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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> UE (Nigeria) & Ors v Secretary of state for the Home department [2010] EWCA Civ 975 (18 May 2010) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/975.html Cite as: [2012] WLR 127, [2011] INLR 97, [2011] Imm AR 1, [2011] 2 All ER 352, [2012] 1 WLR 127, [2010] EWCA Civ 975 |
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ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
[AIT Nos: IA/13561/2008, IA/13562/2008, IA/13566/2008, IA/13565/2008, IA/13564/2008, IA/13567/2008]
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE RICHARDS
and
SIR DAVID KEENE
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UE ( NIGERIA ) AND OTHERS |
Appellants |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
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Mr Jonathan Auburn ( instructed by Treasury Solicitors) appeared on behalf of the Respondent.
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Crown Copyright ©
Sir David Keene:
"Although there is hardly an abundance of authority on this important issue I am firmly of the view that the proper approach, in considering the appellants' individual Article 8 rights, is to take into account, in the balancing exercise, the impact of their work and activities in the community including their public recognition for those activities, only insofar as those activities impact on their individual development, autonomy and integrity. I do not consider that apart from those considerations I can or should take into account, as a stand-alone factor, of their contributions and value to the community as a form of utilitarian exercise divorced from the actual impact of removal of those appellants."
"A court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights."
"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."
"…a consideration of an appeal under Article 8 calls for a broad and informed judgment which is not constrained by a series of prescriptive rules." (Paragraph 21).
"In my view there was evidence before the tribunal that would justify many of its criticisms of the appellant, but in that part of its determination which deals with the issue of proportionality I should have expected to see some reference to those parts of the evidence to which I have just referred in the course of reaching a balanced decision. This part of the determination is directed almost entirely to a consideration of factors that weigh in favour of the public interest in deporting the applicant, without much consideration being given to factors pointing the other way."
"It may well be that when one considers a right to respect for private life, enshrined in Article 8, that it is not a relevant factor, but it must also be borne in mind that, as Bingham LJ made clear in Razgar, in the passage cited by my Lord, Lord Justice Pill, immigration control is an aspect of the public interest but it is only one aspect. It may well be that the benefit to the community of the work performed by an applicant diminishes the weight to be given to the public interest in immigration control. I emphasise, therefore, that this matter ought not to be finally concluded in a judgment where the prime point is whether the adjudicator applied the right test in considering Article 8"
"…. was entitled to find that interference with the appellant's Article 8 rights would be proportionate. She had in mind that he had forged a considerable private life albeit in the context he knew he was liable to removal at any time. As is now well settled, decisions on proportionality are matters of judgment on which an appellate court will only interfere if there is a material error of law. Such matters do not normally raise any issue of law and I can detect none here."
"It not infrequently happens in Article 8 cases, and this is an example, that arguments are advanced that the claimant has in some way contributed to the community during the time he has been in the United Kingdom. In the present case the appellant has set up a business that employs a number of people. In my judgment contribution to the community is not a freestanding factor falling to be taken into account when weighing the proportionality test in Article 8. It may, however, have some relevance if it forms part, for example, of the private life forged by the appellant whilst here."
Lord Justice Richards :
Lord Justice Ward:
Order: Appeal allowed