Ortega- Jerez v Entry Clearance Officer

An appellate court may adjourn an immigration appeal where its central issues concern matrimonial law and conflict of laws and require determination by a specialist court. The appeal should not be treated as academic merely because the appellant has subsequently obtained temporary immigration leave, where the issues may recur when that leave expires or in other cases. A possible issue concerning the validity in United Kingdom law of a consular marriage may be considered despite an alleged concession or abandonment of the point, particularly where the appeal is being stood over to allow proper consideration.

The appeal was brought from the Asylum and Immigration Tribunal (AIT No: OA/35106/2008) in an immigration dispute concerning the appellant’s entry clearance as a spouse. After permission to appeal, the appellant was lawfully admitted to the United Kingdom on a 27-month multiple-entry spouse visa. The respondent submitted that the appeal had consequently become academic.

During the hearing, the court concluded that the case centrally involved matrimonial law and conflict of laws. It also identified a potentially material issue under the Marriage Act 1949 concerning a marriage celebrated at the Ecuadorian consulate. The central procedural question was whether the appeal should be determined by the Court of Appeal as constituted or adjourned for consideration by a specialist court.

1. Academic issue. The court rejected the submission that the appeal had become academic because the appellant had obtained lawful admission on a 27-month multiple-entry spouse visa. The issues remained sufficiently live because they might arise again when the visa period ended and might recur in another case.
2. Nature of the dispute. Although the appeal had been presented as essentially an immigration case, the court considered that its central issues concerned matrimonial law and conflict of laws. Determining the appeal without adequate consideration of those ramifications risked an insufficiently broad and informed judgment.
3. Specialist forum. The court considered it preferable for the appeal to be heard by a specialist court presided over by the President of the Family Division. The hearing was therefore adjourned for determination by a differently constituted court.
4. Marriage validity issue. The effect of the Marriage Act 1949 on the consular marriage in Ecuador’s consulate might be material to the appeal. The court declined to treat the respondent as bound by an alleged abandonment of the issue concerning validity in United Kingdom law. The appellant’s concern that the point had been raised late would not prejudice the adjournment, since the case would stand over and there would be time for proper consideration.
5. Order. The appeal was stood over undetermined, with the date to be fixed. The formal order was that the application be adjourned.

• Court of Appeal (Civil Division): The appeal from the Asylum and Immigration Tribunal was not determined. The court rejected the academicity objection and adjourned the matter to be heard by a differently constituted specialist court.
• Asylum and Immigration Tribunal: Appeal source identified as AIT No: OA/35106/2008; the judgment gives no further citation or outcome.