Kiche, R (On the Application Of) v Secretary of State for the Home Department

Article 8 does not ordinarily entitle a person seeking to join a spouse or fiancée in the United Kingdom to bypass the ordinary entry-clearance procedure. Removal may proceed where the individual can obtain the necessary travel documentation and make the appropriate entry-clearance application from abroad. A challenge based on the absence of travel documents fails where the evidence shows that the documents can be issued, subject to the relevant authorisation and eligibility criteria.

The claimant challenged the Secretary of State’s decision of 28 March 2002 concerning his proposed removal to Greece. The Secretary of State had certified his Article 8 claim as manifestly unfounded under section 72(2)(a) of the Immigration and Asylum Act 1999. The claimant argued that removal should not take place because he lacked proper travel documents and because removal would separate him from his spouse or fiancée following a religious, but not civil, ceremony. The Administrative Court considered whether those grounds justified permission or relief.

1. The application was dismissed. The claimant did not attend and provided no explanation for his absence.
2. The travel-document ground was wholly without foundation. Evidence established that a GV3 could be issued, subject to authorisation from the policy section of UK Visas. UK Visas would normally provide that authorisation if the claimant fulfilled the criteria for entry clearance.
3. The Article 8 ground was wholly without merit. The claimant had no proper basis for avoiding the ordinary requirement to apply for entry clearance on returning to Greece.
4. The court treated the Court of Appeal’s decision in Ekinci v The Secretary of State for the Home Department [2003] EWCA 765 as confirming that position in the context of removal of a Turkish national to Germany under the European Convention.
5. The Secretary of State’s conclusion that the Article 8 claim was manifestly unfounded under section 72(2)(a) of the Immigration and Asylum Act 1999 was not displaced.

Permission had previously been refused in writing by a single judge. The present application was subsequently heard in the Administrative Court and dismissed.