| Immigration — Appeal — Removal — Claimant overstayed visitor’s visa and joined by children —Application for permission to remain after marriage to British citizen refused after delay — Whether failure to take into account Home Office policy — Whether removal proportionate — Whether impact of removal on spouse relevant consideration — Human Rights Act 1998, Sch 1, Pt I, art 8}
AB (Jamaica) v Secretary of State for the Home Department [2007] EWCA Civ 1302
CA (Sedley and Thomas LJJ and Sir Peter Gibson): 6 December 2007
Where a person was liable to removal from the United Kingdom for a breach of immigration rules but had married a person settled in this country, the effect of the removal on the spouse was an important consideration in deciding whether removal was proportionate for the purposes of art 8 of the European Convention on Human Rights, as scheduled to the Human Rights Act 1998, which guaranteed the right to family life.
The Court of Appeal so held, allowing the appeal of the claimant, AB, against the dismissal by the Asylum and Immigration Tribunal of her appeal against the refusal of the Secretary of State on 8 September 2004 to grant her application for leave to remain on the basis of her marriage.
SEDLEY LJ said that the claimant, a Jamaican citizen, came to this country in September 1998 on a 6-month visitor’s visa. She overstayed. In June 1999 she was joined by her daughters. She met a British citizen whom she married in July 2001. He was born in this country and had lived here all his life. Two months later the claimant applied to the Home Office for leave to remain on the basis of her marriage. Almost three years later a reply came, refusing the application. The House of Lords in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 set out in detail what had to be established before an asylum-seeker could be expected to relocate in his or her country of origin. It showed the specificity with which a fact-finding tribunal had to consider whether an enforced removal would create undue hardship, a question which was also critical to DP 3/96, the Home Office policy applicable to the present case, and to art 8(2) of the Convention. In adapting that reasoning to a case like the present, the tribunal would be considering forcing someone lawfully settled here to choose between losing his family or migrating with them to a country which might not be his own. DP 3/96 included as “settled” both British citizens living in the United Kingdom and nationals of other countries with indefinite leave to enter or remain here. There could be a world of difference, depending on the particular circumstances, between expecting a foreign national, albeit settled here, to return with his family to his country of origin and expecting a British citizen who had lived here all his life and had an inalienable right of abode here to live and work and find accommodation in another country or forfeit his marriage. In substance, albeit not in form, the claimant’s husband was a party to the proceedings. It was as much his marriage as the claimant’s which was in jeopardy, and it was the impact of removal on him rather than on her which, given the lapse of years since the marriage, was critical. His Convention rights were as fully engaged as hers. It could not be permissible to give less than detailed and anxious consideration to the situation of a British citizen who had lived here all his life before it was held reasonable and proportionate to expect him to emigrate to a foreign country in order to keep his marriage intact. No consideration was given to those matters by the tribunal. The determination was further flawed by its failure to bring into the assessment of the proportionality of removing the claimant the fact that the executive as a matter of policy did not regard an overstayer who was in a qualifying marriage as ordinarily liable to removal if the settled spouse could not reasonably be expected to go too.
THOMAS LJ and SIR PETER GIBSON agreed.
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