EH  (Palestinian – entry clearance – proportionality) Iraq [2005] UKIAT 00062                                                                                                                                                            	
																		
IMMIGRATION APPEAL TRIBUNAL

Date:  15 February 2005
Date Determination notified:
	04/03/05

Before:

The Honourable Mr Justice Ouseley (President)
Mr J Freeman (Vice President)
Mr P R Lane (Vice President)

Between:

APPELLANT

and

Secretary of State for the Home Department
	RESPONDENT

Appearances:	
For the Appellant:	Ms A Weston, instructed by Tayler & Co Solicitors
For the Respondent:	Ms J Sigley, Home Office Presenting Officer 

DETERMINATION AND REASONS

1.	This is an appeal against the determination of an Adjudicator, Mr A Baker, promulgated on 24 June 2004.  He dismissed the Appellant’s appeal against the refusal by the Secretary of State of leave to enter and his proposal to give directions for the Appellant’s removal to Iraq.

2.	The Appellant was born in Kuwait in 1972 to parents born in Gaza.  He is a Palestinian who had been habitually resident in Iraq since 1991.  He feared for his safety there after his brothers had got into difficulties with Ba’ath Party members over business dealings and left in 1999.  He arrived in the United Kingdom three months later in September 1999, having travelled via Iran, Thailand, and Laos.  He claimed asylum on arrival but his claim was not dealt with until, after an SEF interview in June 2003, it was refused in June 2004.

3.	The Adjudicator had reservations about his complete truthfulness in relating the difficulties which his brother had had and about why asylum had not been claimed en route to the United Kingdom.  But he accepted the essence of the claim.  He concluded however that the change in the regime had removed the source of his fear.  The claim that Palestinians were now persecuted in Iraq because of the preferential status which they had enjoyed under Saddam Hussein was rejected, although there had been mass evictions from their homes.  “There was no evidence of violence or other overt discrimination” against them, though many had chosen to go to Jordan, like his mother.  Conditions were not significantly worse than for many others in Iraq.  He rejected the asylum claim.

4.	The Article 8 ECHR claim was based upon the relationship which the Appellant had formed in  about March 2002 with a British citizen to whom he had become engaged in September 2003, with whom he lived and whom he was shortly due to marry.  His fiancée was unwilling to move to Iraq because of the security situation and her lack of any local language, or relations there.  The Secretary of State argued that he could make an application for entry clearance from Jordan.

5.	The Adjudicator said:

“14.	The background materials shows that there are currently no United Kingdom entry clearance facilities in Iraq.  Applications by Iraqi citizens and those of habitual Iraqi residence should be made via Amman in Jordan.”

6.	The Adjudicator said that despite certain anxieties:

“23.	I do still find to the appropriate level of proof, that family life does exist and that a return would indeed constitute an interference with it.  I also find that such interference is in accordance with the law which does have the legitimate aim of immigration control.  I therefore must now turn to proportionality.

[His fiancée] freely concedes that she was aware of the Appellant’s uncertain immigration status from very early in their relationship which developed such notwithstanding.  It is clearly a matter of her personal choice as to whether she were to accompany him back to Iraq, having entered into the present situation with her eyes wide open, however her concerns currently at her own personal safety in Iraq are well understood although I do not give much weight in context to the other factors she mentions.  I am also conscious of the particular difficulties this Appellant has in light of his nationality in terms of his ability to make an out-of-country application for entry clearance as a spouse.  However, I simply do not believe, as he claims, that if he returns to Iraq he will effectively thereafter be ‘landlocked in’ forever.  I do not accept that he cannot obtain replacement papers from Egypt and indeed, for the purposes of return from the United Kingdom would inevitably be provided with travel documents to facilitate same.  He has his birth and educational certificate and his father’s death certificate available, so I see no reason why, if necessary, postal entry clearance facilities should not be availed of.  There may be some delay involved, but I see no reason why the Appellant should be entitled to queue jump other such applicants to enter the United Kingdom.”

7.	He dismissed the human rights appeal.  We note the language used for the conclusion that family life existed.  The appropriate standard of proof where no risk is being assessed is the balance of probability.  Family relationships may or may not be a risk factor for asylum or Article 3 or 8 cases.  Some Article 8 cases are concerned with the risk of a breach of human rights on return.  But where the issue is whether or not family life has been established in this country for the purposes of seeing whether the interests of immigration control outweigh it, the standard of proof for its establishment is that of the balance of probabilities and not a reasonable degree of likelihood, let alone, as we have sometimes seen it, a real risk that someone was married.  It may mean that one case gives rise to two different standards of proof for one factor depending on the issue to which that factor is relevant.

8.	Ms Weston, for the Appellant, put her case to some extent in a different way from that set out in the grounds of appeal.  But all the points which she raised went only to the human rights appeal;  the grounds had expressly disclaimed a challenge to the asylum decision.  She said that the Adjudicator had ignored a short but important piece of background evidence about the ease with which a Palestinian, who was not a national of Iraq, could travel from Iraq to Jordan in order to make an application for entry clearance.  This showed that there were very real doubts about whether Jordan would let him in for that or indeed any purpose.  There was no evidence to support the Adjudicator’s finding that they could make such an application from Jordan anyway.  It was for the Secretary of State to show that the interference with family life was justified and as part of his case was that it was proportionate to return the Appellant because he could make an application for entry clearance, it was for the Secretary of State to show that he could in fact do so.

9.	Ms Sigley, for the Secretary of State, submitted that the Adjudicator’s conclusions were justified on the evidence and that in fact he was right to say that non-Iraqi nationals who were habitually resident in Iraq were permitted by the United Kingdom to make applications for entry clearance in another country, Jordan, as were Iraqis.  Importantly, she pointed out that the Adjudicator was wrong in his apparent assumption in paragraph 23 that a postal application could be made.  That was not so.  But the onus was on the Appellant to show that he could not gain entry to Jordan for those purposes, bearing in mind that the assumption behind his being back in Iraq was that he would have had papers issued by the Iraqi authorities enabling him to return.  It would be for him to show that he could not obtain the necessary papers for such travel, if those upon which he would be returned would not suffice.

10.	Ms Weston also sought to raise the delay between the claim and the decision, not just as a factor which told in favour of her case, but as one which of itself showed the decision to be disproportionate.  She cited Shala v SSHD [2003] EWCA Civ 233, [2003] INLR 349.  The Appellant had a legitimate claim when he arrived and if it had been dealt with timeously, he would have had some relief which would have meant that he could have applied in-country for entry clearance.  She was unable to point to any policy concerning Iraqi residents in 1999 or later.

11.	Ms Sigley submitted that the Shala point had not been raised in any ground of appeal, which is true, and that it had not been argued before the Adjudicator, which is also true.  If he had had leave of some sort at the time of the engagement he would not have had it at the time of marriage;  the engagement occurred after the war in Iraq.

12.	We point out that that case was considered in Janjanin v SSHD [2004] EWCA Civ 448, [2004] Imm AR 264, and comments were made of general relevance as well as others relevant to the position of the particular group of asylum claimants.  Shala was also considered in DM (Proportionality-Article 8) Croatia CG* [2004] UKIAT 00024, [2004] Imm AR 211 and J (Serbia and Montenegro) 2004 [UKIAT] 00016.  There have been many others as well.  Shala should not be cited on its own without reference to the later consideration of its significance.

13.	We consider that the Adjudicator made a material error of law.  He assumed that there was the facility for a postal application for entry clearance to be made through Jordan.  This would have affected his consideration of the travel difficulties which the Appellant might face in reaching Amman to make a personal application or to attend interview.  Ms Sigley told us and we accept, it is not disputed, that as a matter of fact that is wrong.  Applications have to be made in person or at least in such a way that an interview takes place and so the ability to travel to Amman becomes critical.  This is an example of an error of fact which is an error of law.  This point had been made clear in MN (Entry clearance facilities-Availability) Iraq CG [2004] UKIAT 00316, a case which concerned an Iraqi national, decided after the Adjudicator’s determination.

14.	The Adjudicator did not err in concluding that a Palestinian habitual resident of Iraq could make a visa application through Jordan.  True, the source of that has not been identified but as we are accepting the truth of what we were told about the need for personal attendance at Amman for entry clearance, we see no reason to reject the confirmation which we received that such Palestinians could also apply through Amman.

15.	Had the Adjudicator realised the true position namely that personal attendance was required, he might have considered the background evidence as to the difficulties of travel for Palestinians to Jordan.  This, albeit brief, was contained in the June 2003 Report from the Arab Commission for Human Rights.  Only 100 or so out of 1000 or so Palestinians who had sought entry to Jordan from Iraq had been permitted to enter and the rest were in a camp in the open near the border.  It also said that Palestinians were only allowed to travel once a year, which was relic of the former regime’s rules.  We do not consider that the failure to refer to this can of itself constitute an error of law;  there is no evidence that the Adjudicator was referred to this short passage in 130 pages of background material, almost entirely directed to other issues.  It is not an error of law for an Adjudicator not to spot something in such a bundle.  It is for the parties to put forward what they rely on and wish to be taken into account with some particularity and why:  they cannot do so just by submitting a large bundle.

16.	The Adjudicator had no evidence before him as to the documents which the Appellant might have when he returned to Iraq.  He appears to have assumed that the papers upon which he might return would enable him to leave Iraq for the purposes of the application for entry clearance and then to return to await the result.  This would be another error of fact which is an error of law.  The position for Iraqi nationals is clear from MN above.   They can be issued in Iraq with Interim Travel Documents or with a passport which will be valid for travel to Jordan, which does not require a visa for Iraqis.  But those documents are not issued in the United Kingdom because there is at present no consular facility.  It follows that the return of an otherwise undocumented Iraqi is based upon a one way travel document;  a Palestinian will not be in a better position.  Therefore the document will not suffice for onward travel to Jordan for the purposes of making a visa application.  The background material, limited as it is, suggests that Palestinian habitual residents are restricted in their travel potential by both Iraq and Jordan.

17.	The alternative suggestion of obtaining Egyptian papers, even if they could be obtained, is no basis for a conclusion that they would permit the Appellant to travel from Iraq to Jordan and back again.

18.	In view of the two errors of law, we are entitled to look at the up to date position before us in assessing the continuing lawfulness of the decision to return the Appellant and whether it would instead involve a disproportionate interference with his Article 8 rights.  He is now married and his wife is expecting a baby in the not too distant future.  So the degree of interference would be that much greater than considered by either the Secretary of State or the Adjudicator.

19.	We also need to consider what the evidence shows about the practicability of actually making an application for entry clearance.  We emphasise that point, because the aspect of immigration control with which the Adjudicator was concerned was not that the application would lack merit, but that the Appellant should not jump the queue for entry clearance.  In effect, that would show that the system for entry clearance need not be applied if someone arrived in the United Kingdom and then made a human rights appeal against his removal when there were Immigration Rules which governed his case.  However, such an approach does assume that the Appellant can at least apply to join the queue by making an application.  The assessment of proportionality under Article 8 may differ if the removal prevents an application being made.  The queue jumping point then becomes entirely misleading.  So there are two factors for us to consider which were not dealt with by the Adjudicator, both of which assist the Appellant.

20.	Ms Sigley endeavoured to deal with the second point as to the ability of the Appellant to travel to Amman by reference to the burden of proof which she said lay upon him to make out his case.  We do not accept the way she put it.  We accept that it is for the Appellant to show that Article 8 is engaged and that the action of the Secretary of State would interfere with it.  The Secretary of State then shows that the interference is lawful and is in pursuance of the interests of immigration control.  It is then for the Appellant to show that the interference is disproportionate to that interest.

21.	But where the point at issue is one which goes to the extent or nature of the public interest involved in immigration control, it is for the Secretary of State to make out his point.  It is the Secretary of State’s contention that the interests of the system of immigration control require this man to make an application for entry clearance in his country of habitual residence and to return there for that purpose.  It is implicit at least in that contention that the Secretary of State contends that the FCO provides the facility and that the Appellant would not be prevented by the authorities of Iraq or Jordan from applying.  It is for him to make out his implicit contention rather than for the Appellant to show the contrary.  On the material before us, there is no basis for concluding that the Appellant would ever actually be able to make the application for entry clearance.  This conclusion on the state of the evidence before us does not preclude a different decision on the basis of different evidence.

22.	This is not to say that the Secretary of State will always bear the burden of proof on a point of practicability.  If, for example, a claimant says that the impediment to an application is his own unwillingness or inability to travel for personal reasons eg fear of flying or cost of travel, it will be for the claimant to make out his contention, and its significance.

23.	It does not inevitably follow from the fact that the making of an entry clearance application may well not be a practicable proposition, that it is disproportionate to return someone.  It is a factor which goes into the balance.  But, the force of the relevant interest of immigration control in an orderly system of entry clearance is weakened where no application for entry can practicably be made, in a category of case contemplated by the Immigration Rules.  Its effect depends on the interests which are interfered with by removal.  Family life involving a young child is a very important point, as is the fact that the application, if made, would fall within a category recognised by the Rules.  We are not directly concerned with the merits because that would be for entry clearance but it is relevant that no grounds are put forward which suggest that a marriage application would be unsuccessful.  So the interest in removing someone who could not practically make an application for entry clearance, which, if made, could well succeed, has to be quite strong where the failure to follow proper procedures, rather than a substantive point, is the immigration control interest relied on to support the interference with family life.

24.	If entry clearance was not likely on its merits, we would regard any impracticability in the making of such an application in a very different light.  It would be perverse in general to regard that as a reason for not insisting on the maintenance of the substance of immigration control.

25.	In view of our conclusion that the Adjudicator has made material errors of law and in view of the additional material which we have and the change of circumstances, we now have to make up our own minds as to the lawfulness, the proportionality, of return.  We accept that the wife entered into the marriage with her eyes open, and then conceived when her husband’s position was yet more precarious.  The engagement preceded the Secretary of State’s decision but came after the invasion of Iraq and the removal of Saddam Hussein, which would clearly put a different complexion on the asylum claim as its failure now shows.  We agree with the Adjudicator that it is only the security situation in Iraq which is significant in preventing the wife going there.  All the other factors, language, family and social conditions were factors which represent the consequences of her choice of husband.  They cannot impose their choice of residence upon the United Kingdom for those reasons.  However, they are now married;  the wife is pregnant, and there is an established close family life.

26.	We recognise the delays in the Secretary of State’s decision making process and the common consequence that young people will form serious relationships which may become marriages.  That is a relevant factor even without the special factors of the Shala case.  We do not regard this case as equivalent to Shala on the material we have about the grant of leave to those leaving Iraq.  If there had been a grant of leave to remain of some sort in 1999 or 2000, it might well have expired even before the engagement and we are not prepared to assume that it would have been long enough to permit an in-country marriage application.

27.	We accept on the evidence that the Appellant is unlikely to be able to make an application for entry clearance for an indefinite period, with the result that there would be a long term or permanent rupture in both the marriage and in the relationship with his child-to-be.  This is not a case where the wife could be expected to go with the husband of her choosing, because of the security situation which is very difficult, and the more so for a Palestinian with no nationality.  The interference would be very substantial, potentially permanent and wholly destructive of the relationship with wife and child to be.  Such a relationship, though begun when the Appellant’s status was uncertain and strengthened as it became more precarious, was a likely accompaniment to the Secretary of State’s delays.

28.	This substantial and destructive interference would not be imposed because the Appellant’s case to live here with his wife lacked merit under the Immigration Rules but because he was not complying with the perfectly proper procedure requirements.  It is wholly reasonable generally to return people for that procedural reason.  But this is very different.  The Appellant arrived with a legitimate asylum claim, as the Adjudicator found it then was.  He then formed a relationship in a very prolonged period of delay in Secretary of State decision-making.  That relationship is now the basic unit of family life, husband and wife, with a child an imminent addition.  His application, if he could make it, would have good prospects.  If returned because the marriage application should be made and considered out-of-country, he could not comply with the procedures, for reasons entirely beyond his control and due to the United Kingdom’s lack of the relevant facilities abroad.  The rupture could be very severe.  The system of control is not maintained in all these circumstances by removal to pursue an application which cannot be pursued.

29.	We have come to the conclusion that whether the question is whether a reasonable Secretary of State could regard it as proportionate to remove the Appellant on these facts, or whether this is one of those small number of exceptional cases in which the interests of immigration control are overridden by the degree of interference with Article 8, we should allow this appeal.

30.	This case is reported for what we say about the various burdens of proof, as a tailpiece to MN dealing with Palestinians returning to Iraq, and our comments on proportionality.

MR JUSTICE OUSELEY
PRESIDENT