11 June 2010

FOURTH SECTION
Application no. 22897/09
by Vusumzi Lee MBUISA
against the United Kingdom
lodged on 1 April 2009

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Vusumzi Lee Mbuisa, is a South African national who was born in 1969 and lives in Huddersfield.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant has been a student in the United Kingdom since 2004. In March 2007 he visited his family in South Africa. He returned to the United Kingdom on 17 March 2007, accompanied by his wife, Xolasani Nkosi, and his son. On arriving at Manchester airport, the family was questioned by immigration officers. The applicant's wife and son were granted temporary admission on condition that his wife report to an Immigration Officer for interview on 21 March 2007. The applicant was subsequently interviewed but his wife was not. On 21 March 2007 his wife and son were refused leave to enter on the basis that they were seeking entry as dependants of the applicant, that they intended to remain with him in the United Kingdom until his studies were completed, and that they did not have prior entry clearance valid for this purpose. They were removed to South Africa on 25 March 2007.
The applicant's wife appealed against the refusal of leave to enter. She submitted that she had only ever intended to stay with the applicant for two months and, as a South African national, she did not require prior entry clearance for such a visit. She further submitted that the refusal of leave to enter violated her human rights and was discriminatory.
On 1 November 2007 an Immigration Judge allowed the appeal. She accepted that the applicant's wife might not have made her intentions clear when she arrived in the United Kingdom. However, the Immigration Judge noted that her legal representatives had confirmed that she and her son only intended to remain in the United Kingdom for two months in a letter dated 20 March 2007. Moreover, the applicant was interviewed on 21 March 2007 and the interview record clearly stated that his wife and son would only stay for two months as visitors. The Immigration Judge was therefore satisfied that the applicant's wife was intending to enter the United Kingdom for a period of two months. Consequently, she should not have been refused leave to enter on the ground that she did not have prior entry clearance. Finally, the Immigration Judge noted that no evidence had been provided to demonstrate that the decision was discriminatory.
Following an application by the respondent Government, an order for reconsideration was made. On reconsideration, the Asylum and Immigration Tribunal found that the Immigration Judge had made a material error of law. Pursuant to sections 82, 84 and 89 of the Nationality, Immigration and Asylum Act 2002, a person who did not have entry clearance on arrival in the United Kingdom could only appeal against the refusal of leave to enter on the ground that the decision was unlawful by reason of section 19B of the Race Relations Act, that it was unlawful under section 6 of the Human Rights Act, or that it would breach the United Kingdom's obligations under the Refugee Convention. Consequently, the Immigration Judge had no jurisdiction to allow the applicant's wife's appeal on the ground that she did and this aspect of her determination had to be quashed. The Tribunal noted, however, that the applicant's wife had also raised human rights and race discrimination as grounds of appeal. As the Immigration Judge had made no decision concerning human rights and had dismissed the race discrimination claim without giving reasons, the Tribunal had to reach its own conclusions in respect of these matters. It held that there had been no inappropriate behaviour amounting to race discrimination against the applicant's wife or child. It further held that the refusal of leave to enter did not constitute any real interference with the applicant's wife's rights under Article 8 of the Convention but, even if it had, the interference did not have consequences of such gravity as potentially to engage the operation of Article 8. The Tribunal therefore substituted a fresh determination dismissing the applicant's wife's appeal.
On 14 November 2008 the Court of Appeal refused the applicant's wife's application for permission to appeal and made an order prohibiting her from requesting an oral hearing.
B.  Relevant domestic law and practice
Prior to 1 July 2009, South African nationals were classified as “non-visa nationals” and, as such, they did not need entry clearance to come to the United Kingdom for less than six months unless it was a requirement of the immigration category under which they were entering.
Pursuant to paragraph 7 of the Immigration Rules HC 395 (as amended):
“A person who is neither a British citizen nor a Commonwealth citizen with the right of abode nor a person who is entitled to enter or remain in the United Kingdom by virtue of the provisions of the 2006 EEA Regulations requires leave to enter the United Kingdom.”
Under section 82(2)(a) of the Nationality, Immigration and Asylum Act 2002, a person may appeal to an adjudicator against the refusal of leave to enter the United Kingdom. Section 84(1) of the 2002 Act provides that such an appeal must be brought on one of the following grounds:
“(a) that the decision is not in accordance with immigration rules;
(b) that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c. 74) (discrimination by public authorities);
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;
(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;
(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.”
However, section 89 of the 2002 Act provides 

COMPLAINTS
The applicant complains under Articles 8 and 12 of the Convention that the decision of the Secretary of State for the Home Department violated his right to respect for his family and private life and interfered with his plans to add to his family. The applicant also complains that in refusing his wife leave to enter, the Secretary of State for the Home Department refused to follow correct procedures; in particular, the applicant complains that the Secretary of State reached his decision without interviewing his wife. The applicant further complains that the Asylum and Immigration Tribunal's finding that the Immigration Judge did not have jurisdiction to allow his wife's appeal under the Immigration Rules was unlawful. Finally, the applicant complains that he and his family have been discriminated against on account of their race.
QUESTIONS TO THE PARTIES

1.  Has there been an interference with the applicant's right to respect for his family and private life? If so, does it fall within the scope of Article 8 § 2 of the Convention? In particular, was it in accordance with the law?

2. Can it be said, in the circumstances of this case, that the applicant's complaints under Article 8 of the Convention are inadmissible by virtue of Article 35 § 3 of the Convention as amended by Article 12 of Protocol No. 14?