Guluzar Agcadag v. Immigration Officer Stansted Airport and Secretary of State for the Home Department

Guluzar AGCADAG
Appellant
and
Immigration Officer - Stansted Airport
First Respondent
and
Secretary of State for the Home Department
Second Respondent

THE ASYLUM AND IMMIGRATION APPEALS ACT 1993

Before:

Mr J.A. O'Brien Quinn

Special Adjudicator

at HATTON CROSS

REASONS AND DETERMINATIONS

This is an appeal against the decision of the first respondent dated, 18 November 1993, refusing the appellant leave to enter the United Kingdom as the spouse of Mr. Ali Agcadag as, under the Immigration Rules, she was required to have an entry clearance for that purpose and against the decision of the Secretary of State, the second respondent who, in his letter of 16 November 1993, has certified that the appellant's claim that her removal from the United Kingdom would be contrary to the United Kingdom's obligations under the Convention was without foundation, as it did not raise any issue as to the United Kingdom's obligations under the Convention. Accordingly, the matter fell for decision under the provisions of paragraph 5, of the Second Schedule to the Asylum and Immigration Appeals Act 1993.

The appellant appeared in person at the Hearing on 16 December 1993, and was represented by Ms S. Harrison, of Counsel, instructed by Messrs. Wilson & Company, Solicitors, while the respondent was represented by Ms K. Harper, Home Office Presenting Officer, while Ms Boratac acted as interpreter in the Turkish language.

The United Nations High Commissioner for Refugees had been notified of this appeal, but he did not apply to be made a party, and he did not make any submissions.

The appellant, a citizen of Turkey, born on 10 October 1973, applied for an entry clearance to visit the United Kingdom for 2 weeks, but that was refused on 20 October 1993, in Dusseldorf in Germany. The appellant, however, arrived in the United Kingdom on 13 November 1993, from Germany, and claimed asylum on 14 November 1993. She had been in Germany as a visitor for roughly 1 month where she had a sister, a brother and an aunt resident. She had her husband Mr. Ali Agcadag, living in the United Kingdom, and he had exceptional leave to remain. She also had a brother-in-law living in the United Kingdom. She said that she did not want to go back to Turkey as there were a lot of problems there and some people, whom she thought were the Gendarmes, were asking about her husband and threatening her. She said that she had not been detained, and had not been beaten up but, they had beaten up her husband and detained him. She said that they had threatened her, and her husband's father and mother. She said that she did not want to go back because, as the result of her husband's political activities, they would beat her up and detain her. She said that if she were to be sent back to Germany they would only send her back to Turkey. She said that she wanted to come to the United Kingdom because she wished to join her husband. She said that her elder sister had helped her because she had forced her to do so. The appellant had claimed that she had married her husband in 1988, about a year and a half before he left Turkey, they had lived together for a short time after their marriage and, that her husband had then left because the police were looking for him. She said that he had come to the United Kingdom about 3 years ago, in the spring of 1989.

The circumstances surrounding the appellant's arrival in the United Kingdom were somewhat complicated. When she arrived she requested leave to enter for 1 week to visit her relatives in the United Kingdom and carried a passport in the name of Fatma Aydin, she was travelling with a fellow Turkish national, Sami Aydin, whom she said was her husband. She said that she had been resident in Germany for 6 years, but it was noted that she spoke no German. It was also noted that her passport had been tampered with and contained a substituted photograph. The appellant's travelling companion, later, said that the appellant's true identity was Guluzar Agcadag and that they were not married.

At interview, later, using the services of an official Turkish interpreter, the appellant also said that her real identity was Guluzar Agcadag, she then said that she was coming to the United Kingdom to be with her husband, Ali Agcadag, who had been in the United Kingdom for 3 years. She could, however, provide no evidence of her relationship to her alleged husband, saying, that although they had married in 1988, it was only a religious ceremony and that she held no marriage certificate. She also said that she had applied for a U.K. visa in Dusseldorf, but had been refused. After that refusal, she said that she had arranged for the passport belonging to Fatma Aydin to be altered so that it contained her own photograph by way of substitution, she said that that course of action had been discussed with her husband in the United Kingdom, and said that they had agreed that that was the only course of action. It later transpired that Fatma Aydin is the appellant's sister, and that her travelling companion, Sami Aydin, is her brother-in-law.

On visiting the arrivals concourse, three sponsors came forward who produced documents showing that they had exceptional leave to remain, one of them being Ali Agcadag, who said that he was expecting to meet his wife and Fatma Aydin. He also said that he was not aware that his wife had changed the photograph in Fatma Aydin's passport and denied that he had discussed that course of action with his wife, but said that he had said to her that there were people who used that option as a last resort and also said that he thought that she would be arriving with a visa.

It was noted that the appellant's husband, when he had arrived in the United Kingdom on 25 June 1991, and had claimed political asylum, had completed a self completion questionnaire in which he said that he was single and, that was put to the appellant on re-interview, and she said that she and her husband had discussed that and had agreed that, had he said that he was married, his application for political asylum would not be accepted.

When the appellant was again re-interviewed on 14 November 1993, she said that she was a Turkish national and that her passport was in Germany. At that time, she was refused leave to enter under paragraphs 7, 14, 78 and 86. The appellant's husband then asked the Immigration Officer to speak to a Mr Nafiz of the Kurdish and Turkish Community Centre, who said that the appellant was being removed, despite claiming political asylum. It was pointed out to him that the appellant had not claimed asylum. It was then said by the appellant's husband, that his wife wished to stay with him, that she was to claim asylum and that she must have the same rights as he had.

The appellant was then questioned about the date of her marriage and she said that she had married, in July 1988, whilst her husband was on leave from his military service. She said that he had finished his military service about 4 months after they were married and that he had left to come to the United Kingdom about 18 months after that, which would make his arrival in the United Kingdom in late 1989, or early 1990. The appellant later said that her husband had come to the United Kingdom in spring 1989. In referring to the file for the appellant's husband, in addition to his saying that he was single, his arrival date in the United Kingdom was known to be 25 June 1991. Her husband also said, in his self completion questionnaire, that he started his military service in March 1989, and accounted for 18 months of that service.

In addition, the appellant having arrived from a third country, Germany, where she had been staying for a month, there was great doubt if she was married to Ali Agcadag, both because of his saying that he was single and the discrepancies between the two accounts of his military service. The second respondent, in his letter, of 16 November 1993, asserted that Turkey was not the only country to which the appellant could be removed since she had arrived from Germany where, on her own admission, she had spent 1 month and was, therefore, under the provisions of paragraph 8(1)(c) of Schedule 2 of the Immigration Act 1971, returnable to Germany, which is a signatory to the 1951 Convention Relating to the Status of Refugees. The Secretary of State had, therefore, certified that the appellant's claim to asylum was without foundation. Consequently, the appellant was refused leave to enter the United Kingdom as she did not hold a valid national passport or other documents satisfactorily establishing her identity and nationality.

Notice of Appeal was lodged against that decision on 19 November 1993, the grounds of appeal basically being, that the Secretary of State had failed to have regard to his policy with regard to the admission of the wives of persons living in the United Kingdom which offended against the articles of the European Convention on Human Rights.

When the appeal Hearing opened Ms Parker applied for the addition to the Secretary of State's letter of 16 November 1993, of the following words after, "safe third country" in the fourth paragraph:-

"has considered the circumstances of your individual case in the light of the presence in the United Kingdom of your husband who has exceptional leave to remain, however has decided not to depart from his practice in your case"

Ms Harrison then produced a "Notice of Marriage" between the appellant and Ali Agcadag, which was due to take place on 21 December 1993, at Haringey Register Office. Ms Parker submitted that the Secretary of State had accepted the appellant and Ali Agcadag had married.

Ms Harrison, then, relying upon the United Nations High Commission for Refugees Handbook at page 43, paragraphs 181 and 182, and paragraph 186, which she read aloud, relating to the unity of the family, submitted that the appellant, as the wife of a person with exceptional leave to remain in the United Kingdom, should be allowed to remain in the United Kingdom. She drew my attention to the case of Conteh [1992] Imm AR 594 and Ex parte TK [1992] Imm AR 231 and argued strongly on the question of family unity. She also drew my attention to a document signed by a Mr. P. Wrench, which set out the policy governing the Secretary of State's exercise of his discretion in "safe third country cases", where it was stated that potential third country cases would normally be considered substantively where the applicant's spouse is in the United Kingdom.

She then called the appellant to give evidence. The appellant's evidence followed, in the main, the evidence which had already been given, but she laid more emphasis on her reasons for her actions and her intention of coming to the United Kingdom to be with her husband. The appellant was cross-examined by Ms Parker as to various aspects of her evidence, and as to her intentions in coming to the United Kingdom.

Ms Harrison then called Ali Agcadag as her second witness. He said that he was married to the appellant on 5 August 1988. He produced a document, dated 28 May 1993, to the effect that he had exceptional leave to remain in the United Kingdom. He, too, was cross-examined by Ms Parker on various aspects of his evidence.

I was then addressed by Ms Parker who submitted that the Secretary of State had considered the whole question of the appellant's marriage to her husband, drew my attention to Mahari and submitted that the appeal should be dismissed.

I was then addressed by Ms Harrison who reiterated her earlier arguments, drew my attention to Mahari at page 34, referred to Brind [1991] Appeal Cases, again referred to the United Nations High Commissioner for Refugees Handbook at paragraph 182, and submitted that, in all the circumstances, this appeal should be allowed or, at least, having regard to the family situation, that the matter ought to be referred back to the Secretary of State under the provisions of paragraph 5(6) of the Second Schedule to the 1993 Act.

I then reserved my determination and delivered my ruling at 3 p.m. on the same day.

My ruling was that the case should be referred back to the Secretary of State for re-consideration under the terms of paragraph 5(6) of the Second Schedule to the Asylum and Immigration and Appeals Act 1993.

I gave my reasons for so deciding and informed the parties that I would commit those reasons to writingand give the parties my written determination in the course of the next few days.

This I now do.

I have considered the evidence and submissions in this appeal and, while I am not entirely satisfied that the appellant has been telling me the full truth, on all aspects of her evidence, I am satisfied that she was married to Ali Agcadag before he left Turkey and that that marriage is still subsisting.

I have given a great deal of consideration to the Home Office policy letter signed by Mr P. Wrench, and have studied the decisions in Conteh [1992] Imm AR 594 and Ex parte TK [1992] Imm AR 231, in the light of the United Nations Convention and Protocol and the Dublin Convention, and, while in both of those cases, "substantial links" had not been found, I consider that, as the appellant does clearly intend to join her husband in the United Kingdom, this is a case where, the Secretary of State would have had every right to make the decision he did under paragraph 180K of HC725, except for the compassionate elements, and the links with the appellant's husband, as contained in the evidence before me, which I consider, should have been given more consideration by the Secretary of State, at this stage. I so find as it would appear to be in line with the Secretary of State's policy to give, in normal circumstances, substantive consideration to third country cases where an applicant's spouse is in the United Kingdom, as is the case here.

Accordingly, I decided to act under the terms of paragraph 5(6) of the Second Schedule to the Asylum and Immigration Appeals Act 1993, and to remit the matter to the Secretary of State for reconsideration in the light of the special circumstances in this particular case.

Accordingly, the Secretary of State's certification, in the absence of full consideration of the appellant's claim in the light of the stated policy, was not well-founded, and I direct that the case be referred back to the Secretary of State for reconsideration of the appellant's substantive claim to asylum.

J.A. O'Brien Quinn Special Adjudicator