The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing human rights grounds. The respondent had a policy that the applicant must return to the home country and make her application from there.
Held: The appeal succeeded. Particularly in cases involving the human rights of children caution must be exercised before requiring out of country applications.
Lord Scott of Foscote: ‘policies that involve people cannot be, and should not be allowed to become, rigid inflexible rules. The bureaucracy of which Kafka wrote cannot be allowed to take root in this country and the courts must see that it does not. ‘ and ‘it must be disproportionate to expect a four year old girl, who was born and has lived all her life here, either to be separated from her mother for some months or to travel with her mother to endure the ‘harsh and unpalatable’ conditions in Zimbabwe simply in order to enforce the entry clearance procedures.’
Lord Brown: ‘This appellant came to the UK to seek asylum, met an old friend from Zimbabwe, married him and had a child. He is now settled here as a refugee and cannot return. No one apparently doubts that, in the longer term, this family will have to be allowed to live together here. Is it really to be said that effective immigration control requires that the appellant and her child must first travel back (perhaps at the taxpayer’s expense) to Zimbabwe, a country to which the enforced return of failed asylum-seekers remained suspended for more than two years after the appellant’s marriage and where conditions are ‘harsh and unpalatable’, and remain there for some months obtaining entry clearance, before finally she can return (at her own expense) to the UK to resume her family life which meantime will have been gravely disrupted? Surely one has only to ask the question to recognise the right answer. ‘
Judges:
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscot, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
Citations:
[2008] UKHL 40, [2008] 1 WLR 1420, Times 26-Jun-2008, [2009] 1 All ER 363, [2008] HRLR 39, [2008] INLR 502, [2008] UKHRR 1008, [2008] Imm AR 700
Links:
Statutes:
Immigration and Asylum Act 1999 65, Nationality, Immigration and Asylum Act 2002 82 84, European Convention on Human Rights 8
Jurisdiction:
England and Wales
Citing:
Cited – Beoku Betts v Secretary of State for the Home Department CA 6-Jul-2005
The appellant arrived aged 19 from Sierra Leone and was granted leave to enter as a student, which leave was extended. His famiy had been politically active and suffered abuse after a coup. When his leave expired he applied for asylum. Other family . .
Applied – Beoku Betts v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had arrived from Sierra Leone and obtained student permits. When they expired he sought asylum, citing his family’s persecution after a coup, and that fact that other members of his family now had indefinite leave, and he said that an . .
Appeal from – Chikwamba v Secretary of State for the Home Department CA 16-Nov-2005
The claimant was ordered to return to Zimbabwe to make her asylum claim from there. She argued that it would infringe her human rights. She now had a young daughter here. The IAT had dismissed her appeal on the basis that the appellant could and . .
Cited – Regina v Secretary of State for Home Department ex parte Mahmood CA 8-Dec-2000
A Pakistani citizen entered the UK illegally and claimed asylum. A week before his claim was refused and he was served with removal directions, he married a British citizen of Pakistani origin. Two children were later born.
Held: Only . .
Cited – Ekinci, Regina (on the Application of) v Secretary of State for the Home Department CA 17-Jun-2003
The appellant, a Turkish citizen entered illegally and claimed asylum. He falsely said he had not sought asylum in another EC country. He had lived in Germany for eight years, and had twice unsuccessfully claimed asylum. Shortly after arrangements . .
Cited – Mukarkar v Secretary of State for the Home Department CA 25-Jul-2006
The applicant, a Yemeni citizen, obtained entry clearance as a visitor by deception and then unsuccessfully sought leave to remain as a dependent relative of his many children settled here. He had numerous ailments and his health was continuing to . .
Cited – Regina (Yaser Mahmood) v Secretary of State for Home Department Admn 9-Aug-2001
The Home Secretary had served notice that the applicant was an illegal immigrant, and liable to deportation. An order had been made for the cross examination of the applicant. He had come to England to study, but soon dropped his immediate plans. He . .
Cited – SB (Bangladesh) v Secretary of State for the Home Department CA 31-Jan-2007
A Bangladeshi woman entered into an arranged polygamous marriage in Bangladesh and many years later dishonestly (led by her husband) obtained entry clearance as a visitor before then unsuccessfully seeking leave to remain as being financially . .
Cited by:
Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – MA (Pakistan) v Secretary of State for the Home Department CA 27-Jul-2009
The claimant appealed against refusal of leave to enter and cancelling his leave to remain. He had made his claim on human rights grounds, saying that the refusal would split him from his wife. He had been told that he would have to renew his . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .
Cited – Agyarko and Others, Regina (on The Application of) v The Secretary of State for The Home Department CA 6-May-2015
Appeals against orders for removal after applicants had each married after expiry of the period of their lawful stay. A conceded that her application fell outside the Rules, but said that it was an appropriate case for the exercise of discretion. . .
Lists of cited by and citing cases may be incomplete.
Immigration, Human Rights, Children
Updated: 18 July 2022; Ref: scu.270385