Court of Appeal

Published January 4, 2008

AB (Jamaica) v Secretary of State for the Home Department

Before Lord Justice Sedley, Lord Justice Thomas and Sir Peter Gibson

Judgment December 6, 2007

A spouse who had married an overseas overstayer was entitled to have his right to a family life to be taken into account, although he was not a formal party to the proceedings seeking the removal of the overstayer.

The Court of Appeal so held, allowing the appeal of the claimant, AB, against the dismissal by the Asylum and Immigration Tribunal of her appeal against the refusal by the Secretary of State for the Home Department, on September 8, 2004, of her application for leave to remain on the ground of her marriage.

Mr Jonathan Adler for AB; Mr Parishil Patel for the Home Secretary.

LORD JUSTICE SEDLEY said that the claimant, a Jamaican citizen, came to this country in September 1998 on a six-month visitor’s visa. She overstayed. In June 1999 she was joined by her daughters.

She met a British citizen whom she married in July 2001. He was born in this country and had lived here all his life.

Two months later the claimant applied to the Home Office for leave to remain on the basis of her marriage. Almost three years later a reply came, refusing the application.

In Januzi v Secretary of State for the Home Department (The Times February 16, 2006; [2006] 2 AC 426) the House of Lords detailed what had to be established before an asylum-seeker could be expected to relocate in his or her country of origin.

It showed the specificity with which a fact-finding tribunal had to consider whether undue hardship would be created by an enforced removal, a question which was also critical to DP 3/96, the Home Office policy which applied to this case, and to article 8 of the European Convention on Human Rights, guaranteeing the right to a family life.

Adapting that reasoning to a case such as the present, the tribunal would be deciding whether to force someone lawfully settled here to choose between losing his family or migrating with them to a country which might not be his own.

In the word “settled” DP 3/96 included both British citizens living in the United Kingdom and nationals of other countries with indefinite leave to enter or remain.

Depending on the particular case, there could be a world of difference between expecting a foreign national, although settled here, to return with his family to his country of origin and expecting a British citizen who had lived here all his life and had an inalienable right of abode here, to live and work and find accommodation in another country or else forfeit his marriage.

In substance, though not in form, the claimant’s husband was a party to the proceedings. It was as much his marriage as hers which was in jeopardy, and it was the impact of removal on him rather than on her which, given the passage of time since the marriage, was critical. His Convention rights were as fully engaged as hers.

It could not be permissible to give less than detailed and anxious consideration to the situation of a British citizen who had lived here all his life before it was held reasonable and proportionate to expect him to emigrate to a foreign country in order to keep his marriage intact.

The tribunal gave no consideration to those matters.

The determination was further flawed by its failure to take into account in assessing the proportionality of removing the claimant the fact that the executive as a matter of policy did not regard an overstayer in a qualifying marriage as ordinarily liable to removal if the settled spouse could not reasonably be expected to go also.

Lord Justice Thomas and Sir Peter Gibson agreed. Solicitors: Ikie, Lewisham; Treasury Solicitor.

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