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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> JF (Article 8: inconsistency, family members) Angola [2005] UKAIT 00173 (08 December 2005) URL: https://www.bailii.org/uk/cases/UKIAT/2005/00173.html Cite as: [2005] UKIAT 00173, [2005] UKAIT 00173, [2005] UKAIT 173 |
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JF (Article 8: inconsistency, family members)
Angola
[2005] UKAIT 00173
Date of hearing: 30.11.2005
Date Determination notified: 08 December 2005
John Freeman (a senior immigration judge)
Mr P Rogers JP and
| JF |
APPELLANT |
| and |
|
| Secretary of State for the Home Department | RESPONDENT |
This case is reported on the following points:
a) has what was said in Edore [2003] EWCA Civ 716 and DM (Croatia) CG* [2004] UKIAT 00024 about the effect of inconsistency as between family members survived Huang [2005] EWCA Civ 105? (see 3)
b) in what circumstances may such inconsistency make for such "truly exceptional" circumstances in the appellant's private or family life as would render removal disproportionate to the legitimate purpose of immigration control?
Angola
. Under the transitional provisions of the 2004 Act, the case proceeds as if it were a reconsideration following review by the Asylum and Immigration Tribunal; but only (see r. 62.7 of the 2005 Procedure Rules) on the grounds on which permission was given. These were limited to the question, not considered by the adjudicator in these terms, of whether the Secretary of State had acted so inconsistently in granting the appellant's wife (as she now is) exceptional leave to remain, and deciding to remove him, as to make the decision under appeal contrary to law.
| 03.1999 | appellant and wife (Francisca) meet in Angola![]() |
| 03.2000 | appellant and wife move in together |
| 28.11.2002 | wife arrives here and claims asylum |
| 09.01.2003 | wife granted four years' exceptional leave to remain |
| 02.03.2003 | wife gives birth to daughter by appellant (Grace), later given exceptional leave to remain in line with her mother |
| 23.04.2003 | appellant arrives with niece (Jurelma, born about 1999), with whom he claims to have been on the run since January |
| 28.04.2003 | appellant claims asylum: niece treated as dependant |
| 19.09.2003 | appellant and Francisca marry |
| 09.07.2004 | Secretary of State decides to remove appellant |
Angola
with him had not been challenged before us, and remained valid; so that, if the adjudicator's failure to consider the inconsistency point was an error of law, it was not a material one.
a) they do so in their country of origin, where that is open to them; or
b) the spouse with no current leave to remain in this country return there to apply for a visa (where required) in the ordinary way.
In other words, there is nothing so "truly exceptional" in the state of affairs of one spouse having exceptional leave to remain here, and the other being subject to removal, as to make the removal decision disproportionate in itself. There is no evidence in this case that the wife, having accepted exceptional leave to remain only, cannot return to
Angola
; and the adjudicator would have been fully entitled to find that the appellant could go back there and get a visa himself, subject to the operation of Home Office policy on persons with exceptional leave to remain calling their family members: the appellant was refused permission to appeal against the adjudicator's dismissal of his asylum/article 3 grounds.
Angola to pursue their family life there. If they so wished, no doubt the appellant himself could go back and apply for a family reunion visa in due course himself; but the adjudicator did not base his decision on that, and neither shall we ours.
The original Tribunal did not make a material error of law and the original determination of the Appeal stands.
John Freeman
approved for electronic distribution