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Cite as: [2007] EWCA Civ 28

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Neutral Citation Number: [2007] EWCA Civ 28
Case No: C5/2006/0641

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
TH/09213/2004/2002

Royal Courts of Justice
Strand, London, WC2A 2LL
31st January 2007

B e f o r e :

THE RT HON. LORD JUSTICE WARD
THE RT HON. LORD JUSTICE NEUBERGER
and
LORD JUSTICE GAGE

____________________

Between:
SB (Bangladesh)
Appellant
- and -

Secretary of State for the Home Department
Respondent

____________________

(Transcript of the Handed Down Judgment of
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____________________

Sonali Naik (instructed by Dexter Montague & Partners) for the appellant
Nicola Greaney (instructed by Treasury Solicitor) for the respondent

____________________

HTML VERSION OF JUDGMENT
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    Lord Justice Ward:

  1. This is a renewed application for permission to appeal and, if permission is granted, an appeal against, the decision of the Asylum and Immigration Tribunal promulgated on 6th February 2006 dismissing Mrs SB's appeal against the decision to refuse to grant her indefinite leave to remain in the United Kingdom. This is the judgment of the court to which we have all contributed.
  2. The facts

  3. The applicant is a citizen of Bangladesh, some 56 years of age. As was the tradition, her marriage to Amiruz Zaman, whom we shall call "the husband", was arranged by her parents in Bangladesh where all parties were then living. It was a polygamous marriage. The applicant was the second wife. Amiruz Zaman had married the applicant shortly after he had married Rufia Begum. He lived with Rufia and the applicant in the same property in Sunamgong. He and Rufia have six children whose ages range from 35 to 16. He and the applicant have another six children whose ages also range from 35 to 14. They are Ruhul Ambia, 35, Fateha Begum, 30, Ruhul Ahmed, 28, Sureha Begum, 24, Nureha Begum, 22, and Ruhul Ebrahim, born on 13th February 1990 so now a few months short of his seventeenth birthday.
  4. The husband first came to England in 1960 and he regularly travelled back to Bangladesh to spend time with his wives and in time his family. His first wife and their six children emigrated to England in about 1989 and they, husband, first wife and six children, are now all citizens of the United Kingdom.
  5. The three eldest children of the applicant joined their father and his first wife in England in 1990, the next two followed in 1993 and finally the youngest, Ebrahim arrived here in 1998. The applicant was happy with these decisions by her husband because she knew that it would be best for her children even though it meant she was left on her own. As Ebrahim was only eight when he was sent here, he did not settle without his mother and so he returned to Bangladesh in 1999. The other children remained in England.
  6. By 2001 the husband was seriously ill and he summoned the applicant and his youngest son to England. He told her what she had to say to the Entry Clearance Officer to secure a visa and, as the Tribunal found, "she did as she was told, as she had always done." Unfortunately this involved her in telling lies. On 9th March 2001 she informed the entry clearance officer when interviewed by him that she had children living in Bangladesh and that she had income from farming and from a son's business. None of that was true. What was true was that she wished to come here because a daughter was pregnant. Although accepting that the applicant was a subservient wife, the Tribunal found that in all probability she had no intention of returning to Bangladesh once she left in May 2001.
  7. On 26th October 2001, which is a date before her visa expired on 1st November 2001, solicitors on her behalf applied to the Home Office for indefinite leave to remain in the United Kingdom as a dependent relative of a person present and settled here. That application was refused by the Secretary of State on 3rd January 2003, his reasons being:
  8. "Dexter Montague and Partners has applied on your behalf for indefinite leave to remain in the United Kingdom as a dependant of your son Ruhul Ambia but you are under 65 and in view of the fact that on 9th March 2001 you informed the Entry Clearance Officer that you have children living in Bangladesh and you have income from farming and a son's business the Secretary of State is not satisfied that you are financially wholly or mainly dependent on your son in the United Kingdom, or that you would be living alone in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom."

    The applicant appealed that decision and, with an irrelevant detour here and there, the appeal process had landed up in this Court. She and the family have, of course, remained here without interruption.

  9. When the applicant arrived here in the spring of 2001 she went to live with her daughter Fateha. Ebrahim went to live his father and his first wife and family of which Nureha was a member. It was not a happy time for them. The husband had been in hospital for a year and died in June 2002. The strain between stepmother and stepchildren became too great and in 2004 the first wife demanded that Nureha and Ebrahim should leave her home. The Tribunal accepted that the family were telling the truth when they explained that the local authority provided accommodation for Nureha, that Ebrahim went to live with her because she had been appointed his "guardian" and that the applicant then joined her children in that property some time in about August 2004. Although the Tribunal found that Nureha was Ebrahim's legal guardian as she claimed, a family lawyer would find these concepts a little odd. A guardian can only be appointed by a parent to assume responsibility for the child after the parent's death. It is possible that the deceased father made such an appointment by his will but seems inherently unlikely. It seems much more probable that because the social services department became concerned about Ebrahim's welfare as he and Nureha were suffering at the hands of their stepmother and step-siblings, they had to provide accommodation for Ebrahim pursuant to section 17 of the Children Act 1991. Perhaps Nureha was provided with accommodation as a homeless person and Ebrahim then placed with her. The detail of this does not seem to matter: the accepted fact is that the applicant and the youngest two members of the family were now established in a home together.
  10. The Tribunal made these findings with regard to these children:
  11. "53. We find that Nureha is at university, and about to take her final examinations. It is a great shame for her that her course has been moved from a site near to her home, requiring her to spend and hour-and-a-half travelling each way each day. We accept this has limited the amount of time she has been able to spend at home.
    54. We also accept the evidence relating to Ruhul Ebrahim's schooling. His teacher is Mr Hilmi. In a letter dated 6 January 2005, he describes Ruhul as a very quiet and sensitive individual, who has developed learning very slowly because of his English language. He attends classes for extra support and 1:1 tutorials on a regular basis. He has had some behavioural problems, but this was deemed to be low-risk because of lack of understanding of the lesson and self-confidence. Mr Hilmi says that Ruhul's unsettled background has affected his education, learning and general behaviour in school. Further disruptions will affect his learning and education. We accept Mr Hilmi's evidence. We also note and accept the Year 9 progress reports submitted by his tutors (mid-2003 to spring 2004) which generally speak highly of Ruhul, but from which it is clear that he has some behavioural problems and learning difficulties.
    61. We have no doubt that the effect of the appellant's removal on this family would be significant. Our primary concern is the effect on Ruhul Ebrahim. He is still a minor and has been shown in the past to have suffered significantly when removed from his mother's care. He is more settled here now and improving at school. He now has a settled roof over his head with Nureha, and his older sister Fateha lives just ten minutes' walk away. Interestingly, it was the appellant's oral evidence that she thought Nureha would be more badly affected by her removal than would Ruhul. We do consider, however, that his progress is likely to be disrupted again were his mother to be removed. He has now been here 4 years, and in the three years before that was brought to the United Kingdom, sent back to Bangladesh and then returned here. We do not consider that it would be reasonable to expect him to leave the United Kingdom to go to live with his mother in Bangladesh, if he did not wish to do so.
    62. Nureha is now 22. She will shortly finish university. She can be considered an independent adult now. Whilst it has plainly been a great advantage to her to have her mother look after the home, freeing her up to go to university and engage fully in her studies and social life, it could not be said that it is not unreasonable to expect her now to be self-sufficient. However we are concerned at the effect on her of carrying the responsibility for Ruhul until his majority and beyond. She has carried great responsibility for him since he first came here. We also bear in mind that Nureha has lived here since 1993, therefore for over twelve years, that all the children are British citizens, and that they did not make the choice to come to the United Kingdom their father made it for them."
  12. In support of her application that if returned to Bangladesh she would be living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom, the applicant advanced the case that the property in which she had been living in May 2001 had been left empty after her departure, that it had been broken into and had suffered flood damage. Other members of the family said they had seen the property recently and confirmed that it was no longer habitable. Her only other close relatives in Bangladesh were two brothers and a sister who lived two hours drive away from her family home. They all live in extreme poverty and are reliant on the applicant's children in the United Kingdom to provide them with financial support. If she were to return to Bangladesh she would have nowhere to live, would be alone, there would be nobody to help her should she become ill. The Tribunal did accept the medical evidence put before them that she was suffering from high blood pressure and anaemia and took medication for it. Ambia gave evidence that he had provided financial support to his mother sometimes 50, sometimes 60, sometimes 100 from his employment as a chef. If the applicant were to go back to Bangladesh he would continue to help.
  13. The Tribunal were not impressed by all of this evidence. There was "a curious dearth of supporting evidence". They said:
  14. "43. In assessing the rest of family's evidence, we have been aware that the appellant has been prepared to lie quite comprehensively to secure entry to the United Kingdom, and that her children are all very anxious that she should stay here. It is quite clear that, because she was a polygamous second wife, she was the only one of her late husband's two wives and twelve children who was unable to obtain a certificate of entitlement of a right to reside here and that it was because of that that she was originally left behind in Bangladesh when the last of the children, Ruhul Ebrahim, came here in 1998. We accept that he returned nine months or so later to live with his mother again because he missed her, but find that to all intents and purposes this appellant was estranged from her family by legal circumstance, and that it was the family's intention that they be reunited. We accept her explanation that she lied to the Entry Clearance Officer having been told to do so by her husband, who told her what to say. Having listened to and observed her give evidence at the hearing, we have formed the clear view that we cannot, without more, rely on what she now says about her circumstances with any degree of confidence. We find that in all probability, she had no intention of returning to Bangladesh once she left in May 2001. Ruhul Ebrahim was put into school immediately they arrived here and the rest of her family were here. We find that the appellant's entry to the country and subsequent applications have been a blatant attempt to circumvent the Immigration Rules."

    They found there were material inconsistencies and exaggerations in the evidence presented to them and considered that the applicant had either exaggerated the degree of responsibility she has had for the children or the extent of the difficulties they experienced at their stepmother's home. They considered she had also exaggerated the extreme poverty in which she said her sisters and brothers were living in Bangladesh and about the extent of the financial support the English family were providing for them. They found:

    "48. They [the applicant's Bangladesh siblings] are likely to be poor by United Kingdom standards, but there is no reliable evidence that they live at a level below the average citizens of Bangladesh. We accept that they probably will not be in a position to assist her financially, but find that she does not need them to do so. It is conceded in the appellant' skeleton argument that financial support from the United Kingdom would continue were she in Bangladesh. A number of the appellant's children speak about their mother's siblings, and we find there is evidence of ongoing contact between the two branches of the family. We find that they would be in a position to offer moral and emotional support to the appellant in Bangladesh."
  15. The Tribunal thought it was improbable that the house had been damaged as had been claimed and that if it had been stripped of furniture it was more probable than not that that was done before the applicant left Bangladesh because she did not intend to return there. They did, however:
  16. "51. . accept that if the property has not been inhabited for 4 years (and we make no express finding in relation to this) it is likely now to be run down and in need of renovation. If this is so, we accept that it will take some time to render it suitable for habitation again.
    52. We are concerned that all the family deny there was any land with the house. The house is in a village, and from what the children have said about its supposedly now being occupied by cows, calves and chickens, it sounds as though the area is agricultural to some extent: indeed it would be surprising if it were not. It would be surprising if the family did not have land to live off. Subletting of land could yield income. We do not, however, consider findings on these points necessary to our decision."
  17. The Tribunal noted the arguments addressed to them on the applicant's behalf as follows:
  18. "19. Ms Naik drew our attention to the legal context in which, she said, the Article 8 claim should be placed. She said that the appellant would have been entitled to come to the United Kingdom as the wife of a British citizen until a change in the law in 1998, under the then s. 2(2) of the Immigration Act 1971. All the children are British citizens by descent and have established their lives here. The family is wholly established in the United Kingdom. In addition, the appellant almost qualified for leave to remain in the United Kingdom under the provisions of paragraph 248A of the Rules, which provides the requirements for leave to remain in the United Kingdom for those exercising rights of access to a child resident here. The only way in which she did not meet the Rule was that she was not a holder of limited leave to remain as the spouse or unmarried partner of a person present and settled here. Her being granted the right to remain was, nonetheless, within the spirit of the Immigration Rules."

    The Tribunal's decision

  19. The first matter for the Tribunal was the appeal against the Secretary of State's decision to refuse to grant indefinite leave to remain under paragraph 317 of the Immigration Rules (HC 395). This is what they decided:
  20. "55. We consider the respondent right to have refused the application under the Rules. At the date of decision, the appellant was not living alone in the most exceptional compassionate circumstances (or if she had been in Bangladesh would not have been so.). She had been living alone for some years (she described it as 15, though it is clear that she had children with her for most of that time). In her statement she says that when Ruhul Ebrahim first came to the UK in 1998 she was left on her own. She knew that her children's future lay here and she was happy with the decisions made by her late husband regarding them. She gives no evidence as having then been living in either exceptional or compassionate circumstances, and we do not consider the situation had changed by early 2003. The appellant was housed, had ongoing contact with her children, and had family in Bangladesh.
    56. We consider it eminently possible, in addition, that she was to a large extent reliant financially on income generate from land belonging to the property and subsistence farming. We have not received satisfactory evidence as to the appellant's financial circumstances when she was living alone in Bangladesh, and are unable to make a positive finding that she was mainly dependent financially on relatives settled in the United Kingdom, as also required under Rule 317(i)(e). For the same reason, we do not consider that the appellant has shown that she meets the requirements of paragraph 317(iii).
    57. In the circumstances, her appeal under the Immigration Rules cannot succeed."
  21. There is no realistic prospect that this Court would interfere with those findings of fact and her appeal against that part of the decision, if indeed she is pursuing such an appeal, has no real prospect of success and must, therefore, be refused.
  22. In fact the real issue raised before us is whether, given that her removal to Bangladesh would interfere with the appellant's Article 8 rights, the Tribunal were right to decide in paragraph [63] that the circumstances of her case were not "truly exceptional" (as that expression was used in paragraph [63] in Huang v Secretary of State for the Home Department [2006] QB 1). To put the same point in the language of the Tribunal in paragraph [68], the issue is whether the Tribunal were right to conclude that the appellant's removal, with its attendant Article 8 consequences, would not be "disproportionate".
  23. As to this, the material findings of the Tribunal were:
  24. "58. The respondent has conceded that the appellant has both private and family life in the United Kingdom. We find that she has family life with Ruhul Ebrahim, who is still a minor, and by reason of her ongoing dependency, with Nureha. We find that she has a private life with other members of her family, of both generations.
    59. We find that the appellant's removal from the United Kingdom would interfere with her family and private life, and that such interference would have consequences of such gravity as potentially to engage the operation of Article 8. Such interference would be lawful, and we find would be necessary in a democratic society for the purpose of maintaining effective immigration control.
    60. We can allow an appeal against removal brought on Article 8 grounds only if we conclude that the case is "so exceptional on its particular facts" that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that she cannot succeed under the Rules (Huang and Others v SSHD [2005] EWCA Civ 105), applying Razgar v SSHD [2004] UKHL 27: "Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case-by-case basis.") We also bear in mind the conclusions drawn by the Master of the Rolls in R(Mahmood) v SSHD [2001] INLR 1."
  25. The Tribunal then set out the effect of removal on the family and we have already recited paragraphs 61 and 62 of the decision. The Tribunal then concluded:
  26. "63. We are not persuaded, however that these factors make this case truly exceptional."
  27. Nonetheless the Tribunal did go on to address other matters, saying:
  28. "64. We accept Ms Naik's submission that, on the basis of Lekstaka [Lekstaka v IAT [2005] EWHC 745 (Admin)], it is right that we should bear in mind the fact that the appellant only just failed to qualify for admission under the Immigration Rules. However, the circumstances in Lekstaka were different. In that case the appellant's removal (to Kosovo) would not only have interfered with his family life, but would effectively have brought it to an end, not least since it was "a forlorn hope" that the appellant would be able to visit this country in the future. We come back to this point below.
    65. Nor do we consider that the appellant is assisted by Mahmood. The Master of the Rolls made plain that whether or not interference with family life is justified would depend on the facts of the particular case. He also noted expressly that knowledge on the part of one spouse at the time of marriage (Mahmood being a marriage case) that rights of residence of the other were precarious militated against a finding that an order excluding the latter spouse violated Article 8. We consider there to be a significant parallel to be drawn. In this case, knowledge on the part of all the family at the time that the application commenced her family life in the United Kingdom was that her immigration status was precarious.
    66. Ms Naik submits (paragraph 41 of her skeleton argument) that there is no appropriate or applicable Rule other than paragraph 317 which would entitle the non-settled parent of a British child residing with the other parent in the United Kingdom to be admitted, where the non-settled parent had not previously had limited leave to remain as a spouse or unmarried partner. We disagree. We consider that this appellant could readily make an application under paragraph 246 of the Rules, which makes express provision for those seeking leave to enter the United Kingdom to exercise access rights to a child resident here. We consider that the appellant meets all the requirements of that paragraph, or could readily put herself in a position where she would.
    i. She is a parent of a minor child resident here.
    ii. The carer with whom the child permanently resides is resident here.
    iii. There should be no difficulty in the appellant obtaining a certificate from a district judge to confirm her intention to maintain contact with the child.
    iv. She intends to continue to take an active role in the child's upbringing.
    v. The child is under the age of 18.
    vi. There will be adequate accommodation for the appellant without recourse to public funds in accommodation which she owns or occupies exclusively: she is already living in the home provided for Nureha and Ruhul Ebrahim, and there has been no additional recourse to public funds to enable her to do so.
    vii. The appellant will be able to maintain herself without any additional recourse to public funds: she is already doing so, with the assistance of family.
    67. We can see no reason why a properly structured application under Rule 246 should be refused by an Entry Clearance Officer. After twelve months, the appellant would be entitled to make an application for indefinite leave to remain in the United Kingdom under paragraph 248D, since Ruhul would still be under 18 at that time.
    68. We consider that the proper approach is for the appellant to make an application for entry clearance. Her attempt to remain here has been in blatant disregard of the Rules. We do not consider, for all the reasons given above, that her removal would be disproportionate."

    Discussion

  29. The criticism which can fairly be made of paragraphs [64] to [68] of the decision arises from the contention that, in reaching their conclusion, the Tribunal wrongly took into account the fact, as they saw it, that, if removed, the applicant would have a very good chance of achieving entry clearance, i.e. of lawfully re-entering the United Kingdom, from Bangladesh, pursuant to an application under paragraph 246 of HC 395 ("the Immigration Rules"), and, after a year, of being able to remain here indefinitely, pursuant to a further application under paragraph 248D of the Immigration Rules.
  30. Two points can, at least in principle, be raised against this criticism. The first, which is the point on which Ms Greaney concentrated in her pithy submissions for the Secretary of State, is that the Tribunal did not, in fact, take this fact into account when deciding that the applicant's case was truly exceptional. The second point, which effectively went by concession, is that, when deciding whether this was a truly exceptional case, the Tribunal was entitled to take into account the fact that, if removed, the applicant could expect to be able to re-enter the United Kingdom effectively permanently under the Rules.
  31. On this second point, we consider that Ms Greaney was realistic to state, as she did in her skeleton argument, that "whether or not the applicant would satisfy the requirements for entry clearance was not a matter which the [Tribunal] ought to have taken into account". Although there are arguments (and first instance decisions) which support the opposite view, that statement seems to be right as a matter of principle, in terms of fairness and good practice, and in the light of authority.
  32. So far as principle is concerned, the issue of whether the applicant satisfied the requirements of paragraph 246 of the Immigration Rules would be for an entry clearance officer in Bangladesh to determine, if and when an application under that paragraph is made. In the absence of a requirement to that effect, it is not an appropriate issue for determination, when no such application has been made, by a tribunal deciding a different question, at a different time, in a different country, and in different circumstances. It would also seem somewhat paradoxical if the stronger an appellant's perceived case for entry clearance under the Immigration Rules the more likely he or she is to be removed. Yet, subject to the first point mentioned in paragraph [20] above, on the basis of the reasoning of the Tribunal in this case, that would be the inevitable consequence.
  33. As to practicality, it would be unfortunate, in terms of time effort and expense, if a tribunal, when deciding whether a claim for leave to remain was truly exceptional, had to consider, almost as a matter of course, how likely an appellant, if removed from the United Kingdom, would be to succeed on a subsequent putative application for entry clearance to come back to this country. Yet, as we see it, such an exercise would have to be carried out in many, possibly most, appeals of the present type, if that issue was potentially relevant. And, if such an exercise is carried out, it is hard to see how a tribunal is to decide the weight or effect of such a factor if it decides that the prospects of success of such an application to enter are debatable or speculative.
  34. There is also a real risk of unfairness to an appellant if such a factor is taken into account. Thus, the views expressed in paragraphs [66] and [67] by the Tribunal in this case may turn out to be wrong, either because an entry clearance officer takes a different view of the facts or the law, or because the Immigration Rules change, or because the facts change.
  35. There are decisions of this court which appear to us to establish that an appellant should not be able to resist removal on the ground that he or she would have a very poor prospect of coming back pursuant to an application for entry clearance. We have in mind Ekinci v Secretary of State for the Home Department [2003] EWCA Civ 765, at paragraphs [16] and [17], and Chikwamba v Secretary of State for the Home Department [2005] EWCA Civ 1779, at paragraphs [42] to [46]. (See also Mahmood v Secretary of State for the Home Department [2001] 1 WLR 840 at paragraphs [25] and [26], on a slightly different, but similar, point). The "bizarre and unsatisfactory result" of an appellant being more likely to resist removal the weaker his future putative case for entry clearance was a strong factor in the reasoning (see paragraph [17] in Ekinci, quoted in paragraph [45] in Chikwamba). As mentioned in paragraph [37] above, the converse applies here.
  36. We accept that the question of whether an appellant's circumstances are truly exceptional in an Article 8 case can fairly be said to be affected by the perceived strength or weakness of her prospects of getting back here if removed. That certainly appears to have been part of the thinking of Jackson J in R v Secretary of State for the Home Department ex p Hashim (unreported, 21 January 2000) and Collins J in Lekstaka v Immigration Appeal Tribunal [2005] EWHC 745 (Admin).
  37. However, we consider that the arguments the other way are stronger. It is not as if there is any logical or practical impediment to excluding from a tribunal's consideration the prospects of a successful putative future entry clearance application, in a case such as this. It merely involves limiting the scope of the inquiry as to whether the appellant's circumstances are truly exceptional, and limiting it in a way which can fairly be said to be justified for the reasons we have mentioned. In any event, there are the decisions of this court to which we have referred. In that connection, Hashim was disapproved on this point in paragraph [26] of Mahmood, and the observation of Collins J, relied on by the Tribunal here, was something of a throw-away point (as discussed in paragraph [36] of his judgment), which does not appear to us to have been essential to his decision.
  38. So we turn to Ms Greaney's contention that the Tribunal did not rely on their assessment of the applicant's prospects of obtaining entry clearance, once back in Bangladesh, as relevant to the issue of whether the circumstances of her case were truly exceptional. That argument has, of course, to be assessed by reference to the language and structure of the decision of the Tribunal. In our opinion, the argument must be rejected for a number of reasons which, when taken together, establish to our plain satisfaction that the contents of paragraphs [66] and [67] of the decision were part of the Tribunal's overall reasoning for concluding that the circumstances of the appellant's case were not truly exceptional.
  39. It is true that their conclusion that the case was not truly exceptional was expressed in paragraph [63], and that, at least without more, that gives some credibility to the argument that what followed was not taken into account when reaching that conclusion. However, that argument ignores the structure of the decision of the Tribunal. In paragraphs [61] and [62], the Tribunal summarised their view of the basic facts, relating to the appellant and her youngest children, which gave rise to the appellant's Article 8 argument. In paragraph [63], they said that they were not satisfied that those facts rendered the case truly exceptional. That was a conclusion which had to be explained by the Tribunal, and what immediately followed that paragraph constituted the explanation. That suggests that paragraphs [66] and [67] formed part of the Tribunal's reasoning, a suggestion which is confirmed when one turns to consider the contents of the paragraphs following paragraph [63].
  40. In paragraph [64], the Tribunal first said that, applying the approach of Collins J in Lekstaka, the fact that the appellant "only just failed to qualify for admission" was a fact to be counted in her favour. They were right to take that view. We agree with the view expressed by Collins J in Lekstaka in paragraph 38 that:
  41. " one is entitled to see, whether in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter."

    That seems to us to be the right approach. As Simon Brown L.J. said in Ekinci at paragraph 16:

    "Even if strictly he fails to qualify so that the ECO would be prohibited from granting leave to enter, given the obvious Article 8 dimension to the case the ECO would refer the application to an Immigration Officer who undoubtedly has a discretion to admit someone outside the Rules. And if entry were to be refused at that stage, then indeed a s. 59 right of appeal would certainly arise in which, by virtue of s. 65(3), (4) and (5) the adjudicator would have jurisdiction to consider the appellant's human rights."
  42. The ultimate test is, of course, that set out in paragraph 59 of the judgment of the Court given by Laws L.J. in Huang, namely:
  43. "The true position in our judgment is that the Human Rights Act 1998 and s. 65(1) require the adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules."
  44. Having borne in mind that the appellant had only just failed to qualify for admission under the Rules, the Tribunal then said that, in Lestaka, the appellant had only a "forlorn hope" of being able to revisit this country, and that the Tribunal "would come back to this point below", which strongly supports the view that the prospects of return must have been part of their reasoning.
  45. In paragraph [65], the Tribunal made a point, relating to observations of Lord Phillips of Worth Maltravers MR in Mahmood, which appears to us to have been valid and fair, but is not relevant, at least directly, to the criticism with which this appeal is concerned.
  46. In paragraph [66], the Tribunal analysed, in some detail, why the applicant would, in their view, be able to make a successful application from Bangladesh for entry clearance under paragraph 246 of the Immigration Rules. Apart from the obvious point that there would have been little point in considering this aspect, especially with such care, if it was irrelevant to their decision, there is the linking of this analysis with the last sentence of paragraph [64] (and hence with paragraph [63]), and with paragraphs [67] and [68]. In paragraph [67], they expressed their conclusion, based largely on what they had said in paragraph [66], as to the prospects of the applicant, if returned to Bangladesh, being able to come back to live here indefinitely.
  47. In paragraph [68], the Tribunal then said, again perfectly properly, that in their view the proper course was for the applicant to be returned and to make an application for entry clearance from Bangladesh, and that she should not be permitted to stay, having been in "blatant disregard of the Rules". However, the notion that paragraphs [66] and [67] did not form part of the reasoning for rejecting her case as truly exceptional is demonstrated by the final sentence of paragraph [68], referring as it did to "all the reasons given above".
  48. Accordingly, we conclude that the Tribunal erred in this one respect: when deciding whether the removal of the applicant to Bangladesh would be disproportionate, whether her case was truly exceptional, they should not have carried out, or taken into account, their own assessment of her prospects of coming back to the United Kingdom on an indefinite basis pursuant to an application which she might make from Bangladesh for entry clearance under the Immigration Rules.
  49. We have considered whether it might be said that the Tribunal would, or could only, have reached the conclusion that they did in paragraph [63] (and in paragraph [68]), without taking into account the factors they discussed in paragraphs [66] and [67]. In the light of the findings they made in paragraphs [61] and [62], the point they made in paragraph [65], and the factors identified in the first two sentences of paragraph [68], the Tribunal might well have reached the same conclusion. However, in the light of the facts as summarised in the aforementioned paragraphs [61] and [62], the first point made in paragraph [64], and indeed (arguably) at least some of the points made in the subparagraphs of paragraph [66], we do not consider that it is by any means a foregone conclusion that they would have done so. For the same reasons, we do not believe that it would be right for us to decide, at any rate on the material before us at this stage, that a properly directed tribunal could only have reached the conclusion which this Tribunal reached.
  50. In these circumstances, we grant permission to appeal only on the issue identified in paragraph [36] above, allow the appeal on that issue, and remit this matter to the Tribunal for reconsideration.


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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/28.html