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Cite as: [2005] UKAIT 00127, [2005] UKAIT 127, [2005] UKIAT 00127

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    MA (DP3/96 interpretation) Algeria [2005] UKAIT 00127


    Date of hearing: 19 May 2005

    Date Determination notified: 19 August 2005


    Mr D K Allen (Senior Immigration Judge)
    Mrs S Hussain, JP
    Mrs M E McGregor


    Secretary of State for the Home Department RESPONDENT

    For the Appellant: Mr K Behbahani, for Oaks, Solicitors
    For the Respondent: Mr G Phillips, Home Office Presenting Officer


  1. The Secretary of State was granted permission to appeal to the Immigration Appeal Tribunal against the determination of an Adjudicator, Ms P S Quigley, in which she allowed the appeal of the appellant against the Secretary of State's decision of 6 June 2003 refusing an application for further leave to remain in the United Kingdom. Following the commencement of the appeal provisions of the 2004 Act, the grant of permission takes effect as an order for reconsideration of the appellant's appeal limited to the grounds upon which permission to appeal was granted.
  2. The appellant was originally granted leave to enter the United Kingdom on 4 December 1995 for a period of 6 months as a medical visitor, and further leave to remain in the same capacity was granted until 16 April 1997. On 18 October 2001 he applied for further leave to remain in the United Kingdom as the spouse of Anna Thomson who is a person present and settled in the United Kingdom. This application was refused on 6 June 2003. On that date the appellant was sent a letter setting out the reasons for refusal and informing him that this case has been considered within guidelines for dealing with marriage applications from overstayers (a document commonly referred to as DP3/96). It was considered that his case did not fall within the criteria of DP3/96 for reasons we shall set out below. On the same date, 6 June 2003, he was served with a Form IS151A being notice to a person liable to removal, indicating that he was a person subject to administrative removal in accordance with section 10 of the Immigration and Asylum Act 1999 and that he was a person liable to be detained pending the completion of arrangements for dealing with him under the Immigration Act 1971 and that it was proposed to give directions for his removal from the United Kingdom in due course. On the same day he was served with a form IS151A Part 2 which comprises a decision to remove him from the United Kingdom and notifying him that directions would be given for his removal. A similar notice of the same date, form IS151B, was also sent to him which is in similar terms except that it sets out the available appeal rights in greater detail.
  3. The Adjudicator heard oral evidence from the appellant and from his wife and his brother. She found all the witnesses to be credible. She noted that the Secretary of State had acknowledged the marriage application by letter of 17 January 2002 and that letter referred to the application as a valid application and also said that there might be a delay in dealing with the application and referred to a possibility that it could take 6 months or more. It also asked him not to make written or telephone enquiries or turn up at the public enquiry office. In fact the next communication was the refusal of the application on 6 June 2003.
  4. The Adjudicator noted the relevant criteria set out in DP3/96. This policy arose it seems essentially as a consequence of the fact that a person such as the appellant might not be able to succeed under paragraph 284 of the Immigration Rules, under which applications can be made to remain as a spouse, because it requires that the applicant should be living in the United Kingdom lawfully, and that was not the case for the appellant. The letter of 6 June 2003 goes on to state that in recognition of the fact that the right of appeal against removal is exercisable only from abroad it was the Secretary of State's normal practice to consider such applications on an exceptional basis, and the guidelines in DP3/96 state that it will normally be appropriate to consider a grant of leave to remain, exceptionally, on the basis of a marriage if the Secretary of State is satisfied that:
  5. (i) the marriage is genuine and subsisting;

    (ii) that it pre-dates the service of an enforcement notice by at least 2 years;
    (iii) that it is unreasonable to expect the settled spouse to accompany his/her spouse on removal.

  6. The letter then goes on to state that the appellant's case does not fall within the general rule, and reference is made to the fact that in his case his marriage on 25 August 2001 did not pre-date by 2 years the commencement of enforcement action and would not normally be grounds for allowing him to remain. The Secretary of State had considered the relevant compassionate circumstances but assessed them as not being such as to justify a concession on the grounds of the marriage. It was considered that it would be reasonable to expect both parties to have been aware of the appellant's precarious immigration status such that the subsistence of their marriage in the United Kingdom would from the outset be uncertain, and it was also believed that the appellant's wife, although a British citizen, could reasonably be expected to live in Algeria. It was therefore concluded that removal would not be disproportionate to the appellant's Article 8 rights.
  7. The Adjudicator went on to note paragraph 5(iii) of DP3/96. This contains a definition of the term "Commencement of Enforcement Action". This is to be taken as either:
  8. (a) a specific instruction to leave with a warning of liability to deportation if the subject fails to do so; or

    (b) service of a notice of intention to deport or service of illegal entry papers (including the service of papers during the previous stay in the United Kingdom where the subject has been returned illegally); or

    (c) a recommendation by a Court that the person should be deported following a conviction.

  9. At paragraph 30 of her determination the Adjudicator concluded that none of the papers served on the appellant could be said to comprise commencement of enforcement action as defined in this paragraph. She considered that if and when enforcement action was taken in the future the appellant would have satisfied the requirement of having lived with his wife in the United Kingdom continuously since marriage for at least 2 years and therefore did not accept the interpretation of DP3/96 that was argued by the Presenting Officer who appeared before her.
  10. Nor did the Adjudicator consider that the assessment of proportionality was a proper one. She bore in mind such factors as the acknowledgement that the application was valid that was made in the letter of 17 January 2002 and the inconsistency as she saw it between that and the refusal of the application a year and a half later, considering that the delay in making clear to him that his marriage application could not succeed was relevant to proportionality. She also bore in mind that he has an eye condition for which the prospects of proper treatment on return to Algeria would not be good and the fact that Foreign and Commonwealth Office travel advice counselled against all non-essential travel to Algeria. She noted objective evidence concerning medical facilities in Algeria and, bearing in mind the security threat in Algeria considered that removal would be disproportionate. She therefore allowed the appeal under Article 8 and also allowed the appeal under the Immigration Rules.
  11. In his grounds of appeal the Secretary of State contends firstly that the reasoning on proportionality on the part of the Adjudicator is inadequate and that established authority had not been followed. It is also argued that the allowing of the appeal under the Immigration Rules is inadequately reasoned and that the Adjudicator erred in her interpretation of the Home Office marriage policy DP3/96. It is also contended that the finding of the Adjudicator in paragraph 44 that the appeal was allowed on the basis of a real risk or breach of his protected human rights did not identify which human rights were in issue.
  12. At the hearing before us Mr Behbahani indicated that his understanding was that entry clearance applications could not be made from Algeria at present for cases such as the appellant's. We invited both representatives to investigate the matter, and we are grateful to them both for speedily obtaining relevant information in this regard. It would appear that a number of categories of application can be made by post to a given address in Algeria but the evidence is unclear as to whether marriage applications such as the appellant's could be, were he to be required to return. Certainly marriage is not one of the categories mentioned as being one where postal applications can be made in the way set out. It is said that all other individual visa applications have to be submitted to the British Embassy in Tunis. It is unclear whether such applications can be made by post or whether the application must be made in person.
  13. In his submissions Mr Phillips argued that the Adjudicator clearly erred in law in that she had no power to allow the appeal under the Immigration Rules and should rather have directed the Secretary of State to revisit the particular refusal under DP3/96 and reconsider the matter. He argued that in any event however, her approach was flawed. The notices that had been served conformed to the requirements of paragraph 5 of DP3/96 and she had interpreted them improperly.
  14. As regards the Article 8 findings these were flawed. Return would not be disproportionate and it would not be unduly harsh for him to go back and make an application for entry clearance either with his wife returning with him or on his own. Clearly he could apply in Tunis. It was only a day away from Algeria by road or public transport and it was quicker still by air.
  15. In his submissions Mr Behbahani referred us to his skeleton argument. It was clear that DP3/96 was mainly focused on illegal entry and deportation cases. If the Secretary of State was relying on a non directly applicable policy document then that was not the appellant's fault. The Secretary of State was simply re-arguing his views on proportionality and there was no material error of law. The relevant notices employed were not notices to deport or notices to illegal entrants. Removal and deportation were different.
  16. Mr Behbahani was not, he said, to be understood as saying that the policy did not apply to the appellant but the point concerning the stopping of the clock had not had the effect that the Secretary of State contended for it. A relevant notice would for example, have to say it was a notice of intention to deport and it was the case by now that the appellant qualified, having satisfied all the immigration rules requirements except the one to which the policy applied. As regards returns there was a risk of real problems. Algeria was paranoid about its borders and there could be bureaucratic obstacles to land travel. Also there was the issue of his health problems. It was likely, given that it was an application for settlement, that he would be required to be interviewed. Nothing had been put before the Tribunal to clarify what the procedure would be and what complexities needed to be taken into account and this was likely to be problematic. It should be questioned whether it was proportionate given how long he had been in the United Kingdom and had satisfied all other aspects of the rules. The Tribunal was referred to relevant paragraphs in the recent determination in MB [2005] UKIAT 00092.
  17. As regards the point concerning the January 2001 letter, Mr Behbahani's understanding was that it was that the application was described as being in the prescribed form and the rules allowed the making of such an application. The Tribunal should however agree with the Adjudicator that the Secretary of State was then using standard reasons for refusal and it was misleading to say that it was valid and the delay could have been ended then and the appellant could have perhaps gone back and made an application. It supported the overall conclusion that the Adjudicator's reasoning in this regard and her conclusions were sustainable. There was no material error of law.
  18. Mr Phillips had no points to make by way of reply.
  19. We raised with the representatives, whether, if we were against Mr Behbahani, they had any submissions to make as to whether it would be appropriate for us to determine the matter ourselves if we found there was a material error of law. Mr Behbahani's only concern on this was that it might be appropriate for the opportunity to be provided for further evidence to be given as to the practical difficulties that might exist on return and the making of an application. We stated that we would bear this in mind in our consideration as to whether the matter would need to be reconsidered or whether we could deal with it ourselves.
  20. It is, we think, common ground that the Adjudicator erred in allowing the appeal under the Immigration Rules. The point is rightly made in the refusal letter of 6 June 2003 that one of the requirements of paragraph 284 of the Immigration Rules which deals with requirements of an extension of stay of the spouse of a person present and settled in the United Kingdom is that the applicant has limited leave to enter or remain in the United Kingdom. It is clear that the appellant did not have such leave and as a consequence he could not come within the requirements of paragraph 284. As the letter goes on to note, it was possible that he could come within the terms of the guidelines set out in DP3/96, but, as we have seen, it was concluded that he did not come within those terms. The decision by the Adjudicator that the Secretary of State was wrong in this regard in no sense justified the finding that the appeal could be allowed under the Immigration Rules. At most, it could be argued that it was open to her to find that the Secretary of State needed to reconsider the matter, applying DP3/96 in accordance with her interpretation in order to make a decision that would be in accordance with the law.
  21. As Mr Behbahani pointed out however, it is not the case that there is a precise overlap between success under DP3/96 and Article 8 or failure under both. This is for the reason identified above, that a successful appeal in relation to the DP3/96 point would lead to no more than reconsideration by the Secretary of State, whereas a successful appeal under Article 8 would have the effect on the appellant of not being required to leave the United Kingdom.
  22. In many ways this appeal turns upon the proper approach to a document such as DP3/96 as a matter of interpretation. The Adjudicator clearly took an approach involving strict construction of the terminology employed in the definition of "commencement of enforcement action" as can be seen in paragraph 30 of the determination. The three definitions to be found at paragraph 3(iii) of DP3/96 are clearly alternatives, and it would seem that the one of particular relevance to this case is sub-paragraph (a), which we have set out above.
  23. We do not consider that it is appropriate to regard such a document as if it were the equivalent of a statute or a statutory instrument. The document is rightly described at page 1 as providing guidance in general terms in relation to particular categories of case, and those specified are persons liable to be removed as illegal entrants or deported who have married a person settled in the United Kingdom. At one stage it seemed that Mr Behbahani was going to argue that the document would not apply to the appellant since he was not a person who was liable to be removed as an illegal entrant (since he entered the country lawfully) or a person who is to be deported, but that would of course have had the effect of there being no immigration rule or policy within which the appellant could fall, and no doubt wisely Mr Behbahani did not argue that the document did not apply but rather suggested that its wording was inapt to describe the situation of the appellant.
  24. In our view this further reinforces the need to avoid a strict or literal approach to the interpretation of such a document. If the policy applies to the appellant, albeit that he is not an illegal entrant, nor is it proposed that he be deported, it is illustrative of a purposive approach to the interpretation of the policy as opposed to the strict construction approach adopted by the Adjudicator, which is also consistent with the aim of the policy, to provide general guidance.
  25. When one looks at the wording of IS151A, IS151A Part 2 and IS151B, it is in our view sufficiently clear that the purport of those documents is entirely consistent with the concept of commencement of enforcement action, albeit not within the specific terms set out at paragraph 5(iii)(a) of DP3/96. It is clear for example, from IS151A Part 2 that a decision has been taken to remove the appellant from the United Kingdom. The implication must clearly be that if he does not leave voluntarily he will be removed. The use of the word "deportation" should not in our view be taken to be purely a reference to the technical process of deportation, but rather more broadly to the process of removal of a person who in this case was subject to administrative removal in accordance with Section 10 of the Immigration and Asylum Act 1999 as set out in IS151A.
  26. One of the points made by Mr Behbahani in his skeleton argument is that the Adjudicator was entitled to come to the conclusion that she did on her interpretation of this document and there would be no error of law in her interpreting it in the way that she did. However, the Adjudicator acknowledged that the couple had not been living together for 2 years at the time when the application was refused and the notices were served on 6 June 2003, (in the letter of that date the Secretary of State, inter alia noted that the appellant's marriage did not pre-date the service of notice of liability to removal, and concluded that there were insufficient compassionate circumstances to justify a concession on the grounds of the marriage) and we do not consider that even a purposive approach to the interpretation of DP3/96 can properly ignore the criterion that the couple should have been living together for at least 2 years before the commencement of enforcement action. It follows that, given that we have concluded that the Adjudicator's approach to the issue of "commencement of enforcement action" was flawed, she materially erred in concluding that the policy was not applicable to the appellant's case. We have in any event already found that there is a material flaw in her determination, and we also consider that it is proper to substitute our conclusion for hers in concluding that the Secretary of State was right to regard the case as not falling within the Immigration Rules, and, given the facts of the case, the policy cannot assist the appellant, because the couple had not been living together for at least 2 years prior to the commencement of enforcement action.
  27. That has clear implications for the remaining issue. That is the question of Article 8. In this regard Mr Behbahani took us to the determination of the Tribunal in MB to which we have referred above. This was a case in which the Tribunal took the opportunity to consider the recent decision of the Court of Appeal in Huang [2005] EWCA Civ 105. At paragraph 28 the Tribunal noted with regard to the issue of delay that it is the effects of delay to which an Adjudicator should look rather than to the fact or extent of delay itself, and went on to comment that delay by itself would not so much rarely be determinative as rarely ever significant.
  28. The Tribunal went on to state that in holding that the Immigration Rules are to be regarded as the proportionate response of the executive, approved by Parliament to the many and varied circumstances which individual immigration cases present, the Court of Appeal must also have had regard to the way in which those rules are also supplemented by policies or extra-statutory concessions. We interpolate that that is clearly relevant to the appeal before us where we are concerned with such a policy. The Tribunal went on to note that such a policy offers a further guide as to what is the proportionate response of the executive. The Tribunal also stated, at paragraph 32, that where a rule or statutory provision covers the sort of circumstance upon which an individual relies, e.g entry for marriage, entry for study, medical treatment or delayed decision making, but the individual falls outside the specific requirements or limits of the otherwise applicable rules or policy, that is a very clear indication that removal is proportionate. It is said that it is not for the judicial decision maker, except in the clear and truly exceptional case to set aside the limitations set by the executive, accountable to Parliament, and, in the case of the Immigration Rules, approved by Parliament.
  29. These points have clear significance to this appeal. We have concluded that the appeal comes neither within the terms of the existing immigration rule nor, for the reasons we have set out, an existing policy. The Secretary of State was right to apply DP3/96 but to conclude that the appellant did not meet its criteria. A case must be clearly and truly exceptional for us to depart from the manifestations of the proportionate response of the executive as set out, specifically in this case, in paragraph 284 of HC 395 and in DP3/96. We do not consider that it can properly be said that the circumstances of this case are such as to amount to a truly exceptional case. In this regard we have borne in mind the point made by Mr Bebahani at the end of submissions concerning the possible desirability of further evidence. We do not consider upon reflection however, that it would be appropriate for us simply in this case to declare there to be a material error of law and for the matter then to be reconsidered by us or a different panel of the AIT in due course. Issues such as the difficulty that might be experienced by the appellant in making an entry clearance application from Tunis are matters that could have been anticipated and raised in submissions before us. We do not consider that the onus is on the Secretary of State in this situation to show that there would not be difficulties, but rather the onus was on the appellant before the Adjudicator to show that there would be.
  30. We bear in mind the point of delay that Mr Behbahani referred us to, but we do not see as at all significant in this case the effects of delay as referred to by the Tribunal at paragraph 28 in MB. It may be that had he known how the marriage application would be treated, the appellant would have availed himself earlier of the opportunity to depart and make an entry clearance application, but that is an unknown and in any event does not appear to us to be a matter of material significance. We bear in mind his medical circumstances, but those fall well short of being exceptional, as does the situation in Algeria with the elements of political uncertainty and unrest which were touched upon before us. Neither separately nor cumulatively do we consider that these matters can properly be characterised as being exceptional let alone truly exceptional as they were described as having to be by the Tribunal in MB. We have therefore concluded that the Adjudicator materially erred in law in allowing the appeal under Article 8.
  31. In conclusion therefore we have determined that the Adjudicator materially erred in law both as regards her decision on the Immigration Rules and her decision on Article 8. We have reconsidered these matters as set out above, and substitute her decision with the following decision. The appellant's appeal in respect of the Immigration Rules is dismissed.
  32. The appeal is dismissed on human rights grounds.
  33. D K Allen

    Senior Immigration Judge

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