MS v The Entry Clearance Officer, Addis Ababa

A refusal of spousal entry clearance under an age requirement may interfere sufficiently with family life to engage article 8, even where the couple can meet only through visits in a third country. The interference is nevertheless in accordance with the law where the applicable Immigration Rules are publicly accessible and sufficiently precise; personal ignorance of the rule is not decisive.

Proportionality requires a fact-sensitive balance between immigration control, including the policy of discouraging forced marriage, and the practical ability of the couple to maintain family life elsewhere pending eligibility under the Rules. A temporary requirement to maintain the relationship through visits may be proportionate where there are no demonstrated obstacles to those visits.

The appellant, a Somali national, applied for entry clearance to join her Somali husband in the United Kingdom. The application was refused because she was under 21 and did not meet paragraph 277 of the Immigration Rules. The refusal was also challenged under article 8 of the European Convention.

An Immigration Judge dismissed the appeal under the Rules and on human-rights grounds. Permission to appeal was granted only on article 8. The Upper Tribunal had already set aside the First-tier Tribunal’s article 8 decision for error of law and remade that decision on the evidence.

The central issue was whether maintaining the age-based refusal was a lawful and proportionate interference with the spouses’ family life.

1. The appeal was dismissed on article 8 grounds. The Upper Tribunal set aside the First-tier Tribunal’s earlier human-rights decision for error of law and remade it, but reached the same ultimate result on the human-rights claim.

2. Applying the five-stage approach in R v SSHD ex parte Razgar [2004] UKHL 27, the Tribunal found that the marriage was genuine and that the spouses enjoyed family life within article 8(1). The sponsor’s relationships with his mother, brother, nephew and cousins did not amount to article 8 family life because the evidence showed no dependency beyond normal emotional ties.

3. The refusal had consequences sufficiently grave to engage article 8. It required the spouses to maintain family life in Ethiopia, where neither held immigration status, rather than in the United Kingdom, where the sponsor had limited leave as a refugee.

4. The interference was nevertheless in accordance with the law. Paragraph 277 of the Immigration Rules was publicly accessible and sufficiently precise. Article 8 does not require proof that the sponsor actually knew of the age restriction. It was reasonable to expect him to make enquiries, and if necessary obtain advice, before marrying and applying for entry clearance.

5. Applying the proportionality guidance in EB (Kosovo) [2008] UKHL 41 and Huang [2007] UKHL 11, the Tribunal gave weight to immigration control and to the policy of discouraging forced marriages. The marriage was not forced, but that did not remove the public interest. The sponsor had previously visited and lived with the appellant in Ethiopia, had secured accommodation there, and had not shown practical obstacles to further visits before she reached 21. The temporary separation and concerns about its effect on the relationship did not outweigh the public interest.

• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal set aside the First-tier Tribunal’s article 8 decision for error of law and remade the decision, dismissing the human-rights appeal.
• First-tier Tribunal: Immigration Judge Blake dismissed the appeal under the Immigration Rules and on human-rights grounds. Permission to appeal was limited to article 8.