UK - Upper Tribunal, 2 December 2011, Entry Clearance Officer (Chennai) v Erandathi Lakmini Chandrasena Aswatte, [2011] UKUT 0476

Country of Decision:
Country of Applicant:
Date of Decision:
02-12-2011
Citation:
[2011] UKUT 0476 (IAC)
Court Name:
Upper Tribunal (Immigration and Asylum Chamber)
National / Other Legislative Provisions:
UK - Immigration Rules - Para 41
UK - Immigration Rules - Para 56D
UK - Immigration Rules - Para 290 HC 395
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Headnote: 

In this case the Tribunal considered the situation of refugee’s fiancé(e)s, who are not covered by the provisions relating to spouses and children. In general their exclusion is unlikely to be proportionate and their claim should succeed under Art 8 of the European Convention on Human Rights (ECHR).

Facts: 

The applicant applied to join her fiancé who has been granted asylum in the UK and who has limited leave to remain. She applied to enter the UK as a visitor and was refused a visa. By the time the matter came before a Senior Immigration Judge in the Upper Tribunal it was common ground that she could not succeed under the Immigration Rules because her refugee fiancé only had limited leave to remain in the UK. She continued to rely on Art 8 and 12 of the ECHR. The question was whether the refusal of a visa and permission to enter the UK was proportionate.

Decision & Reasoning: 

The Entry Clearance Officer maintained that the Immigration Rules were compliant with the Human Rights Act 1998, which incorporated the ECHR into UK law and so no decision made within those rules could be in breach of human rights law. The Court pointed out that while the Rules were drafted with the intent of being compliant it did not follow that decisions made pursuant to the rules were therefore compliant. The general situation of refugees and the particular circumstances of the couple were considered. All the requirements for a visa, but that the fiancé should be settled, were satisfied and the Entry Clearance officer’s representative could offer no cogent reason why the fiancée’s exclusion, with its consequences for her and her intended husband’s family life, would be proportionate. In a head note the Tribunal stated that generally if a refugee’s fiancé(e) met all the requirements of entry, save that relating to settlement, it is unlikely that it will be proportionate to refuse the admission of the fiancé(e).

Outcome: 

The appeal was allowed.

Observations/Comments: 

The Tribunal recommended that urgent consideration should be given to amending the Immigration Rules.

There has been no change in the rules to date (2nd February 2012).

Case Law Cited: 

UK - Chikwamba (FC) v. Secretary of State for the Home Department, [2008] UKHL 40

UK - FH (Iran) v. Entry Clearance Officer, Tehran, [2010] UKUT 275 (IAC)

UK - KA (Pakistan) [2006] UKAIT 00065

UK - MS (AS & NV considered) Pakistan [2010] UKUT 117 (IAC)