Entry Clerance Officer, Chennai v Erandathi Lakmini Chandrasena Aswatte

Where a refugee with limited leave cannot return to the country of origin to marry, and no realistic or reasonable third-country alternative is shown, exclusion of a genuine post-flight fiancé(e) may be disproportionate under Article 8. This is especially so where the applicant satisfies every relevant requirement for fiancé(e) entry clearance except the requirement that the sponsor be settled.

The Immigration Rules’ intended compatibility with human rights does not itself establish that an individual decision made under them is proportionate. The Entry Clearance Officer must justify exclusion as necessary for effective immigration control. The assessment remains individual and requires caution when using Article 8 to address a gap in the Rules.

The Entry Clearance Officer refused the Sri Lankan respondent entry as a marriage visitor. She intended to marry her fiancé, a recognised refugee with limited leave in the United Kingdom, and remain with him there. She could not meet the visitor requirement of an intention to stay for no more than six months, nor the settlement requirement in paragraph 290 of the Immigration Rules.

The First-tier Tribunal allowed her appeal. It incorrectly held that she met paragraph 290 and treated that conclusion as determinative of Article 8. The Entry Clearance Officer appealed. The Upper Tribunal had to decide whether that error was material and, on remaking the decision, whether exclusion was a proportionate interference with Article 8 rights.

1. The Upper Tribunal found a material error of law in the First-tier Tribunal decision. The respondent could not meet paragraph 290 because her fiancé had limited leave and was not settled in the United Kingdom. The First-tier Tribunal’s Article 8 reasoning was also inadequate because it rested solely on the mistaken conclusion that the Rules were met.

2. Remaking the decision, the Tribunal held that Article 8 was engaged and that exclusion pursued the legitimate aim of effective immigration control. However, the fact that the Rules were drafted to be human-rights compliant did not mean that every decision under them was proportionate. The Entry Clearance Officer bore the burden of showing that exclusion was necessary and proportionate, and that a lesser measure would not suffice.

3. The Tribunal applied by analogy the reasoning in FH (Post-flight spouses) Iran [2010] UKUT 275 (IAC). A refugee cannot ordinarily return to the country of origin to marry. A requirement to marry and live in a third country may also be unreasonable where no realistic country is identified and the course would cause substantial uncertainty, expense, delay and further immigration applications.

4. The respondent was in a genuine, long-standing relationship with the refugee sponsor. The parties intended to marry and live together permanently. She met the other material requirements of paragraph 290, including adequate maintenance and accommodation without recourse to public funds. No cogent justification for excluding her was advanced.

5. The Tribunal therefore substituted a decision allowing the underlying entry-clearance appeal and directed that entry clearance in the usual form be issued. It added that each case requires an individual assessment and that the Secretary of State should urgently consider amending the Rules concerning fiancé(e)s of refugees with limited leave.

• Upper Tribunal (Immigration and Asylum Chamber): Found a material error of law in the First-tier Tribunal’s determination and substituted a decision allowing the respondent’s entry-clearance appeal.
• First-tier Tribunal: Immigration Judge Kanagaratnam allowed the respondent’s appeal in a determination issued on 29 December 2010. The judge wrongly treated paragraph 290 of the Immigration Rules HC395 as satisfied and allowed the appeal under Article 8 on that basis.