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 were made for his removal to Germany, he married a woman whom he had known in Turkey and who had since acquired British citizenship. He now claimed the right to remain here with her under article 8. A child was born. His claim was certified by the Secretary of State pursuant to section 72(2)(a) to be ‘manifestly unfounded’ and the refusal of his application for judicial review of that was now appealed. He said it would be wrong to return him to Germany to apply for entry clearance there because he would in any event fail to qualify. He would be unable to show that he could live here ‘without recourse to public funds’. He had an appalling immigration history; on granting him leave to appeal Sedley LJ had observed that ‘few claimants come to court with a track record of such prolonged evasion and mendacity’.
Held: The court noted that there was scope for permission to enter outside the rules if article 8 required it and that the time taken to process entry clearance applications in Germany was something under a month. There was: ‘nothing even arguably disproportionate in requiring this appellant to return to Germany for the relatively short space of time that will elapse before he is then able to have his entry clearance application properly determined, if necessary outside the strict rules. That the Secretary of State is not contemplating or intending any longer-term, let alone permanent, separation of the appellant from his family seems to me abundantly plain.’
Simon Brown LJ said: ‘Even if strictly he fails to qualify so that the ECO would be prohibited from granting leave to enter, given the obvious article 8 dimension to the case the ECO would refer the application to an Immigration Officer who undoubtedly has a discretion to admit someone outside the Rules. And if entry were to be refused at that stage, then indeed a section 59 right of appeal would certainly arise in which, by virtue of section 65(3), (4) and (5) the adjudicator would have jurisdiction to consider the appellant’s human rights.’
Judges:
Lord Justice Kay, Mr Justice Bodey, Lord Justice Simon Brown
Citations:
[2003] EWCA Civ 765, [2004] Imm AR 15
Links:
Statutes:
European Convention on Human Rights 8
Jurisdiction:
England and Wales
Citing:
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 by:
Cited – Chikwamba v Secretary of State for the Home Department HL 25-Jun-2008
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 . .
Cited – LH (Truly Exceptional, Ekinci Applied) Jamaica IAT 24-Jan-2006
. .
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 – 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 – Patel and Others v Secretary of State for The Home Department SC 20-Nov-2013
The court was asked as to the respective duties of the Secretary of State and the First-tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, and more particularly as to the . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Immigration
Updated: 07 June 2022; Ref: scu.183640