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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AG (Eritrea) v Secretary of State for the Home Department  EWCA Civ 407 (25 April 2007)
Cite as:  EWCA Civ 407
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: HX/57933/03]
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWRENCE COLLINS
| AG (Eritrea)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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MR STRACHAN (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
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Lord Justice Carnwath:
"the question of proportionality therefore amounts, to the question of whether the interference with the appellant's private life is necessary in a democratic society for one of the purposes mentioned [in Article 8]."
He summarised the applicant's current circumstances as he saw them. He concluded:
"On the one hand, there are the needs of this young man, now 19, who has been in the United Kingdom for over four years and whose has established a new life in this country. He has attended school and college here and hopes to go to university. He has no family in Eritrea. He does not speak the language. He has no connection with Eritrea other than his mother's ethnic origin. He has been traumatised by his past experiences. He would face a risk of ill-treatment and torture in Eritrea. On the other side of the balance is the need for the respondent to maintain a fair immigration policy. I have to ask myself whether allowing the appellant to stay in the United Kingdom would give a message to the others that they could behave in the same way and circumvent the immigration system. I consider this highly improbable.
"I conclude that the interference in the appellant's private life, which would result from his removal to Eritrea is not necessary for any of the purposes mentioned [in Article 8.]"
"The true position in our judgment is that the HRA 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."
He went on to say and explain why an applicant can only succeed:
"… where the case is truly exceptional".
referring to the words of Lord Bingham in the case Razgar (para 20):
"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."
"… there is no possibility that a tribunal properly directing itself in accordance with the approach we have described could have found anything amounting to truly exceptional circumstances".
"Because Huang had not been decided the adjudicator made no reference to the appeal being truly exceptional. Nevertheless Huang is declaratory as to the law and therefore it was an error of law not to comply with the approach in Huang even though it had not been decided."
It also referred to the previous case-law to similar effect:
"Although the decision in Huang was not handed down until long after the determination was promulgated, various judgments from the Court of Appeal, and of the Tribunal, have made it clear, in a variety of language, at various times, that whatever the appropriate test for Article 8 was it comprised a high hurdle for an appellant to achieve against the respondent obligations to maintain Immigration Policy. After a variety of different approaches the Court of Appeal has settled on the wording in Huang but, nevertheless, the test has been high, however expressed, since the coming into force of the Human Rights Act 1998."
The tribunal held that there had been an error of law, and directed full reconsideration.
"In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar above, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test."
"In Mr Kashmiri's case, the Secretary of State did not seek to uphold the Court of Appeal's order if the House should find that the Immigration Appeal Tribunal had misdirected itself, fairly accepting that Mr Kashmiri was entitled to a decision by a properly directed tribunal."
So the appeal was allowed.
"The Respondent accepts that the Asylum and Immigration Tribunal did carry out its reconsideration on the basis of the test of exceptionality as then understood in the Court of Appeal's judgment in Huang. Accordingly, it accepts that the Appellant's appeal should be allowed to the extent that the appeal is to be remitted to the Asylum and Immigration Tribunal for reconsideration under Section 103A of the 2002 Act."
"… while the appraisal of proportionality is procedurally a matter for the immigration judge, substantively it must start from the position that the maintenance of lawful immigration control is ordinarily sufficient to make removal proportionate. From this it follows that there must be something truly exceptional to make an otherwise lawful removal disproportionate: it is now axiomatic that article 8 will be engaged only in a small minority of exceptional cases, disclosing 'the most compelling humanitarian considerations'."
He was referring there of course to Lord Bingham's words in Razgar and to Lady Hale's speech in the same case.
Lord Justice Lawrence Collins:
Order: Application granted.