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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  2 All ER 28,  EWCA Civ 801
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY
LORD JUSTICE LAWRENCE COLLINS
| AG (ERITREA)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss J Collier (instructed by The Treasury Solicitor) for the Respondent
Hearing date: Tuesday 19 June 2007
Crown Copyright ©
Lord Justice Sedley :
The judgment which follows is the judgment of the court.
Did the adjudicator err?
" [T]he appellant would have to attend the embassy in person and would need three witnesses to sign at the embassy to confirm that she is Eritrean. Given that the appellant has never lived in Eritrea, having been born in Ethiopia and lived there all her life, we accept that it would be impossible for the appellant to do this.
Even if it was possible to remove the appellant to Eritrea, there is no evidence that she has family there She is now 27 years old. She would be returned to a country in which she has never lived. She would therefore need to access public services if she is to be able to live in it. However, if she is going to be denied public services, and be without the support of a family, than such evidence would in our view amount to inhuman and degrading treatment, in breach of article 3 of the ECHR."
17. The appellant also puts his claim on the basis of article 8 of the ECHR. The approach taken by the European Court of Human Rights establishes that article 8 is to be analysed according to a step-by-step approach, asking first whether there is an existent private or family life, second whether there is an interference with that private or family life, third whether that interference pursues a legitimate aim, fourth whether it is in accordance with the law and finally whether it is proportionate.
18. The appellant has no family, as such, in the United Kingdom. He came here when he was 14. He has been cared for by social services agencies and by the Medical Foundation. I quote from the letter from Haringey Social Services, mentioned above:
"Despite his adversity, and the uncertainties of his immigration status over the past four years he has demonstrated resilience and remained committed to his education, which he believes will secure his future. He has settled well, in this country through forming new attachments to a number of people and communities over the past four years. [He] is a conscientious and committed young person. He has already demonstrated this through so much achievement over such a short period of time. He is currently attending college and hopes to go to university next year."
19. He is a client of the Medical Foundation's Child and Adolescent Psychotherapy Team and attends both individual and group psychotherapy. The latter is with a group of people of mixed Ethiopian/Eritrean parentage.
20. I would be prepared, if necessary, to say that a purposive interpretation should be given to the term "family life" and that the appellant's attachments to people and communities in the United Kingdom amounts to family life. However, it is not necessary, as the appellant clearly has a developed and coherent private life in the United Kingdom, which would be seriously interfered with by his removal to Eritrea. That interference would pursue the legitimate aim of maintaining a fair and consistent immigration policy. It would, apart from my findings already set out, be lawful.
21. In considering whether it would be proportionate, I note that the respondent has not made any specific finding on this issue. I am therefore free to consider it without reference to an existing decision by the respondent. I note, also, the wording of article 8 of the ECHR, which does not use the word "proportionate". It says: "There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." The question of proportionality therefore amounts, to the question whether the interference with the appellant's private life is necessary in a democratic society for one of the purposes mentioned.
22. On the one hand, there are the needs of a young man, now 19, who has been in the United Kingdom for over 4 years and who 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 then his mother's ethnic origin. He has been traumatised by his past experiences. He would face 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 others that they could behave in the same way and circumvent the immigration system. I consider this highly improbable.
23. I conclude that the interference with the appellant's private life which would result from his removal to Eritrea is not necessary for any of the purposes mentioned.
24. I therefore consider that his removal to Eritrea would constitute a breach of the United Kingdom's obligations under article 8 of the ECHR.
14. . The reason I took that view was that I was concerned that this case was probably one of a large number of cases in which the AIT understandably had used the language of "exceptionality" relying on the decision in Huang in this court. It seemed to me that to send all those cases back for reconsideration, without some guidance as to what the new approach should be in practice, would not be very helpful.
15. Furthermore, I was far from convinced that the test has in fact altered in a way that is likely to affect the great majority of cases. As has been seen in the passage I read in Laws LJ's judgment, the exceptionality approach is not put forward as a separate test, but as the natural consequence of the ordinary principles of proportionality in the context of immigration law. As Sedley LJ said in Krasniqi:
" 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.
16. Although it is now clear that "exceptionality" as such is not a distinct legal test, I doubt if there is much difference in practice from saying that the result of the correct approach to proportionality is that only a very small minority of cases will succeed. The implicit assumption must be that there has to be something unusual about the particular case to part from the ordinary principles of immigration control. In any event, before a case is sent back to the AIT, this court should have an opportunity to give some guidance on how if at all the approach should be revised.
17. I have heard very helpful submissions from Mr Nicholson, for the applicant, and Mr Strachan, for the Secretary of State, both of whom I think would remain content for the case to go back in accordance with the consent order, but they both accept that it is a matter for this court. Also, I think, they accept that guidance would be helpful.
18. Accordingly I propose, subject to my Lord's views, to grant permission to Mr Nicholson on the additional grounds raised by his supplementary skeleton argument, and to direct that those along with the original grounds for which permission was granted be heard by the full court. It should be dealt with as soon as possible, and it should be dealt with by a court including at least two Lord Justices familiar with asylum cases. I will also direct that this judgment may be referred to in other cases, as an exception to the normal approach for judgments on leave applications.
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?
"The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. In Secretary of State for the Home Department v Kacaj  Imm AR 213, 228, para 25, the Immigration Appeal Tribunal (Collins J, Mr C M G Ockelton and Mr J Freeman) observed that:
"although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate."
In the present case, the Court of Appeal had no doubt  Imm AR 529, 539, para 26, that this overstated the position. I respectfully consider the element of overstatement to be small. 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."
"The true position in our judgment is that the HRA and s.65(1) [of the Immigration and Asylum Act 1999] 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."
"29. The Article 8 finding is unsafe for one or two reasons. The Adjudicator used the wrong test by applying too low a hurdle, however that was expressed. It cannot be said, if he did look at Article 8 in an appropriate manner, that there is anything about this appellant's account at all to engage Article 8. It has always been difficult to establish a private life which will engage Article 8 and nothing about this young man's private life in the UK does so. We are satisfied that it was perverse to find, that on the evidence before him, this is a truly exceptional case. There is nothing about the evidence recorded by the Adjudicator that could possibly be described as truly exceptional. For those reasons we have found that there is an error of law with Article 8 findings."
"20. 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 , 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."
"Question (2) reflects the consistent case law of the Strasbourg court, holding that conduct must attain a minimum level of severity to engage the operation of the Convention: see for example Costello-Roberts v United Kingdom (1993) 19 EHRR 112."
"Having regard to the purpose and aim of the Convention taken as a whole, and bearing in mind that the sending of a child to school necessarily involves some degree of interference with his or her private life, the Court considers that the treatment complained of by the applicant did not entail adverse effects for his physical or moral integrity sufficient to bring it within the scope of the prohibition contained in article 8."
The decision, while clearly illustrating the principle for which Lord Bingham cites it, does not say or imply that the minimum level of severity required to bring a case within the article is a special or a high one. It is apparent from the passage we have cited that in Costello-Roberts the surrender of a substantial measure of the child's autonomy and the parents' control to the school was a critical consideration: see the commentary in Clayton and Tomlinson, The Law of Human Rights §12.86. Even then the court was divided by 5 to 4 as to whether the beating of "a lonely and insecure seven-year-old boy" crossed the threshold, with the then President, Judge Ryssdal, and the future President, Judge Wildhaber, among the authors of a powerful dissent. Most tellingly, perhaps, the United Kingdom judge, Sir John Freeland, said in an opinion concurring with the majority:
"But it must be evident, if only from the division of opinion in the Court, that the case is at or near the borderline."
"22 [H]owever the matter is expressed there is no doubt that the interests of family life will not usually prevail over the interests of immigration control. The difficulty is in expressing that general understanding in any sort of guiding rule or principle. To speak simply of 'exceptional' or 'rare' cases does nothing to explain what principle should be applied in identifying such cases; and that, it seems to me with respect, is what the House of Lords warned of in Huang."
23. ."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."
39. In SSHD v Huang  UKHL 11 the Appellate Committee have made clear that the notion is not a threshold or criterion for the engagement of Article 8(1) in asylum or extradition cases; it is an "expectation" that it will be exceptional for recourse to Article 8, read as a whole, to overcome the otherwise lawful removal of a claimant from the jurisdiction. It is plain from the Committee's reasoning that such expectation turns on the relative weight of Article 8(1) interference against that of relevant factors that go to justification under Article 8(2), including, in particular, the public interest in maintaining an effective system of immigration control.
41. Such an approach, and [the] explanation of it, is, with respect, entirely logical, given the structure of Article 8 in, and the relationship of, its two parts. First, Article 8(1) describes, albeit loosely, the right protected, the right to respect for private and family life ". Why the threshold for interference with such a sensitive right should rise to exceptional heights simply because it is engendered by a threat of removal of the claimant from the jurisdiction as distinct from a less draconian interference but interference nonetheless - solely within the jurisdiction, it is hard to see. On any set of facts Article 8 is engaged or it is not.
42. Exceptionality, to the extent that it survives as an expectation, comes in at the Article 8(2) stage in drawing the balance between, on the one hand the severity in the nature and consequences of the facts constituting the Article 8(1) interference, and on the other the importance in the circumstances of the countervailing Article 8(2) factors present going to justification. If the interference so exceeds the Article 8(1) threshold as, say, to justify the description "flagrant and fundamental breach", it is more likely - depending, of course, always on the circumstances - to prevail over the Article 8(2) justification in play.
Sedley LJ said:
"6. . I agree nevertheless with Auld LJ that the essential change in our approach following Huang will be that, rather than take the threshold of entry into art. 8(1) to be some exceptionally grave interference with private or family life, tribunals and courts will take the language of the article at face value and, wherever an interference of the kind the article envisages is established, consider whether it is justified under art. 8(2). In the great majority of cases it will be, because immigration controls are established by law and their operation ordinarily meets the criteria of proportionality which, in the Strasbourg jurisprudence, measure what is necessary in a democratic society for such prescribed purposes as the economic wellbeing of the country. While therefore there is no need to apply a formal test of exceptionality, it will be only rarely in practice that an otherwise lawful removal which disrupts family or private life cannot be shown to be compliant with art. 8."
"Proportionality is not a word found in the text of the Convention: it is the tool which the Court has adopted (from 19th-century German jurisprudence) for deciding a variety of Convention issues including, for the purposes of the qualifications to Arts. 8 to 11, what is and is not necessary in a democratic society. It replaces an elastic concept with which political scientists are more at home than lawyers with a structured inquiry: Does the measure meet a recognised and pressing social need? Does it negate the primary right or restrict it more than is necessary? Are the reasons given for it logical? These tests of what is acceptable by way of restriction of basic rights in a democratic society reappear, with variations of phrasing and emphasis, in the jurisprudence of (among others) the Privy Council, the Constitutional Court of South Africa, the Supreme Court of Zimbabwe and the Supreme Court of Canada in its Charter jurisdiction (see de Freitas v Ministry of Agriculture  1 AC 69, 80, PC), the courts of the Republic of Ireland (see Quinn's Supermarket v A-G  IR 1) and the Court of Justice of the European Communities (see Art. 3b, Treaty on European Union; Bosman  ECR I-4921, §110).
i) the legislative objective is sufficiently important to justify limiting a fundamental right;
ii) the measures designed to meet the legislative objective are rationally connected to it; and
iii) the means used to impair the right are no more than is necessary to accomplish the objective;
and adding (citing R v Oakes  1 SCR 103) the need to balance the interests of society with those of individuals and groups (see also Soering v United Kingdom (1989) 11 EHRR 439, §89; Konstantinov v The Netherlands, 16351/03, 26 April 2007).
65. Mr Nicholson then turned to the Appellant's claim under Article 8 of the European Convention. He submitted that paragraph 31 of the Court of Appeal in the Krasniqi v SSHD contained a definition of exceptionality which included the Appellant's circumstances. He was credible. He had been ill-treated as a child by the Ethiopian authorities, his mother had been taken from him and if he was sent to Eritrea he would be going somewhere he had never been. These factors made the Appellant's case exceptional and the appeal should be allowed.
76. If the Appellant were removed from the United Kingdom, the interference with his private and family life would be pursuant to a legitimate objective, namely the maintenance of proper immigration control. The issue is whether removal is proportionate to that aim. We have dealt with the submissions made for him based on the Court of Appeal judgment in Krasniqi v SSHD. We note the comments of Arden LJ at paragraph 35(E) that:
"to establish a valid claim that his rights under Article 8 would be violated by removal, A has to show that they are prevented from establishing a family life in his or her own country or "
The Appellant is single and is physically fit. His mental condition is as already described. It would not be disproportionate to the need to maintain effective immigration control to remove the Appellant from the United Kingdom. We find that he would be able to establish a private family life in Eritrea, if admitted by the authorities, or in Ethiopia. No other Articles of the European Convention are claimed to be engaged in Grounds of Appeal.
Burden of proof
"Regrettably, there is no information on the Appellant's Home Office file to indicate why Eritrea was chosen as the country of removal or to indicate how the Operational Guidance Notes were applied to the facts of the Appellant's case."
While the operational guidance notes give some clues (in section 3.9) as to how Ethiopians of Eritrean origin may be dealt with, we limit ourselves to noting that tribunals at every stage of the case have asked why it is proposed to remove this young man to Eritrea, and that the continuing failure of the Home Office to give an intelligible reason raises a strong suspicion that there is none.