AD(Leave to remain - Article 8) Guinea [2004] UKIAT 00301	
IMMIGRATION APPEAL TRIBUNAL	
                                                                                                
Date of Hearing:   6 September  2004 
                                                                      Date Signed:          200
Date Determination Notified:  11 November 2004     

	
	
Before:	

Mr C P Mather (Vice President)
Mr A G Jeevanjee
Mr C Thursby
	
Between 									   	
	
Appellant	
	
And	
	
SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

DETERMINATION AND REASONS

For the Appellant:		Miss S Farazi, Immigration Appeal Service
For the Respondent:	Mr D W Saville, Home Office Presenting Officer

1.	The appellant is a citizen of Guinea.  She was born on 22 October 1959.

2.	With permission, she appeals the determination of an Adjudicator (Miss J Plumptre) which was promulgated on 20 October 2003.    In that determination the Adjudicator dismissed the appellant’s appeal, on immigration grounds, against the respondent’s decision to refuse to vary her leave to remain.  She wished to remain in the United Kingdom as the wife of Mr Aldulpha (“the sponsor”).  

3.	The sponsor claims to have arrived in the United Kingdom, from Sierra Leone, in 1963.  He is said to have married the appellant by proxy in 1999.   Thereafter the appellant came to the United Kingdom, arriving on 28 May 1999.  They met then for the first time.  The sponsor told the Adjudicator they subsequently married, at a Registry Office, and have lived together since.   

4.	When the appellant arrived in the United Kingdom, she obtained entry as a visitor.  She does not appear to have mentioned her intention to marry.    Before her 6 months leave as a visitor expired, she applied to vary the leave to enable her to be here as a spouse.   The application was dated 8 November 1999.  On 17 January 2001 the respondent wrote to the appellant requesting documents.  He required:

“Evidence of Mr Aldulpha’s immigration status in the United Kingdom”.

5.	Neither the appellant, nor the sponsor replied to that letter. On 22 March 2001 the application was refused on non compliance grounds, under the provisions of paragraph 322(9) of HC 395.  That paragraph governs the grounds on which an application to vary leave to enter or remain in the United Kingdom should normally be refused.   The sub-paragraph reads:

“(9)	Failure by an applicant to produce in a reasonable time documents or other evidence required by the Secretary of State to establish his claim to remain under these rules.”

6.	The appellant submitted an in time notice of appeal.    Attached, was a statement of additional grounds, which said:

“The appellant also appeals on human rights grounds of her family in the UK.”

7.	The Adjudicator dismissed the appeal on immigration grounds.    The appellant herself did not give evidence, apparently because her English is not very good.   The sponsor did.   He told the Adjudicator he had arrived in the United Kingdom on 26 July 1963 as a student and has not left the United Kingdom since.  He accepted he had received the letter requesting further information.  He said he did not understand what documents were required and that he had contacted three firms of solicitors who were unable to help.     He then contacted the IAS who were also unsure what to do.  He claims that his original passport was sent back to Sierra Leone for renewal in 1999 but unexpectedly, was not returned to him with the new one.  It is clear from the current passport that he did have an earlier one which had been issued in Freetown on 25 October 1962.   The Adjudicator questioned why there was a receipt dated in 2002 for a 1999 passport renewal.  She was told that the document had been renewed again in 2002 following a drive by the Sierra Leone government to renew all passports.    He also told the Adjudicator that he is self-employed, pays council tax and national insurance contributions, is both partially sighted and diabetic.  He produced a letter from the Contributions Agency stating that he was previously known as Rigsby Adolphus Tom Davies, and a letter from the National Insurance Contributions Office giving a national insurance number and a date of entry into the United Kingdom in his current name.

8.	The Adjudicator said that her task was to decide whether the respondent’s decision was correct.   She could not have dealt with an appeal on the merits against a refusal of entry clearance as a spouse.    First, the respondent had not made such a decision, his decision being based only non compliance.  Second, even if she had been entitled to do so she did not have evidence before her going to the requirements of Rule 281 of HC 395, such as whether a marriage was subsisting.

9.	Although the Adjudicator was told a little about why the appellant had not co-operated, by replying to the respondent’s letter, there was no evidence to suggest that the respondent was wrong.   The sponsor confirmed neither he nor the appellant he had complied within a reasonable time.  The Adjudicator properly concluded that the respondent was entitled to make the decision that he did.   

10.	Before us there was argument as to whether the sponsor was settled in the United Kingdom.   In particular, whether by virtue of having arrived before the Commonwealth Immigrants Act 1962 came into force, he was entitled to enter without being subjected to Immigration Control.   Although it seems he entered after the Act was passed, neither representative was able to tell us whether it had come into force by then.   Mr Saville argued that if it had come into effect the sponsor would have been subject to immigration control and, never having become a British citizen, he would remain subject to immigration control.   In our view that is irrelevant. The  appellant, by virtue of her non co-operation has failed to establish anything. The respondent was unable to even start considering paragraph 281,  including the question of whether the sponsor is settled in the United Kingdom and on what basis.      

11.	The Adjudicator did not err in law in her decision that the respondent’s decision to refuse the application was correct.

12.	The Adjudicator did err by not dealing with the human rights aspect of the appeal.    Even if she had thought that it was wholly without merit, she should have said so.   The issue was raised in the notice of appeal, and referred to in the skeleton argument.  There was evidence which went to it.  For example, the Adjudicator asked the sponsor whether he would go back to Guinea with his wife if the application were refused.    That was not relevant to the immigration decision, and could only have been asked in relation to Article 8 issues.

13.	Miss Farazi argued that we should remit the human rights aspect of the appeal back to an Adjudicator.    The basis of her argument was that we were unable to deal with it ourselves because that would deprive the appellant of a first instance decision.   Also we could not say that the aspect had no merit because we do not know what evidence was given to the Adjudicator.  Mr Saville argued that we should only remit an appeal if, it has some chance of success.   He argued that this one does not.  

14.	It is clear from S S Malaysia (2004) UKIAT 00091* that the code of Immigration Rules to be found in HC 395 is not incompatible with Article 8 ECHR.   In this case the appellant has the right to make a fresh application, she is in country, and has been since before her formal marriage to the sponsor.   The reason her application was refused is not that it was outside the rules but, because she did not co-operate with the respondent.  She has not begun to establish that she can comply with the requirements for leave to enter or remain as a spouse.   It is not even the case that she has attempted to co-operate but failed.    It is wrong in principle that having failed to co-operate with the respondent she should then be able to succeed using a right of appeal relying on Article 8 ECHR.    Article 8, in this context, may produce a remedy where, very exceptionally, an application to enter or remain falls outside the scope of the immigration rules.   There is no prospect of an appeal limited to Article 8 grounds succeeding in these circumstances.  

15.	Having said that the appellant is entitled to make a fresh application, we are prepared to go as far as to say that, if all that we have heard about the sponsor and the appellant is correct, there seems to be no reason why, if the appropriate evidence is submitted to the respondent, that application should not succeed.      The appellant should have co-operated by replying to the respondent’s letter in the first place, or made a fresh application, rather than appealing to the Adjudicator and then to the Tribunal.   

15.	The appeal is dismissed.

C P Mather
Vice President

Approved for electronic distribution.