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

A relationship outside marriage does not automatically acquire the status of a relationship akin to marriage merely because the parties have cohabited or maintained a long relationship. A claimant relying on an immigration policy requiring two years’ prior cohabitation must provide clear evidence that the relationship had the required quality before enforcement action began. Under Article 8, requiring a person unlawfully present to leave and apply for entry clearance may remain proportionate despite a genuine long-term relationship and obstacles to the partner relocating abroad. Relevant factors include the claimant’s insecure immigration status, the absence of children requiring both parents’ presence, the absence of a legitimate expectation of admission, the partner’s health, and the anticipated length of separation.

The claimant, a Turkish national, sought judicial review of decisions refusing representations that he should be allowed to remain in the United Kingdom with his British partner. His asylum claim had been rejected and enforcement action had begun in 2003. He relied on an unmarried-partners policy and on Article 8 of the European Convention on Human Rights.

The central issues were whether the evidence established the policy requirement of two years’ cohabitation in a relationship akin to marriage before enforcement action, and whether removal to Turkey to seek entry clearance would be disproportionate.

1. The claim was dismissed. The evidence did not show clear cohabitation as a couple in a relationship akin to marriage for two years before enforcement action commenced on 12 June 2003. A boyfriend-and-girlfriend relationship, periods of cohabitation and the commencement of a relationship did not by themselves satisfy the policy. The relationship appeared to have acquired the necessary mutual commitment only around the engagement in July 2002, too late to meet the policy requirement.
2. The claimant therefore had no legitimate expectation of favourable treatment under the unmarried-partners policy, the immigration rules or any alleged practice arising from delay.
3. Article 8 was engaged, but the circumstances did not make removal disproportionate. The relationship was genuine and long-standing, and it would be unreasonable to expect the British partner, who had no connection with Turkey and had significant health and family circumstances in the United Kingdom, to relocate there. Those matters did not themselves prevent the claimant from returning to Turkey to seek entry clearance.
4. The court considered Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 and VW (Uganda) v Secretary of State and Others [2009] EWCA Civ 5. The guidance was fact-sensitive. This case lacked the especially compelling features present in Chikwamba, including a child and the claimant’s refugee status. Article 8 did not require insurmountable obstacles before it was engaged, but the obstacles here did not make the entry-clearance requirement disproportionate.
5. The anticipated application process was short and there were no formal obstacles to entry clearance. If the relevant facts were established, deliberate delay or reliance on irrelevant discretionary factors should not determine the application against the claimant. The application was dismissed, with the Secretary of State’s costs subject to detailed assessment and enforcement only with leave of the court.