IMMIGRATION—LEAVE TO ENTER—REFUSAL OF LEAVE

Court of Appeal, Civil Division
Sedley, Maurice Kay and Lawrence Collins LJJ
31 July 2007

There is no legal test of exceptionality in the
application of Art 8 of the European Convention on Human Rights (the Convention); while an interference with private or family life has to be real if it is to engage Art 8(1), the threshold of engagement (the “minimum level”) is not an especially high one.

Manjit Gill QC and Edward Nicholson (instructed by Clore & Co) for the claimant.Jane Collier (instructed by the Treasury Solicitor) for the secretary of state.

The claimant was an Ethiopian, born in 1984. He was sent to the UK at the age of 14 by a kinsman of his father. It took the Home Office four years from his arrival in August 1999 to reach a decision to refuse his application and remove him, not to Ethiopia but to Eritrea. He had never lived in Eritrea and it was not his country of origin. He appealed to an adjudicator under Arts 3 and 8 of the Convention.

The appeal was allowed. Under the transitional
regime, the Asylum and Immigration Tribunal (AIT) held the adjudicator’s decision to have been vitiated by two errors of law, namely
deficiency of reasoning about risk, and failure to adopt a test of exceptionality in applying Art 8. In spite of a finding that the adjudicator’s Art 8 decision was perverse, which should logically have meant that only a contrary finding was possible, the AIT sent the entire case, apart from the favourable credibility findings, for a second-stage reconsideration. The reconsideration resulted in a determination that the appellant was not entitled to protection under either convention. The claimant appealed. At the AIT stage the law was still taken to be as set out by the Court of Appeal in Huang v Secretary of State for the Home Department, [2005] EWCA Civ 105, [2005] 3 All ER 435 suggesting, in the light of the decision of the House of Lords in R (on the application of Razgar) v Secretary of State for the Home Office [2004] UKHL 27, [2004] 3 All ER 821, a need for exceptional circumstances to bring a case within the ambit of Art 8. In Huang [2007] UKHL 11, [2007] All ER (D) 338 (Mar), however, the House of Lords ruled that there was no test of exceptionality in the application of Art 8. The parties therefore agreed that this case should be remitted to the AIT for reconsideration. The Court of Appeal declined to take that course, however, and the
entirety of the appeal accordingly came before a full court.

LORD JUSTICE SEDLEY:

The Home Secretary contended that the adjudicator’s decision was, in law, untenable because rather than decide the case on its own facts and merits, he had adopted the fact-findings and conclusion of another tribunal in another case and applied them to the claimant’s case.

His lordship ruled that the bare adoption of fact-findings made in another case could not supply the elements of case-specific fact-finding which were essential to a properly reasoned decision on the Art 3 claim. Beyond that, the material set out or adopted by the adjudicator was not capable of sustaining either his finding that the treatment the claimant might face in Eritrea would amount to persecution, or that such persecution would be on the ground of his (mixed) ethnicity. The favourable asylum finding was therefore also insufficiently grounded.

Article 8

His lordship considered the Razgar case. He held that, while an interference with private or family life had to be real if it was to engage Art 8(1), the threshold of engagement (the “minimum level”) was not an especially high one. Once the article was engaged, the focus moved to the process of justification under Art 8(2). It was that which, in all cases which engaged Art 8(1), would determine whether or not there had been a breach of the article.
In Mukarkar v Home Secretary [2006] EWCA Civ 1045, [2006] All ER (D) 367 (Jul) Lord Justice Carnwath stated:

“In normal circumstances interference with family life would be justified by the requirements of immigration control. However, it is recognised that a different approach may be justified in “a small minority of exceptional cases identifiable only on a case by case basis” (per Lord Bingham, Razgar). The House of Lords has declined to lay down a more precise legal test. Accordingly, whether a particular case falls within that limited category is a question of judgment for the tribunal of fact, and normally raises no issue of law.”

His lordship adopted that reasoning. But because it did not prevent counsel in this case from reverting to a test of exceptionality as a surrogate for the Art 8 decision, it was necessary to reiterate that there was no such legal test. The fact that in the great majority of cases the demands of immigration control were likely to make removal proportionate and so compatible with Art 8 was a consequence, not a precondition, of the statutory exercise. No doubt in that sense, successful Art 8 claims would be the exception rather than the rule; but to treat exceptionality as the yardstick of success was to confuse effect with cause.
 

What mattered was not that courts and tribunals should adopt a set formula for determining proportionality, but that they should have proper and visible regard to relevant principles in making a structured decision about it case by case. It was not sufficient for the tribunal simply to characterise something as proportionate or disproportionate: to do so might well be a failure of reasoning amounting to an error of law. But there would be many cases in which it could properly be said by an appellate tribunal that on no view of the facts could removal be disproportionate. In such cases, even if the AIT had applied the wrong test, permission to appeal would be unlikely to be granted.

His lordship turned to the facts and held that the claim would be remitted to the AIT for determination of the Art 8 claim.