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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> BP (DP3/96, Unmarried Partners) Macedonia [2008] UKAIT 00045 (28 February 2008) URL: https://www.bailii.org/uk/cases/UKIAT/2008/00045.html Cite as: [2008] UKAIT 45, [2008] UKAIT 00045 |
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BP (DP3/96 Unmarried Partners) Macedonia [2008] UKAIT 00045
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 7 June 2007
Date Determination notified: 28 February 2008
Before
SENIOR IMMIGRATION JUDGE LATTER
Between
BP | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
DETERMINATION AND REASONS
1. DP3/96 which along with DP2/93 was revoked on 24 April 2008 applies to married persons only. It is a policy in the form of casework instructions that identify factors covering marriage and children which must be considered before removal action is initiated or enforced and it is not as such a leave-conferring policy.
2.it may be that by virtue of a ministerial statement made to Parliament on 16 June 1999, the Home Office policy on enforcement action in the case of married persons (as expressed in DP3/96) was complemented by a parallel concession relating to persons in a relationship akin to marriage. Applying as it does to unmarried, cohabiting persons prior to the initiation of enforcement action, it is not to be confused with the Unmarried partners concession or with the Immigration Rules paras 259A-0 (both of which only apply to persons with valid leave).
3. Applying a common sense approach to chapter 36.4 of the Operational Enforcement Manual dealing with common-law relationships (as Home Office caseworkers are expected to do) a person can show he or she has met the requirement of 2 years in a relationship akin to marriage even if for part of that period the couple were married.
"state that it will normally be appropriate to consider granting leave to remain, exceptionally, on the basis of a marriage if we are satisfied that:
i. the marriage is genuine and subsisting; and
ii. that it pre-dates the services of an enforcement notice by at least two years; and
iii. that it is unreasonable to expect the settled spouse to accompany his/her spouse on removal."
"Notwithstanding the general policy we have considered whether it would be right to allow your client to remain but having considered all the circumstances of her particular case it is concluded that there are insufficient compassionate circumstances to justify a concession on the grounds of marriage. It is considered that it would be reasonable to expect both parties to have been aware that [the appellant's] precarious immigration status was such that the persistence of their marriage within the United Kingdom would, from the outset, be uncertain. Moreover, although [her] spouse is a British citizen we believe that [he] could reasonably be expected to live in Macedonia."
"I am not impressed by the reasons for delay in lodging this application. The decision of the Immigration Judge was harsh, but, if he correctly construed DP3/96, was not erroneous in law. The appellant had lived with her husband since early March 2003 and so if cohabitation rather than the date of marriage was the relevant test, she would have qualified. There had been undue delay by the respondent and the appellant was not well served by her solicitors. Equally there is no doubt that her husband would not go to live with her in Macedonia contrary to the views expressed in the refusal letter. Whether it was reasonable to believe he would visit her there is open to question. She has undoubtedly abused the immigration laws, but that is not necessarily fatal. Mr Macdonald QC suggests the policy was not fully explained and properly applied "
"It has been decided that, in order to demonstrate a commitment akin to marriage, it is not necessary to demonstrate a prior cohabitation period of four years, and the prior cohabitation period has, therefore, been changed to two years. The probationary period before settlement may be granted has been increased to two years, which means that there will be a four year cohabitation period before the grant of settlement. Where applicable, these new arrangements will be taken into account when deciding whether or not to initiate enforcement action. The other provisions of the concession remain unchanged".
"In reaching his decision to refuse leave to remain, the Secretary of State referred to DP3/96 but failed to refer to or to take into account the policy changes indicated by the Minister's said reply as a result of the concessions and later rule changes putting co-habitation by couples on a par with marriage, and has thereby acted unreasonably and not in accordance with the law (see Khan v Immigration Appeal Tribunal [1984] 1 WLR 1337; [1984] Imm AR 68, CA)."
"Where a person makes representations after the commencement of enforcement action on the basis of a common law or some same sex relationship the normal course will be to proceed to enforcement action unless it is clear that the couple have lived together for 2 years or more before enforcement action commenced and that the parties are not involved in a consanguineous relationship with one another."
Relevant materials
DP3/96
"Introduction
1. This notice provides guidance, in general terms on the consideration of cases of those persons liable to be removed as illegal entrants or deported who have married a person and settled in the United Kingdom. This notice supersedes DP2/93 which is hereby cancelled, subject to the transitional provisions set out in paragraph 10 of this instruction. Deportation cases fall to be considered within the framework of the Immigration Rules and the attached guidance should be read in conjunction in with those rules. Although illegal entry cases are considered outside the Rules, any relevant compassionate circumstances, including those referred to below, should be considered before a decision to remove is taken.
Policy
2. Paragraph 364 of the Immigration Rules explains that deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained here without authority but that all the known relevant factors must be taken into account before a decision is reached. These include:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connection with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence;
(vii) compassionate circumstances;
(viii) any representations.
3. Where persons do not qualify for leave to remain under the Immigration Rules and are to be considered for deportation or whether they are illegal entrants liable to removal, but seek nevertheless to remain on the basis of marriage in the United Kingdom, the following paragraphs of this guidance apply.
4. Where enforcement action is under consideration and the offender is married to someone settled here a judgment will need to be reached on the weight to be attached the marriage as a compassionate factor. Caseworkers should bear in mind that paragraph 284 of the Immigration Rules which sets out the requirements to be met for an extension of stay as the spouse of a person present and settled in the United Kingdom. specifically requires, amongst other things, a person to have limited leave to remain here and to have not remained here in breach of the immigration on laws, in order to obtain leave to remain on that basis. Therefore, the fact that an offender is married to a person setlted here does not give him/her any right to remain under the Rules.
Marriages that predate enforcement action
5. As a general rule, deportation action under 3(5)(a) or 3(5)(b) in (non-criminal cases) or illegal entry actions should not normally be initiated in the following circumstances (but see notes below):
(a) where the subject has a genuine and subsisting marriage with someone settled here and the couple have lived together in this country continuously since their marriage for at least 2 years before the commencement of enforcement action;
and
(b) it is unreasonable to expect the settled spouse to accompany his/her spouse on removal.
Notes
(i) in this instruction, "settled" refers to British citizens who live in the United Kingdom or to other nationals who have ILE or ILR here.
(ii) in considering whether or not, under paragraph 5(b) above, it would be unreasonable for a settled spouse to remain the subject of enforcement action on removal the onus remains with the settled spouse to make out a case with supporting evidence as to why it is unreasonable for him/her to live outside the United Kingdom. Factors which caseworkers should take into account if they are made known to them, will include whether the United Kingdom settled spouse:
(a) has very strong and close family ties in the United Kingdom such as older children from a previous relationship that form part of the family unit; or
(b) has been settled and living in the United Kingdom for at least the preceding 10 years; or
(c) suffers from ill health and medical evidence conclusively shows that his/her life would be significantly impaired or endangered if he/she were to accompany his/her spouse on removal.
(iii) In this instruction commencement of enforcement action is to be taken as either:
(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 or illegal entry papers (including the service of papers during a previous stay in the United Kingdom were the subject has returned illegally); or
(c) a recommendation by a court that a person should be deported following a conviction.
(iv) The commencement of the enforcement action "stops the clock" in terms of the 2 year qualifying period referred to in paragraph 5(a) above in which a marriage must have subsisted. No further time can then be accrued to meet this criterion, e.g. whilst making representations, appealing against the decision or applying for judicial review.
(v) This notice contains guidance as to the approach to be adopted in the generality of cases but it must be remembered that each case is to be decided on its individual merits and, for instance, a particularly poor immigration history may warrant the offender's enforced departure from the UK notwithstanding the factors referred to above.
Criminal convictions
6. In cases where someone is liable to immigration control has family ties here which would normally benefit him/her under paragraph 4 above but has criminal convictions, the severity of the offence should be balanced against the stength of family ties. Serious crimes which are punishable with imprisonment or a series of lesser crimes which show a propensity to re-offend, would normally outweigh the family ties. A very poor immigration history may also be taken into account. Caseworkers must use their judgment to decide what is reasonable in any individual case.
Children
7. The presence of children with the right of abode in the UK (see note below) is a factor to be taken into account. In cases involving children who have the right to abode, the crucial question is whether it is reasonable for the child to accompany his/her parents abroad. Factors to be considered include:
(a) the age of the child (in most cases a child of 10 or younger could reasonably be expected to adapt to life abroad);
(b) serious ill-health for which treatment is not available in the country to which the family is going.
Note
(i) Children will have the right to abode must commonly as a result of having been born in the United Kingdom to a parent settled here. It should be noted that under the British Nationality Act 1981 an illegitimate child born in the United Kingdom obtains British citizenship only if the mother is a British citizen or is settled in the United Kingdom. Under the 1981 Act the status of the father of a child born illegitimate has no bearing on the nationality of the child unless she subsequently marries the mother and thus legitimises the child.
Marriages that postdate enforcement action
8. Where the person marries after the commencement of enforcement action removal should normally be enforced. The criteria set out in paragraph 5 do not apply in such cases. Paragraph 284 of the Immigration Rules makes it clear that one of the requirements for an extension of stay as the spouse of a person present and settled in the United Kingdom is that "the marriage has not taken place after a decision has been made to deport the applicant or he has been recommended for deportation or has been given notice under Section 6(2P of the Immigration Act 1971". Marriage cannot therefore in itself be considered a sufficiently compassionate factor to militate against removal. Detailed enquiries in order to ascertain whether the marriage is genuine and subsisting should not normally be undertaken. The onus is on the subject to put forward any compelling compassionate factors that he/she wishes to be considered which must be supported by documentary evidence. Only in the most exceptional circumstances should removal action be stopped and the person allowed to stay.
Marriage to European Economic Area (EEA nationals)
9. Any foreign national who contracts a marriage to an EEA national should have his/her case considered in the first instance by EC group, B6 to whom the case must be referred, irrespective of whether the marriage took place before or after the initiation of enforcement action.
Transitional arrangements
10. This instruction will not apply retrospectively. It has immediate effect in cases where the marriage came to the notice of the Immigration and Nationality Department after 13 March 1996 irrespective of the date on which the marriage took place. case where the marriage came to notice on or prior to 13 March 1996 should be considered under the terms of DP2/93.
Enquiries
11. Any enquiries about this instruction should be addressed to the Enforcement Policy Group in Room 301, Apollo House (Ext. 8408/8409).
Enforcement Policy Group
13 March 1996"
Unmarried partners concession
Immigration Rules paras 259A-0
The 16 June 1999 concession on relationships akin to marriage
"It has been decided that, in order to demonstrate a commitment akin to marriage, it is not necessary to demonstrate a prior cohabitation period of four years, and the prior cohabitation period has, therefore, been changed to two years. The probationary period before settlement may be granted has been increased to two years, which means that there will be a four year cohabitation period before the grant of settlement. Where applicable, these new arrangements will be taken into account when deciding whether or not to initiate enforcement action. The other provisions of the concession remain unchanged".
Home Office policy instructions
(a) Instructions concerning DP3/96 in marriage cases
"Marriage to a British citizen or a person settled here
The policy guidelines DP3/96 for such marriages came into force on 13 March 1996 (see 36.3.2). Unlike the previous policy, DP2/93, it does not provide for the consideration of common-law relationships akin to marriage".
(b) Instructions on unmarried partners
"36.4 Common-law relationships
Marriage policy in DP2/93 applied equally to common-law relationships akin to marriage. Any common-law relationship that was brought to the notice of the Department on or before 13 March 1996 should be considered under policy DP2/93 (see 36.3 and 36.3.1). Its successor, DP3/96, did not extend consideration to common-law relationships akin to marriage and such relationships, if they came to notice after 13 March 1996, no longer availed offenders."
"36.4.1 Procedures when dealing with an offender who is the unmarried partner of a person present and settled in the UK
Enforcement action should not normally be initiated in the following circumstances:
Where the subject has a genuine and subsisting relationship akin to marriage with a person present and settled in the United Kingdom and the couple have lived together in this country for at least two years before the commencement of enforcement action
and
any previous marriage (or similar relationship) by either partners has permanently broken down
and
it is unreasonable to expect the settled partner to accompany the subject on removal
and
the couple are not involved in a consanguineous relationship with one another.
Where a person makes representations after the commencement of enforcement action, on the basis of a common-law or same sex relationship, the normal course will be to proceed to enforcement action unless it is clear that the couple had lived together for 2 years or more before the enforcement action commenced and that the parties are not involved in a consanguineous relationship with one another.
As with cases involving marriage any compelling or compassionate circumstances advanced by the couple must be considered. Similarly, the commencement of enforcement action "stops the clock" in terms of the two-year qualifying period (see 36.3.2)."
Case-law
"DP3/96 is badly drafted I hope that the Home Office will look again at the terms of DP3/96, if only for clarity's sake".
and that in AB (Jamaica) Sedley LJ noted that its having been drawn up prior to the Human Rights Act has caused difficulties since October 2000 in operating it in tandem with a human rights jurisdiction.
"Most of these enforcement cases fall to be considered under either the unmarried partner's provision or DP3/96. However, there are rare occasions where the individual may fall into both policies. This is where they have cohabited before entering into marriage for part of the two year relationship requirement. This combination of two years cohabitation must have occurred prior to the service of enforcement papers.
Although there are no instructions for caseworkers to follow when dealing with these rare cases, we would expect a common sense approach to be applied by caseworkers where a subsisting relationship of two years or more through a combined cohabitation has been identified. However, each case must be considered on its individual merits. "
Direction
Signed Date
Senior Immigration Judge Storey