Gherson success in appeal involving unmarried partner's policy

Solicitors at Gherson have secured a successful result in an appeal against a decision to remove one of their clients from the UK. The Secretary of State has not made any application for reconsideration of the determination allowing Gherson’s client’s appeal.  

Gherson represented the unmarried partner of a UK national who had first entered the United Kingdom in October of 2001.  He apparently asked for leave to enter as a visitor but this request was refused.  Instead he was given temporary admission until a date in November of 2001 when he was told to return to the airport in order to fly home.  He did not go to the airport on this date and was told to attend an interview in December of 2001.  He did not do so and in December of 2001 he was refused leave to enter after he failed to attend an interview.   He began his relationship with his British spouse in 2002, and they began to live together in February of 2005.  In March of 2006 they had a child.  

In August of 2007 Gherson’s client applied for leave to remain in the UK as the unmarried partner of a UK national, referring the Secretary of State to her policy relating to the removal of people who were the unmarried partners of UK nationals.   In December of 2007 the Secretary of State refused the application and directed the client’s removal.  There was no reference to the unmarried partners’ policy in the refusal letter.  

The case succeeded due to the Secretary of State’s failure to apply her own policy.  Under this policy where a person who did not have leave to remain in the UK was involved in a genuine and subsisting relationship with a UK national for more than two years before “the commencement of enforcement action” and where it was unreasonable to expect the UK national to accompany the person upon his or her removal – it would not be appropriate to begin enforcement action.   

The Immigration Judge found that the policy did apply on the facts as she found them to be – there was no challenge to the genuineness of the relationship, and the UK national’s family and other commitments in the UK made it impossible or at least unreasonable for her to accompany her partner upon his removal.  Since the Secretary of State had not applied her own policy her decision was “not in accordance with the law”.   In these circumstances the Asylum and Immigration Tribunal has to allow the appeal due its jurisdiction conferred by section 86 (3) (a) of the Nationality, Immigration and Asylum Act 2002.

Where an Immigration Judge finds that an immigration decision is not in accordance with the law because the decision taker did not consider an applicable policy this often has the curious consequence that although the appeal against it is allowed – the successful Appellant doesn’t actually get any leave to remain but instead has to wait for the Secretary of State to make a new decision which does take account of the policy.  

Fortunately in this case the Immigration Judge was urged to go on and to consider the client’s rights to family life which were protected by Article 8 of the European Convention on Human Rights.  She found that the decision did interfere with the client’s right protected by Article 8 (1) and that the interference was not justified by the demands of immigration control (Article 8 (2)).  In reaching this decision the Immigration Judge noted that:

“If the policy had been properly applied it is likely that it would have resulted in a presumption in favour of the non-removal of the appellant.”

This is a decision which shows the practical approach to rights protected by Article 8 which the Secretary of State used to adopt before the Human Rights Act 1998 came into force in October of 2000, although the policy continued to be operational after October 2000.  The policy is similar to DP3/96, which was recently considered by the Court of Appeal in AB (Jamaica) v Secretary of State [2007] EWCA Civ 1302 (6-12-2007).  In that case the Court of Appeal decided that in considering whether it is reasonable for the UK national partner of a person to accompany his or her spouse upon his or her removal the test to be applied is whether it is “unduly harsh” to expect that person to leave the UK and go and live in their spouse’s home country.  This test would be relevant both to decision makers when applying DP3/96, and to the Asylum and Immigration Tribunal in considering appeals against removal where it was claimed that the decision breached the Appellant’s rights protected by Article 8.  

The unmarried partner’s policy and DP3/96 were both considered by the Asylum and Immigration Tribunal in BP (DP3/96 – Unmarried Partners) Macedonia [2008] UKAIT 00045, which was heard by the Tribunal in January of this year but only notified earlier this month (on 14-5-2008).  The Tribunal found that DP3/96 did apply in the Appellant’s case and allowed the appeal – directing that the Secretary of State should grant the Appellant three years’ discretionary leave to remain in the UK.  

Unfortunately the value of the determination in BP (Macedonia) was short lived.  In a statement to parliament on 24 April of 2008 Liam Byrne MP, the immigration minister, announced the withdrawal of both DP3/96 and of the unmarried partners’ policy under which Gherson’s client succeeded in his appeal.  

Current guidance (contained in paragraph 53 of the UK Borders Agency’s Enforcement Instructions and Guidance) does however state that where consideration of enforcement action began before the policies were withdrawn – the consideration will continue as if the policy were still in force.

Clearly Gherson is well placed to provide experienced professional advice to anyone who is involved in a relationship with a UK national and who is seeking to regularise his or her immigration status in the UK.