Heard  at  Field  House 				[2003] UKIAT 00078 G (Algeria)
On 	    4 August 2003
Written    5 August 2003

IMMIGRATION APPEAL TRIBUNAL
	
Date Determination Notified

								. . . . . . . . . . . .19/08/03 . . . . . . . . . . . 	

Before

 Mr S L Batiste (Chairman)
Mr P R Lane

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

Respondent

DETERMINATION  AND REASONS
 					  	
1.	The Appellant, a citizen of Algeria, appeals, with leave, against the determination of an Adjudicator, Ms S Beg, dismissing his appeal against the decision of the Respondent on 27 December 2001  to refuse leave to enter and refuse asylum. 

2.	Before us, Mr N Armstrong, instructed by Messrs Irving & Co, represented the Appellant and Ms J Sigley, a Home Office Presenting Officer, represented the Respondent. 

3.	The Appellant came to the UK on 14 March 2000 and claimed asylum on arrival.  His claim was based upon fear of the GIA, who had been seeking to extort money from the family car business, operated by the Appellant, his father, and his brother, Farid. This was not reported to the police, who however learned that Farid had been in contact with the GIA. He was arrested and detained on two occasions and at the end of August 1997 he left Algeria for the UK, where he has been granted indefinite leave to remain as a refugee. The Appellant claims that he was arrested by the police after his brother left, and after his release, was in hiding for a while but returned home and was then conscripted into the Armed Forces.  He finished his military service in January 2000 but believed he would be a target for the terrorists because of his military service.  He had also spent long periods out of work. His father, mother and another sibling remain in Algeria. The Adjudicator dismissed the Appellant's asylum and associated Article 3 claim, and there is no appeal before us concerning this.

4.	However the Adjudicator also considered and rejected a claim by the Appellant under Article 8 in respect of his family life. The appeal before us is against this decision. The relevant facts can be summarised as follows. The Appellant’s brother Farid lives in the UK, as does another brother, Foudil, who has been granted indefinite leave to remain as a consequence of psychiatric problems. They live near each other and often meet.  Additionally, the Appellant married Valerie Gabi, a UK citizen, on 5 February 2003, some two months before the hearing before the Adjudicator, having only met her some five months earlier. His wife knew at the time of the marriage that the Appellant's asylum appeal was coming up, but they still went ahead with the marriage because she said she was impulsive. By previous relationships, she has a young daughter who lives with her and the Appellant, and another daughter, now just 15, who lives with her mother. 

5.	The Adjudicator concluded that there was a strong likelihood that the Appellant married on 5 February 2003 to enhance his chances of staying in the UK, though she accepted  he had developed a good relationship with his wife and her daughter. The Adjudicator also accepted that the Appellant had a close relationship with his two brothers in the UK. However the Adjudicator had regard to the evidence as a whole, including the need of the Respondent to maintain an effective immigration policy.  Though she did not say so in terms, both representatives have accepted that at least by inference she followed a correct step-by-step approach in her assessment of Article 8, and the only issues before us relate to her assessment of proportionality.

6.	In this regard the Adjudicator concluded that the return of the Appellant to Algeria together with his wife and her daughter, would not be subject to any insurmountable obstacles.  Alternatively, she also concluded that there was no reason why the Appellant should not return to Algeria alone to obtain entry clearance as a spouse in accordance with the Immigration Rules. She had regard to the submission made to her by Mr Armstrong that the Appellant may not be able to obtain entry clearance because he might not be able to meet the requirements of the Rules as to accommodation and maintenance.  However she concluded that the requirements could possibly be met by the Appellant's wife in due course if she obtained employment, but that was a matter for her.

7.	Before us, Mr Armstrong attacked these conclusions in two specific respects.  

8.	The first was that the Adjudicator when assessing whether there were any insurmountable obstacles to the family returning to Algeria with the Appellant, did not take into account the fact that both his brothers had indefinite leave to remain in the UK and could not return with him.  This amounted to an insurmountable obstacle to the return of the family. Nor did she take into account the relationship between the Appellant's wife and her older daughter and her mother, and the problems that relocation to Algeria would cause them. 

9.	The second related to the prospect of the Appellant returning alone to seek a visa to re-enter as a spouse. Whilst he acknowledged that the Adjudicator and the Tribunal were bound by the decision of the Court of Appeal in Mahmood, nevertheless he argued that account should have been taken of the fact that this was a borderline case as to whether the Appellant could satisfy the requirements of the Immigration Rules on accommodation and maintenance, and removal would make his task of satisfying his burden more difficult, if not impossible. The Appellant's wife was presently freed by the presence of the Appellant to study to be a school assistant, and she was also working part-time as a lunch assistant at the school attended by her younger daughter. 

10.	In considering these submissions we have followed the guidance of the Court of Appeal in Oleed, that we should not interfere with the Adjudicator's assessment unless it is either "plainly wrong or unsustainable."  

11.	These issues concerning Article 8 have been considered by the Court of Appeal in various decisions. In Amjad Mahmood [2001] INLR 1 it undertook a very thorough review of the Strasbourg jurisprudence on the issue of proportionality. Lord Philips MR summarised the position as follows.
“I have drawn the following conclusions as to the approach of the Commission and the ECHR to the potential conflict between the respect for family life and the enforcement of immigration controls.
1.	A state has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations.
2.	Article 8 does not impose on a state any general obligation to respect the choice of residence of a married couple.
3.	Removal or exclusion of one family member from a state where other members of the family are lawfully resident will not necessarily infringe Article 8 rights provided there are no insurmountable obstacles to the family living together in the country of origin of the family members excluded. Even where this involves a degree of hardship for some or all members of the family.
4.	Article 8 is likely to be violated by the expulsion of a member of the 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.
5.	Knowledge on the part of one spouse at the time of the marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates Article 8.
6.	Whether interference with family rights is justified in the interests of controlling immigration will depend on (i) the facts of the particular case and (ii) the circumstances prevailing in the state whose action is impugned.

12.	Lord Phillips also held in paragraph 65 that; 
65. If and when the Appellant applies for permission for a settlement visa in accordance with [the Rules] his application will have to be considered having regard to his rights under Article 8. In the circumstances I do not consider that the possibility that his application may not succeed is any reason for excusing him from the requirement to make an application outside the country if he wishes permission to settle here with his wife and family. 
		
13.	Additionally Laws LJ stated at paragraphs 23 and 26 that 
23. Firm immigration control requires a consistency of treatment between one aspiring immigrant and another. If the established rule is to the effect – as it is – that a person seeking rights of residence here on grounds of marriage, (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would, in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control, because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in the country of origin.
26. No matter that the immigrant in the individual case, having arrived here without the required entry clearance, may be able to show that he would have been entitled to one, or even that the Home Office actually accepts that he meets the [Immigration] Rules’ substantive requirements; it is simply unfair that he should not have to wait in the queue like everyone else.  At least it is unfair unless he can demonstrate some exceptional circumstances, which reasonably justifies his jumping the queue.

14.	The Court of Appeal in Isiko [2001] Imm AR 291 also concluded that the Secretary of State was entitled to regard as important the integrity of the immigration regime as a whole, and expressly approved the above observations by Laws LJ. The Court of Appeal in Soumahoro [2003] EWCA Civ 840 recently expressed the same point in even stronger terms. It concluded that where the Secretary of State had conducted a balancing exercise on the facts, the role of the Adjudicator should be to decide whether the conclusion reached by him was in accordance with the law, even if the Adjudicator would personally have preferred the balance to be struck differently. Even in circumstances where it is necessary for the Adjudicator to reach his or her own conclusions on proportionality, (such as where the Secretary of State has not considered the Article 8 point, or where there are new or different facts that have not been considered by him) the Adjudicator should pay deference to the policy of the Secretary of State to maintain an effective immigration policy, to the extent that it was doubtful whether, in practice, the application of these two different approaches would often lead to different outcomes.

15.	Thus the Tribunal in Ahmed [2002] UKIAT01757, applying these principles, held that it would be proportionate to remove an illegal entrant, separated from his UK wife and British child because queue jumping for entry clearance will not be acceptable, provided a genuine application under the Rules from his home country would not take too long.

16.	We have followed the principles set out in these cases in assessing the submissions made to us.

17.	Mr Armstrong's first submission is that the Adjudicator was too restrictive when concluding that there was no insuperable obstacle to the Appellant's wife and her child returning with him to live together in Algeria. He should have taken into account the extended families both of the Appellant and of his wife.  

18.	With regard to the Appellant, this extended family means his brothers. They both have indefinite leave to remain arising out of their experiences in Algeria, and came to the UK well before the Appellant. Ms Sigley did not suggest that there would not be insuperable obstacles to both of them returning with the Appellant. However, as she pointed out, even if their relationship with the Appellant is strong, both brothers are adults living in separate households, albeit near the Appellant and their situation was not what Lord Phillips had in mind when analysing the Strasbourg jurisprudence as described above. We agree. We consider that in context he was referring to the extent to which a State has an obligation to respect the choice of residence of a married couple. He said that in terms. He went on, in our judgment, to assess the other issues, including that of “insurmountable obstacles” to return in the context of an applicant's immediate family. That is a husband and wife and children, living with him in his household. We accept that an applicant may have, in addition to their immediate nuclear family, a larger extended family with whom some family life is enjoyed in varying degrees, but it is implicit that unless they are an interdependent group, essentially living together in one household, they will not be returning anywhere together. It would be artificial to interpret the observations by Lord Phillips as meaning that every relative, however remote, should be assessed to see whether there is an insurmountable obstacle to their returning with an applicant, when they do not live with the Appellant in the UK. Having said that, we accept that it is possible for an adult to have a very close family life with relatives other than his/her spouse and children, and that consequently they should be considered as part of his nuclear family.  This will depend upon the facts in each case. There may be for example be a situation where there is a very close dependency on an applicant by a relative, who is not a spouse or child. In such event their ability to return with the applicant will be relevant. However, in this present appeal, the Adjudicator did not find as a fact that any such relationship existed between the Appellant and either of his brother's.  The brother with psychiatric problems did see the Appellant on a regular basis, and the Appellant lived with him for a while when he first arrived in the UK, but that is far short of there being a current and active dependence or their now being part of a common household. We do not accept therefore that the viability of return for either brother is a decisive factor in assessing whether there are any insurmountable obstacles to the Appellant returning with his immediate family.

19.	With regard to the Appellant's wife and her wider family, it is clear that neither she, nor her mother, nor either of her daughters wishes to return to Algeria with the Appellant.  They have many good reasons for not wanting to do so. There may be a degree of hardship if they were to do so. However none of them, on the evidence, have an insuperable obstacle to living with the Appellant in Algeria and we do not accept Mr Armstrong’s submission that Lord Phillips clear and unambiguous reference to an “insuperable obstacle,” should be qualified to include a reasonableness test. 

20.	Thus we do not consider that there is any viable substance, in Mr Armstrong's first ground.

21.	In his second ground in essence he invites us to take into account the possible outcome of an application for a visa, made by the Appellant on return to Algeria, and whether the prospect of success will be damaged by removal. However it is not for us to decide this issue. The proper task for the Adjudicator, and indeed the Tribunal, is to consider whether the requirement on the Appellant to return to Algeria to make a visa application will be disproportionate under Article 8.

22.	Thus the Tribunal in Soloot 01/TH/01366 was correct to allow the appeal, because on the facts the applicant would have been unable to make any visa application if returned to Iran, as there were no facilities available in that country and the applicant would not be permitted to travel to a neighbouring country, where there were visa application facilities. That is however a very different matter from the Tribunal considering the merits of a visa application, where proper facilities exist, as in Algeria. That is the proper function of the Secretary of State and those who act in his name. In this appeal, no application under the Rules has yet been made by the Appellant for leave to enter as a spouse.  Still less has any decision been made by an Entry Clearance Officer. We would be wrong to speculate on the outcome. The Entry Clearance Officer is, as we are, required to take into account an applicant's human rights.  If we were to deal with this issue ourselves, we would in effect either be usurping the Entry Clearance Officer’s role or assuming, without any good reason, that the Entry Clearance Officer will make a decision that is not in accordance with the law. If the Entry Clearance Officer should get it wrong, then his decision will be subject to a right appeal in the usual way. 

23.	Nor do we accept Mr Armstrong's point that there is a material distinction for our purposes between an application on removal and an entry application.  The entire point of Laws LJ’s comments in Mahmood was that an applicant should not be entitled to undermine effective immigration control by being able to make an in-country application based on a marriage, when the Rules do not permit it. Indeed Lord Phillips effectively disposed of this and the previous point in paragraph 65 of Mahmood, when he said that "I do not consider the possibility that his application may not succeed is any reason for excusing him from the requirement to make an application outside country if he wishes permission to settle here with his wife and family.”

24.	The Tribunal addressed a similar point in its starred decision in Chawish [2002] UKIAT 01376. In that case the Applicant, a Kurd from Iraq, was a beneficiary of an undertaking not to remove him until a safe means of returning him to the KAA could be found. He argued that if he remained in the UK without any immigration status he would be destitute and this would be in violation of his Article 3 rights. The Tribunal held that
“It would be unlawful for the Secretary of State to act in such a way as to breach the claimant's human rights or indeed those of anyone seeking to enter or to remain in United Kingdom.  If he did act in such a way, a legal challenge could be brought and the decision would be overturned.  The law does not tolerate anyone being left destitute as a number of decisions of the Court of Appeal have made clear.”

25.	This in our view is the correct approach. We should not prejudge the Entry Clearance Officer's decision or assume that he would breach Article 8 when making that decision.  The issue before us, as for the Adjudicator, is whether it would be disproportionate to require the Appellant to return to Algeria to make a visa application for entry to the UK as a spouse in accordance with the Immigration Rules. The Adjudicator concluded that it would not, and there is no error in that decision

26.	For all the reasons given above this appeal is dismissed.

Spencer Batiste
Vice-President