Ekinci, R (on the application of) v Secretary of State for the Home Department

A person who lacks leave to enter or remain will ordinarily be required to leave the United Kingdom and seek entry clearance from abroad, even where a genuine marriage and family life exist. Exceptional circumstances may justify a different course.

Whether the person will ultimately satisfy every entry-clearance requirement need not be determined before removal. The application may be considered outside the Immigration Rules where human rights require it. Immigration history, including evasion and dishonesty, is relevant to the proportionality balance under article 8.

A human-rights claim may be certified as manifestly unfounded where the Secretary of State is reasonably and conscientiously satisfied that it is clearly without substance and any appeal would be bound to fail.

The appellant, a Turkish citizen, claimed asylum in the United Kingdom after previously making unsuccessful asylum claims in Germany. Germany accepted responsibility for his claim under the Dublin Convention. While removal proceedings were pending, he married a British citizen and they had a child.

The Secretary of State accepted that removal to Germany would interfere with family life but considered the interference proportionate and temporary. He certified the appellant’s article 8 allegation as manifestly unfounded under section 72(2)(a) of the Immigration and Asylum Act 1999, thereby excluding an appeal under section 65. Roderick Evans J dismissed the appellant’s judicial review challenge.

The central issue on appeal was whether certification was lawful where the appellant asserted that he could not satisfy the financial requirements for entry clearance and might therefore face more than a temporary separation from his family.

1. Appeal dismissed unanimously. Simon Brown LJ, with whom Kay LJ and Bodey J agreed, held that the Secretary of State was entitled both to direct the appellant’s removal to Germany and to certify his article 8 allegation as manifestly unfounded.

2. Under section 72(2)(a) of the Immigration and Asylum Act 1999, certification is permissible where the Secretary of State, after reviewing the material, is reasonably and conscientiously satisfied that the allegation must clearly fail. The equivalent formulations are that an appeal would be bound to fail or that the allegation plainly contains nothing of substance. The court followed the approach authoritatively stated in Thangarasa [2002] 3 WLR 1276.

3. Whether the appellant would ultimately satisfy the requirements for entry clearance was immaterial at the removal stage. It would be anomalous if a person became more readily excused from applying abroad as his ability to satisfy the Immigration Rules diminished. The entry-clearance decision belonged to the appropriate decision-maker when an application was made. Any article 8 claim could then be considered, including through a discretion to admit outside the Rules and, if entry were refused, through the available appellate jurisdiction.

4. A person without leave will ordinarily be required to return abroad to obtain entry clearance despite a subsisting marriage, unless exceptional circumstances exist. Shala [2003] EWCA Civ 233 illustrated such circumstances because administrative delay had deprived the claimant of a probable opportunity to apply from within the United Kingdom. No comparable feature existed here.

5. Immigration history is relevant when balancing family-life rights against the public interest in effective immigration control. Human rights are not rewards for good conduct, but prolonged evasion and dishonesty may properly inform proportionality. Requiring a short return to Germany discouraged circumvention of the entry-clearance system and did not contemplate permanent or long-term family separation. The article 8 challenge was therefore bound to fail.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2003] EWCA Civ 765.
2. High Court, Administrative Court: Roderick Evans J dismissed the judicial review challenge on 23 October 2002. No citation is stated in the judgment.