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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> SM & Ors (Entry Clearance, proportionality) Afghanistan CG [2007] UKAIT 00010 (02 January 2007) URL: http://www.bailii.org/uk/cases/UKIAT/2007/00010.html Cite as: [2007] UKAIT 10, [2007] UKAIT 00010 |
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SM and others (Entry Clearance, proportionality) Afghanistan CG [2007] UKAIT 00010
Date of hearing: 11 August & 10 November 2006
Date Determination notified: 02 January 2007
SM AS MS |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
There are no facilities for Afghan nationals to obtain entry clearances from Afghanistan or elsewhere. Where an appellant meets all the relevant requirements under the immigration rule and but for the absence of entry clearance he would qualify and the respondent cannot show that it is practicable for him to obtain entry clearance, the claim may succeed under Article 8 if the appellant shows, or (as in this case) the respondent conceded, that entry clearance cannot in practice be obtained because of the lack of accessible facilities.
Background:
Relevant Facts in SM:
Relevant Facts in AS
Relevant Facts in MS:
The Hearing:
The Law:
"Everyone has the right to respect for his private and family life, his home and his correspondence."
"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and feeedoms of others."
"Ms Sigley endeavoured to deal with the second point as to the ability of the Appellant to travel to Amman by reference to the burden of proof which she said lay upon him to make out his case. We do not accept the way she put it. We accept that it is for the Appellant to show that Article 8 is engaged and that the action of the Secretary of State would interfere with it. The Secretary of state then shows that the interference is lawful and is in pursuance of the interests of immigration control. It is then for the Appellant to show that the interference is disproportionate to that interest."
Mr Deller confirmed that the decision of the IAT in EH had not been appealed and represented good law.
In Chengjie Miao v SSHD [2006] EWCA Civ 75, Lord Justice Sedley after citing Article 8 (1) and (2) of the ECHR said in Paragraph 9 of his decision:
"The Immigration judge, having found that the first paragraph of the article was engaged, set out a series of consequential questions. Uncontentiously, he found that removal would interfere with the appellant's family life to an extent which would necessarily engage article 8. He held, again, uncontentiously, that any such removal would be in accordance with the law. He then posed the following two questions:
- Is the interference necessary in a democratic society for the prevention of disorder or crime?
- If so, is the interference with the right of the appellant to respect for family life and private life posed by the decision under appeal proportionate to the legitimate end sought to be achieved?.
In Paragraph 10, Lord Justice Sedley said, "This approach over-elaborates the issue arising under art. 8(2). Once the article is engaged by a substantial but lawful derogation from the respect due to family life, the remaining question is whether the impugned act is necessary in a democratic society for one of the purposes specified in the Convention. The specified purposes relevant to immigration control are ordinarily the economic well-being of the country and the protection of the rights and freedoms of others. (Disorder and crime are more likely to matter in deportation cases). But the Strasbourg court has wisely avoided the making of political judgments about what democratic societies should and should not be doing by using the concept of proportionality as a surrogate: a democratic society does not use its lawful powers so as to interfere disproportionately with individuals' human rights. It is by this means that proportionality enters art 8 (2)."
In Paragraph 11 he said, "It follows that the first of the immigration judge's two final questions was unnecessary, partly because it postulated the wrong Convention purposes but mainly because it raised no issue that was not raised in the final question."
Paragraph 12 of the decision states, "The latter question was described by immigration judge as involving 'the balancing exercise which is the essence of proportionality' requiring him to 'accord due weight to competing interests'. This may be right as far as it goes, but it is not all. The assessment of proportionality is not a simple weighing of two cases against each other. It arises only when the claimant has established that he enjoys a protected right which is threatened with violation: at that point the burden shifts to the state not only to show that the step is lawful but that its objective is sufficiently important to justify limiting a basic right; that it is sensibly directed to that objective, and that it does not impair the right more than is necessary. The last of these criteria commonly requires an appraisal of the relative importance of the state's objective and the impact of the measure on the individual. When you have answered such questions you have struck the balance."
i. Entry Clearance must always be obtained prior to travel to the UK. Applications for entry clearance from individuals of any nationality cannot be submitted while the applicant is in the United Kingdom.
ii. Even where applications can be made online or via a courier, the applicant should be in the country where the application is lodged, as they may be called for an interview at the Visa Section at short notice.
iii. Entry Clearance applications (including those for settlement) are currently not accepted by the British Embassy in Kabul.
iv. Islamabad has been designated the relevant visa section for applications from Afghanistan. There are no specific Entry Clearance Officers designated to assess applications made by Afghan nationals.
v. The Governments of Pakistan and Afghanistan do not allow passports to be sent across international borders.
vi. Applications from Afghanistan should be submitted through Gerry's FedEx office in Peshawar.
vii. Applicants do not have to submit the application form themselves, but unless there are compelling circumstances that dictate otherwise, applicants should collect their passports in person.
viii. Afghan Express Ltd represents FedEx in Afghanistan but due to constraints on sending passports across the border they do not accept applications for visas for the UK.
ix. If an Afghan national is normally and legally resident outside of Afghanistan, they can apply for entry clearance in their country of residence.
No assertion is made in this letter that Afghan nationals seeking entry clearance for settlement in the United Kingdom who are returned to Afghanistan can apply in Dubai or New Delhi, India. The only designated post according to the letter is Islamabad in Pakistan.
(i) There are no facilities for issue of entry clearances in Afghanistan.
(ii) Afghan nationals resident in Afghanistan who wish to apply for entry clearances will have to travel to Peshawar, Pakistan to make the application and deposit the same with FedEx.
(iii) The applicants will have to remain in Pakistan until such time as their applications are considered.
(iv) The applicants may be called for interview in which case they will need to present themselves before the entry clearance staff in Islamabad.
(v) No indication is given as to the length of time it may take for applications for entry clearances for settlement by Afghan nationals is given.
(vi) With regard to the safety of travel between the two countries the letter states, "We cannot comment on whether it is safe for an applicant to travel to the British High Commission in Islamabad from Afghanistan and how much it would cost."
Findings & Conclusions:
Senior Immigration Judge Drabu
1. United Nations, The Situation in Afghanistan and its implications for peace and security dated 11/09/2006
2. Five Years after their removal from power: Taliban are back – Senlis Council News Release 5 September 2006.
3. Afghanistan: Five years later by Stephen Zunes, 13 October 2006. FPIF
Policy Report
4. British High Commission, Islamabad Travel Advice of Afghanistan – 30 October 2006
5. UK Visas – British Embassy P O Box 65, Dubai, United Arab Emirates – 10 October 2006
6. UK Visas, King Charles Street, London – Letter from Deputy Head Customer Services of 10 October 2006.