Heard at Field House on:
24 October 2003

[2003] UKIAT 00152 F (Jamaica)

Prepared on:
24 October 2003

IMMIGRATION APPEAL TRIBUNAL

                                                                              Date Determination notified:

                                                                                     19 November 2003

Before:

MR H J E LATTER (CHAIRMAN)
MRS E MORTON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

APPELLANT

and

RESPONDENT 
JD
Representation

For the Appellant: 		Mr D Saville, Home Office Presenting Officer.	
For the Respondent:	Mr A N Ikie, Solicitor.

DETERMINATION AND REASONS

1.	The Secretary of State appeals against the determination of an Adjudicator, Mr S W Frankish, who allowed the Respondent’s appeal on Article 8 grounds against a decision made on 16 December 2002 giving directions for his removal following the refusal of his claim for asylum. In this determination the Tribunal will refer to the Respondent to this appeal as the Applicant.

2.	The Applicant is a citizen of Jamaica born in July 1967. On his own account his mother abandoned the family when he was twelve and went to live in Canada. His father blamed him for this and he left home when he was thirteen to live with a cousin in Kingston. When he was eighteen he went to the central area of town and was injured when he was shot in the hip. He believes that his assailants were from the PNP and the inference is that he was shot because of his associations with the JLP. In any event, the Appellant was detained in hospital for three months but had to leave for his own safety before he had completed his treatment.

3.	He came to the United Kingdom in 1993. He met his future wife, Debbie Williams, in 1994. They lived together until 1997, when the Applicant was detained as an over-stayer and removed to Jamaica. Subsequently Mrs Fullwood joined him, and stayed with her grand-mother. They married in Jamaica in July 1997. The Applicant applied at the High Commission for entry clearance. He was offered an interview after six months and the interview was later rescheduled to 30 April 1999. The Applicant said that when police and gunmen found out that he was in Jamaica they tracked him down and attacked him. He escaped one particular attack and then went into hiding, living rough. He obtained a false passport and entered the United Kingdom before his rescheduled interview for entry clearance on the grounds of his marriage.

4.	After he was returned to the United Kingdom, the Appellant was arrested on drugs charges and sentenced to four years imprisonment, serving two. At this stage he gave the false name of Curtis Palmer and served the sentence under that name. A recommendation for deportation was made and the Appellant was removed in 1999. He says that the situation in Jamaica with gunmen, political activists and corrupt police was more dangerous than before. He had not been forgotten by the various factions and once again had to go into hiding. A month later he returned to the United Kingdom. The Appellant returned to the United Kingdom in December 2001 in breach of the deportation order using a friend’s passport. He was arrested in September 2002 on suspicion of possessing cannabis. He gave the name of Jeremiah McIntosh but checks revealed his true identity. The Appellant claimed asylum on 18 October 2002. His claim was refused and the Adjudicator heard the appeal against this decision on 21 February and 23 April 2003. 

5.	The Adjudicator found that the Appellant did not face persecution for a Convention reason because of his connections with the JLP. For the same reasons he was not satisfied that there would be a breach of Article 3 on return. However, the Adjudicator went on to consider Article 8. The Applicant had said in evidence that on return to Jamaica he would continue with his application for entry clearance on the grounds of marriage. If that application had lapsed, he would make a fresh application. The Adjudicator accepted that the Appellant had married Mrs Williams on 19 May 1997 and they now had a child, Dominic, born on 8 November 2002. Mrs Williams gave evidence and she accepted that she had been aware of the Applicant’s lack of immigration status when they married. There had been a period of separation in 2001 but they had reconciled. 

6.	The Adjudicator considered the Secretary of State’s policy in DP3/96 and the judgment of the Court of Appeal in Mahmood (2001) Imm AR 229. The Applicant had been in custody since before Dominic’s birth. Subsequently, he was released from custody. He said that he returned to the United Kingdom from Jamaica in 1997 because gunmen were on his tail. The Adjudicator accepted that removal would be an interference with the Applicant’s right to family life and went on to consider whether that removal would be proportionate to a legitimate aim within Article 8 (2). He noted the Applicant’s poor immigration record. He also had a bad criminal record, having been convicted in the United Kingdom of the supply of a Class A drug and of possessing a Class B drug. He also had five convictions in Jamaica.

7.	 The Adjudicator commented that he found the Applicant’s wife to be impressive as to her probity, hard work and commitment to her child and husband. It was not realistic to expect her to return to Jamaica with the Applicant and her child. She had obtained a qualification which she continued to use as a legal cashier, despite her responsibilities as a mother. The Applicant, whilst in custody, had obtained a qualification as a painter and decorator and also as a driver. Having regard to the duration of the relationship and the impracticability of the Applicant’s wife supporting the family in the event of a removal to Jamaica, the Adjudicator found that the Applicant had made out his case under Article 8 and allowed the appeal on this basis. 

8.	The grounds of appeal argue that the Adjudicator failed to indicate what, if any, insurmountable problems there were to the Applicant, his wife and child relocating to Jamaica, and why, given the Applicant’s appalling immigration and criminal record, the decision to remove him was not proportionate to the need to maintain effective immigration control, nor why it would be unduly harsh to expect him to return to Jamaica to make an application for entry clearance. The Adjudicator had not properly considered the case law or the fact that the Applicant’s wife had known of his immigration status. The family had not been established for long in the United Kingdom. It was not unreasonable to expect them to follow him to Jamaica. The grounds also argue that the Adjudicator erred in not taking final submissions on Article 8 from the presenting officer. This ground was not pursued at the hearing before the Tribunal and in any event, the Tribunal heard full submissions on this issue.

9.	Mr Saville argued that the Adjudicator had erred in law in his approach to Article 8. He had not fully considered all relevant factors. He had focussed only on whether it was realistic to expect the Applicant’s wife to return to Jamaica and had given undue weight to the fact that, if she did, she would have to give up her employment. There would be no good reason why she could not return, bearing in mind that she had returned to Jamaica with the Applicant in 1997. They had married there. She had been able to live with relatives. The Adjudicator had failed to give proper weight to the factors set out in paragraph 55 of the judgment of Laws LJ in Mahmood.  The decision on proportionality was perverse and was not properly open to the Adjudicator. 

10.	Mr Ikie argued that the Adjudicator had taken all relevant factors into account. The real issue was whether the decision to remove was proportionate in the circumstances. The Adjudicator had correctly identified all relevant factors including the Applicant’s immigration and criminal record. He had balanced this against the fact of ten years cohabitation. It was for him to decide whether it was reasonable for the Applicant’s wife to follow him to Jamaica. The Adjudicator had accepted that the Applicant had been the victim of severe attacks in Jamaica. In these circumstances it would not be reasonable to expect him to return to make an application for entry clearance. In substance, the Secretary of State was seeking to reargue issues of fact and issues relating to the weight to be given to the various different factors in the evidence.

11.	The Court of Appeal in Oleed (2002) EWCA Civ 1906 had emphasised that an Adjudicator’s findings of fact should only be overturned if plainly wrong or unsustainable on the evidence. This was confirmed by the approach of the Tribunal in Omar (2002) UKIAT 06844. It would be wrong to read the phrase ‘insurmountable obstacle’ in the judgement in Mahmood as imposing too high a test. Mr Ikie referred to K(Pakistan) (2003) UKIAT 00037. The issue was whether it would be reasonable in the circumstances to require the family members to leave the country. The Tribunal asked Mr Ikie to make submissions on the Court of Appeal’s judgement in Blessing Edore (2003) EWCA Civ 716 and Razgar (2003) EWCA 840. He submitted that the Secretary of State had not considered the issue of proportionality. The reference in paragraph 20 of the reasons for refusal letter related to an assertion that there had been a breach of the Applicant’s rights when he was detained in prison in the United Kingdom pending this application.

12.	In reply Mr Saville argued that the Applicant could not rely on the risk of violence in Jamaica were he to return to make an application for entry clearance: his claim had been refused on both asylum and Article 3 grounds. There was no reason why the Applicant should not return and make an application in accordance with the Rules for the reasons identified by the Court of Appeal in paragraphs 22-26 of the judgment of Laws LJ in Mahmood. 

13.	The issue in this appeal is whether the Adjudicator was entitled to conclude on the evidence before him that removal would be disproportionate to a legitimate aim. There is no dispute that the Applicant enjoys family life in the United Kingdom with his wife and child. There would be an interference with that right were he to be removed to Jamaica, but removal would be in accordance with the law and pursuant to a legitimate aim. 

14.	The Tribunal accept that an Adjudicator’s findings of fact should not be set aside unless they are plainly wrong or not properly sustainable on the evidence. The rationale for this rule is found in Borissov v the Secretary of State 1996 Imm AR524 at page 535 (cited in paragraph 26 of the judgement in Oleed). The Tribunal will be reluctant to interfere with a finding of primary fact by an Adjudicator, which was dependent upon his assessment of the reliability or credibility of a witness who appeared before him. The determination to which we were referred in Omar illustrates the point that a finding of primary fact should not be overturned when it was properly open to the Adjudicator on the evidence and was not perverse. However, in the present appeal there is no substantial dispute as to the primary facts. The issue is whether on those facts it can properly be said that removal would be disproportionate. 

15.	In Mahmood, the Court of Appeal, in paragraph 55, identified and summarised the approach taken by the European Court on the potential conflict between the respect for family life and the importance of immigration controls. A state has the right to control the entry of non nationals into its territory subject to its treaty obligations. Article 8 does not impose on a state any general obligation to respect the choice of residence of a married couple. Removal of one family member where other family members are lawfully resident will not necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family. 

16.	The Tribunal accept that the phrase ‘insurmountable obstacle’ should not be interpreted too stringently. The obstacles to settling abroad are obviously relevant and must be looked at in the context of all the evidence and balanced against other factors such as knowledge on the part of one spouse that the other spouse did not have rights of residence. The Court of Appeal emphasised that whether interference with family rights was justified in the interests of the control of immigration would depend on the facts of each particular case and the circumstances prevailing in the state whose action was impugned. 

17.	The reasons which the Adjudicator relied on, primarily in paragraph 55 of his determination, related to the fact that the Applicant’s wife would have to give up her employment. He commented on the fact that the lion’s share of income generation for the family largely fell upon her. In our view this is a relatively insignificant factor. Inevitably it must follow that if the Applicant’s wife is expected to return to Jamaica she would have to give up her employment. In many respects the Applicant’s position is better than many others. She has relatives in Jamaica. She returned to Jamaica in 1997 and married the Applicant there. The Tribunal must also take into account the letter from the Appellant dated 24 July 2003 that his wife has started a new job as a practice manager for a firm of solicitors. We take into account the evidence that their son has a bone missing in his back and is being monitored by specialist doctors. However, the Tribunal have no further information on that issue. 

18.	Even leaving aside the issue of employment, the Tribunal would accept that the Applicant’s wife with a very young child may well not wish to relocate to Jamaica. However, that is not the only factor to be taken into account. The Applicant accepts that he has a bad criminal record. He has five convictions in Jamaica. He says that he had to return to the United Kingdom in 1997 to avoid violence in Jamaica but, not long after he returned to the United Kingdom, he was convicted in October 1998 of supplying cocaine and received a sentence of four years and was recommended for deportation. In May 2000 he was removed, but he returned and was removed again on 18 January 2001 as he had entered illegally in breach of the order. Undaunted, the Appellant returned again in December 2001 using a friend’s passport. It was after he was detained by the police and his identity came to light that he claimed asylum.

19.	The Adjudicator did not have the benefit which the Tribunal have of recent judgments in the Court of Appeal dealing with the approach to be adopted when considering the issue of proportionality in appeals on Article 8 grounds. In Blessing Edore [2003] EWCA Civ 716 the court held that the correct approach was to consider whether the Secretary of State’s decision was within the range of reasonable responses open to him on the facts. In Razgar [2003] EWCA Civ 840 this approach was confirmed, subject only to situations where the findings of fact were so different from those before the Secretary of State that it undermined the factual basis of the balancing exercise performed by the Secretary of State. In such cases the Adjudicator, or the Tribunal, should carry out the balancing exercise itself, but paying considerable deference to the Secretary of State’s view of the importance of maintaining an immigration policy. 

20.	In the light of the facts of this appeal, on the basis that the proper approach is to consider whether the decision was within the range of reasonable responses open to the Secretary of State, the Tribunal are satisfied that there can only be one answer. In the light of the Applicant’s criminal and immigration history, it was clearly open to the Secretary of State to decide that removal would be proportionate despite the compassionate circumstances of a separation from his wife and child. The Applicant has demonstrated a blatant disregard both for the criminal law and for the immigration rules and has not hesitated to resort to deception where necessary. 

21.	If the Tribunal have to assess the issue of proportionality, we have no doubt in the light of the guidelines in Razgar and giving due deference to the importance of maintaining effective immigration control, that the decision to remove is proportionate. The Tribunal can see no reason why the Appellant should not be expected to return to Jamaica and make an application for entry clearance in accordance with the Rules. It is argued by Mr Ikie that one consequence will be that the Applicant might not be granted entry clearance because of his criminal convictions and the fact of his deportation. However, that flows from the Applicant’s own behaviour and the importance of protecting the public from such behaviour.

22.	The only substantial reason put forward as to why the Applicant should not return to Jamaica and make an application for entry clearance is that there is a continued fear of violence from criminal gangs. His appeal was refused, rightly, on both asylum and Article 3 grounds. Insofar as the Applicant is at risk of violence in Jamaica there is no reason why he should not look to the Jamaican authorities for protection. 

23.	In summary, in our view, the Adjudicator’s conclusions on the issue of proportionality were not sustainable on the evidence. He has failed to take all relevant factors into account and given undue weight to a relatively minor issue, the effect on the family income of the loss of employment by the Applicant’s wife. He has failed to consider whether or not the Applicant could reasonably be expected to return to Jamaica to make an application for entry clearance.

24.	This is not a case without compassionate circumstances. The Adjudicator found that the Applicant’s wife was an impressive witness both as to her probity, hard work and commitment to her husband and child. The Applicant has said in a letter to the Tribunal that he really does regret his immigration record. He is ashamed of his convictions and has no wish to be in trouble for the rest of his life. We hope that this is the case, but the fact remains that the issue for the Tribunal is whether removing the Applicant to Jamaica would be a breach of the United Kingdom’s obligations under the Human Rights Convention with the consequence that the Secretary of State would be required to permit the Applicant to remain in the United Kingdom without having made a proper application for entry clearance in accordance with the Rules. For the reasons the Tribunal have given, we are not satisfied that any such conclusion is justified on the facts of this appeal.  We are satisfied that removal would be proportionate to a legitimate aim.

25.	In these circumstances, the appeal by the Secretary of State is allowed.

Mr H J E Latter
Vice President