the latter spouse violates Article 8.
(vi) Whether interference with family rights is justified in the interest of controlling immigration will depend on (1) The facts of the particular case and (2) The circumstances prevailing in the state whose action is impugned.'
Azerbaijan
. The Appellant's husband, is, of course, a Muslim. There is no evidence before us that he would have any difficulty at all in continuing to practise his religion. The objective evidence appears to suggest that hostility exists towards Muslim missionary activity, which partly is viewed as 'seeking to spread political Islam and thus a threat to stability and peace'. While there were reports that the Government had closed down some Muslim groups and organisations, this was allegedly because they were thought to have ties with terrorists. We noted that there were several religious groups who had reported that they had not been registered with the Government, but this had not prevented them from functioning. We accept that there may be societal discrimination against women, but they are said by the US State Department's report to enjoy the same rights as men.
Azerbaijan
with her husband, suffer any ill-treatment or discrimination on account of her own religion, on account of her being married to an Afghani citizen, or on account of her having married a Muslim, or because these cumulative facts. Neither do we believe on the evidence before us that there is any reason to think that, were he to go to
Azerbaijan
with his wife, the Appellant's husband will face any ill-treatment or discrimination on account of his being an Afghani citizen, on account of his being a Muslim married to a Christian, or because these cumulative facts, or, indeed, for any other reason.
Azerbaijan
. He will be supported by the Appellant, and, if he chooses to return with her, by his step-father. Given that he appears to have adjusted very quickly to a different culture and language in the United Kingdom, we believe that this will stand him in good stead on his return to
Azerbaijan
.
Azerbaijan
, as set out in the objective material before us, will mean that there will be some degree of hardship for the Appellant and her husband on their return to
Azerbaijan
in terms of housing and employment, but we find that there are no insurmountable obstacles to the Appellant and her husband returning to live in
Azerbaijan with their children and for all these reasons have concluded that we must dismiss this appeal.
Richard Chalkley
Vice President