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Cite as: [2001] UKIAT 00613

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JISCBAILII_CASE_IMMIGRATION

    Nhundu & Chiwera v Secretary of State for the Home Department (Zimbabwe) [2001] UKIAT 00613 (01 June 2001)

    01TH00613, CC-21729-2000

    IMMIGRATION APPEAL TRIBUNAL

    Date of hearing: 15/03/2001

    Date Determination notified: 01 June 2001

    Before

    MR C M G OCKELTON (DEPUTY PRESIDENT)
    MR M W RAPINET
    DR H H STOREY

    Between

     

    Nhundu & Chiwera APPELLANT
    and  
    Secretary of State for the Home Department RESPONDENT

    DETERMINATION AND REASONS

  1. This case is one of the first to raise issues under section 65 of the Immigration and Asylum Act 1999. It requires the Tribunal to examine in particular certain aspects of the protection afforded by article 8 of the European Convention of Human Rights to the right to respect for private and family life in the context of a decision proposing removal of two appellants to Zimbabwe.
  2. The appellants, citizens of Zimbabwe, have appealed with leave of the Tribunal against a determination of Adjudicator, Mr K Kimnell, dismissing their appeal against the 14 October 2000 refusal of the Secretary of State to grant them leave to enter on asylum grounds. Mr N Oakeshott of RLC appeared for the appellant. Mr Erne appeared for the respondent.
  3. The two appellants currently aged 20 and 27 respectively are related as cousins. Both were orphaned at an early age and brought up by their aunt, Agnes Hare at their home in Shashi, a settlement area of Mvuma. That was until three years ago when she came to the UK to live with her husband who is white. Both appellants claimed to fear persecution at the hands of war veterans and ZANU (PF) supporters who had threatened and pushed them around on a number of occasions because of their involvement in and support for the MDC (Movement for Democratic Change) particularly during the recent elections. An additional if not the underlying motive on the part of their political opponents was said to be racial antagonism towards their aunt (Agnes Hare) for having married a white man living in the United Kingdom.
  4. The adjudicator, however, dismissed their asylum appeal. One of his findings was that he did not accept that the treatment they had received in the past was sufficiently serious or persistent enough to amount to persecution. He also dismissed their appeals on human rights grounds. He saw no breach of article 3 because they were unlikely to suffer maltreatment within the scope of that article upon return. Nor did he accept that any breach of article 8 was involved. Neither appellant in his view had an existing family life tie with their aunt. Even if he was wrong about that, he went on, he did not accept that the decisions refusing them leave to enter on asylum grounds and proposing their removal to Zimbabwe were a disproportionate interference with their right to respect for family life.
  5. Mr Oakeshott did not pursue the appeal against dismissal of the asylum appeal. Nor did he maintain any challenge to the adjudicator's finding that the appellants would not face a real risk of harm that would be sufficiently serious to come within article 3. However he asked us to find that there was a violation of article 8 of the European Convention on Human Rights because there were existent private and family life ties between the appellants and their aunt. He asked us to find that the adjudicator was wrong to find the decision refusing them leave to enter and proposing their removal to Zimbabwe did not amount to a disproportionate interference with their right to respect for private and family life. Whilst the adjudicator had said that they would not face serious harm, he had found that they would face harm in the form of threats and some physical harassment. This level of harm, albeit below the high threshold of article 3, should have been given more weight in the adjudicator's balancing exercise under article 8.
  6. Mr Erne asked the Tribunal to confirm the adjudicator`s findings on the asylum claims and the claim under article 3. Regarding article 8 he argued that, unlike article 3, it could have no extra-territorial effect. In the context of a decision to remove, no regard could be had to the non-serious types of harm that would face the appellants upon return. As regards the appellants` claim to have family life ties in the UK, he asked us to agree with the findings of the adjudicator that there were no existing family life ties. Furthermore, in evaluating such ties, it was not open to the adjudicator or the Tribunal to take into account any developments since the date of decision, i.e. since 14 October 2000. To take account of any facts in existence since that date would be, he argued, to contravene s.77(4) of the 1999 Act.
  7. The decisions appealed against in this case were made on 14 October 2000. This being a date after 2 October 2000 they fall to be determined under sections 69 and 65 of the Immigration and Asylum Act 1999.
  8. The s. 69(1) asylum appeals

  9. The appellants do not challenge the decision of the adjudicator to dismiss their asylum appeals. Since however he refers back to his findings on the asylum appeal when evaluating the human rights claims, it is salient to note what his conclusions were on the former.
  10. At paragraph 39 he wrote:
  11. "on the evidence as it emerged at the hearing I do not accept that the appellants have any well-founded fear of persecution if returned to Zimbabwe on account of their political opinion because of the very peripheral nature of their involvement, the fact that they have suffered no maltreatment in the past which amounts to Convention persecution and the very important evidence they gave that the appellants themselves do not really believe that their connection to the MDC was anything other than secondary."

    At paragraph 44 he wrote:

    "Taking into account the lack of evidence of persecution against whites generally in Zimbabwe, the tenuous connection of the appellants in this case to their white British uncle and the absence of treatment in the past which crossed the threshold of persecution, I conclude that there is no well-founded fear of such persecution if they were to return to Zimbabwe at the present time."
  12. Whilst the adjudicator accepted the appellants as credible in general, he clearly did not accept that the threats and harassment the appellants had faced in the past and were likely to face in the future were quite as serious as described by the appellants: in particular he did not accept that threats made against them amounted to threats to kill.
  13. The s.65 human rights appeals

  14. The decision against both appellants was to refuse leave to enter on asylum grounds and to propose directions for removal to Zimbabwe. Section 65(1) of the 1999 Act states:
  15. "A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person`s entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision..."

    We are satisfied that the decisions in question were ones "relating to [the appellants] entitlement to enter or remain in the United Kingdom". We are further satisfied that under s.65(4) we have jurisdiction to consider the question thus arising of whether the adjudicator was correct to conclude that in taking these decisions the respondent had not acted in breach of the appellants` human rights.

  16. In the grounds of appeal the appellants based their human rights claims on two articles of the European Convention on Human Rights: articles 3 and 8.
  17. Article 3

  18. Before us Mr Oakeshott for the appellants did not maintain the challenge to the adjudicator's conclusion that article 3 had not been violated. However, since his remaining grounds raising article 8 rely to some extent on the same body of evidence evaluated by him when considering the asylum and article 3 claims, it is important that we make some limited observations about his treatment of this body of evidence.
  19. The crux of the adjudicator's findings on the article 3 claim was that the appellants had not shown that upon return to Zimbabwe they would face a real risk of torture or inhuman and degrading treatment or punishment. He accepted that in the past they had faced verbal threats and relatively mild intimidation (pushing around) from Zanu (PF) war veterans. He also accepted that these types of harm were on account of a Convention ground of political opinion ( possibly other grounds as well). In regard to the harms the two would face on return, he appears to have accepted that they were likely to continue but would stay at the same sub-article 3 level:
  20. His conclusions on the two appellants were as follows:
  21. "The first appellant has been pushed and insulted, though never injured, intermittently over a relatively short period and songs have been sung outside his home. The appellant did not suffer any injury at the time and there has been no lasting harm or damage either physical or mental. In the circumstances of this appellant I find that the treatment about which he has complained does not attain the minimum level of severity to amount to either inhuman or degrading treatment.

    In relation to the second appellant, Blessings Chiwera, he too complains of insults and having been pushed. For reasons already given I do not accept that he has been threatened with being killed. In evidence he indicated that he had suffered rather less than he described at interview because he said the worst that had happened to him was personal abuse. He has never been injured."

  22. We consider that Mr Oakeshott was right not to maintain any challenge to these conclusions. The adjudicator's understanding of the article 3 test was entirely in keeping with that of the European Court of Human Rights, as stated in Ireland v UK (1979) 2 EHRR 25 para 162 and subsequent judgments.
  23. We would underline, however, that the types of harms the adjudicator identified as likely to face the appellants again clearly did amount to mental and physical harassment. Albeit he found them less serious than they themselves described, he did accept "that both appellants have been subjected to abuse and some physical contact from war veterans or ZANU (PF) members." He also accepted that these types of harm were aggravated by having a racial motivation namely "disapproval of their aunt`s inter-racial marriage". But he rejected the claim that their tormentors` threats amounted to a threat to kill. Rather he found that the motive behind them was "?to encourage them to leave the area". To summarise, whilst he did not find a real risk of serious harm, he did find a real risk of a continuing level of lesser harms designed to displace them from their home in Shashi.
  24. Article 8

  25. We turn next to Mr Erne`s preliminary objection to the appellants` reliance on article 8. It was that this article has no extraterritorial effect. That issue is to be addressed in full in a forthcoming starred Tribunal determination. We can deal with it very shortly here since Mr Erne himself accepted that he could not cite any case either from Strasbourg or the UK in support. Given his inability to support it, we can limit ourselves here to stating that the notion that article 8 could not have any extraterritorial effect in the sense contended for is plainly contrary to established Strasbourg jurisprudence as well as to leading UK cases dealing with article 8 in the context of decisions to deport or remove a person. In any event the ground of appeal under s.65 is that the UK government has acted in breach of the rights of appellants who are within the territory of the United Kingdom. In such a context it is difficult to see how extraterritoriality can even arise as an issue in the first place.
  26. The adjudicator`s treatment of article 8 was not crystal-clear. He appears to have divided his treatment of it into two parts. He first of all examined whether there was an existent family life. Next he considered whether (assuming he was wrong in concluding there was none) there had been a disproportionate interference with the appellants` family life.
  27. His principal finding was that neither of the appellants had a family life tie with their aunt, Agnes Hare. He gave three main reasons. First, for the past three years "the only contact" between the appellants and their aunt was her visit in November 1999. Secondly, apart from provision of money for the air tickets, there was "no evidence" that the appellants` aunt had contributed financially. Thirdly, the first appellant was now eighteen and therefore both appellants were adults.
  28. Later on in the same paragraph he mentioned other factors: that they had family ties in Zimbabwe especially with their grandmother; that there is no general obligation under the Convention on state parties to admit family members of those who are within their jurisdiction; that their aunt had no expectation that the second appellant would join her as she had left him in the care of her mother who was part of the same household. For reasons which will become clear, he should only have treated these factors as relevant to the issues of interference and proportionality; they were not as such relevant to the question of whether or not there was an existent family life between the appellants and their aunt.
  29. Having decided that there was no family life but gone on nonetheless to consider whether there was a disproportionate interference with their family life, he concluded that:
  30. "Given the tenuous connection between the appellants and their aunt during the last three years and the existence of other relatives in Zimbabwe, including the grandmother, with whom family life can be enjoyed, balanced against the right of the state to control immigration the refusal of leave in the case of these two adult men is entirely proportionate. It has not been disputed by Mr Symonds that the decision is in accordance with the law."
  31. In the opinion of the Tribunal the adjudicator fell into error in his approach to article 8.
  32. 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. Adopting this method of analysis enables us to make the following observations.
  33. Existent private or family life.

  34. The adjudicator erred in considering that the appellants could only bring themselves within article 8 if they could demonstrate an existent family life. Article 8 (1) reads:
  35. "Everyone has the right to respect for his private and family life, his home and his correspondence"".
  36. Thus the adjudicator should also have considered the question of whether there was existent private life or family life. In this regard he should have borne in mind that the Court views the private life concept as a broad one that includes not only the idea of an "inner circle" in which individuals may live their personal lives as they choose without interference from the state; it also covers the right to develop one`s own personality and to create and foster relationships with others: Niemietz v Germany (1993) 16 EHRR 97. In the context of immigration and asylum cases, the Court has come to view the right to respect for private and family life as a composite right. This approach requires the decision-maker to avoid restricting himself to looking at the circumstances of "family life" and to take into account also significant elements of the much wider sphere of "private life": Chorfi v Belgium 7 August 1996, Bouchelkia v France judgment of 29 January 1997(paragraph 41) , El Boujaidi v France 26 September 1997 and Mehemi v France 26 September 1997 and Nasri v France (1996) 21 EHRR 458. One consequence of this approach is that a person may be able to establish a protected right under Article 8 either by reference to significant elements of family life or significant elements of private life or a mixture of both.
  37. We do not think, however (for reasons given below), that on the facts of this case this error negated the validity of his eventual findings.
  38. Applying this approach according to the step-by-step method used by the Court, we first of all ask what significant elements of a family life, if any, exist in this case?
  39. The adjudicator saw this question as requiring focus on whether there were existent family ties between the appellants on the one hand and their aunt on the other. We consider he was correct to do so. Of course the appellants also had existing family life ties with their grandmother in Zimbabwe who had looked after them for the past three years. Possibly such ties extended to other persons in that household. Given that the two were orphans who had been subsequently brought up together in the same household, it is safe to assume that between the two appellants there was also a family life tie closely analogous to that between brothers. However, their appeal is against a decision which includes a proposal to remove them from the United Kingdom. In order for that appeal to succeed it is plain that the relevant tie to be established has to be that between them and their aunt in the UK.
  40. Before proceeding further, it is necessary to address allegations made in the grounds of appeal that the adjudicator had made certain factual errors. When considering contact between the two appellants the adjudicator found there to have been none over the past three years apart from the visit by their aunt in November 1999. As a description of their recent physical contact that was plainly correct. However, we would agree with Mr Oakeshott that he was wrong to ignore evidence of other forms of contact. It was quite evident that some other forms of contact there must have been, since the adjudicator accepted that she had paid for their air tickets. And he did not reject the evidence given by their aunt that she had being "kept informed" about what was happening to the appellants. He had also accepted that she had written one letter in particular to them and had given them advice on how to buy the tickets to the UK and how to travel once here. Nor did he anywhere question that in their eyes and hers she was their "mother".
  41. In the grounds of appeal it was also alleged that the adjudicator had wrongly overlooked the fact that the appellants` aunt had been regularly sending them 100 a month to pay for the essentials of living and for the second appellant`s school fees. However we can find no reference to this in any of the written statements or interview records before the adjudicator. Nor does it seem to have been mentioned at the hearing. Nor has any firm evidence being placed before us to support this claim. Accordingly we see no error in the adjudicator's conclusion that apart from contributing towards their journey to the UK , there was no satisfactory evidence of financial assistance. Be that as it may, our conclusions on the existence of family life and other aspects of the article 8 claim would have been the same even if we had been satisfied that the aunt had regularly supported the two appellants financially.
  42. It is clear from the three main reasons the adjudicator gave for concluding there was no family life that he adopted a factual approach, i.e. an approach which looks at whether there is substance in fact to the claimed family life relationships. Of course, had the tie between Agnes Hare and the second appellant being a natural parent-child one, such an approach would have been incorrect, since at the date of decision he was still a minor and the European Court of Human Rights has often seen natural ties between a parent and child as normally giving rise to family life ipso facto: Berrehab v Netherlands (1989) 11 EHRR 322. However as the tie was not of this kind, he was right to adopt a purely factual approach.
  43. The Court has applied its factual approach on a case-by-case basis. In Moustaquim v Belgium (1991) 13 EHRR 802 it did not consider that a five year separation between the twenty-one year old applicant and his parents had ended their family life tie because he had kept in touch by correspondence. In Gul v Switzerland (1996) 22 EHRR 93 a separation of over seven years between the applicant and his eight year old son was likewise seen not to negate a family life tie because the applicant had repeatedly asked the Swiss authorities to allow his son to join him and he had visited him several times in Turkey. In Nsona v Netherlands 28 November 1996 the Court chose to assume that there existed family life ties between an orphan child and her aunt.
  44. In the light of Strasbourg jurisprudence, we are satisfied that the adjudicator`s application of a factual approach to the circumstances of the first appellant`s claim was correct. Even accepting that he had grown up regarding his aunt as his mother and that when she went to the UK she left both appellants to be looked after by their grandmother, Cornelius had by then already reached adulthood. He had also already entered the job market having worked for a time as a labourer and a store attendant. Notwithstanding that his aunt had visited in November 1999 and notwithstanding her evident ongoing concern and affection for him and her financial efforts to help him come to the UK, he is now a twenty seven year old in good health who has already had experience in the employment field. Accordingly the adjudicator was right to conclude that the family life tie with his aunt has effectively being broken either some time before or when she left for the UK. We are also satisfied that given his age, his health and his experience of working life, his arrival in the UK has not resulted in a family life tie being recreated between them. 34. However in his application of the factual approach to the circumstances of the second appellant he fell into error. Unlike Cornelius, Blessings was still a minor at the time when his aunt left for the UK. In the light of this fact other indicia of a de facto family relationship with his aunt should have carried more weight than they did in the case of the first appellant. They included: the fact that both of them were orphans who had grown up regarding their aunt as their mother; that even after she left she had been kept informed about their well-being; that she had visited them in November 1999 and that she had taken active steps, including in the form of financial assistance, to arrange their visit to the UK. Thus we do not think that the family life tie between him and his aunt had been broken when she left for the UK and we think that when he arrived it was effectively continued.
  45. Accordingly the adjudicator was correct to find no existent family ties between the first appellant and the aunt but incorrect to find none between the second appellant and the aunt.
  46. In order to obtain a full picture of the appellants`s private and family life as protected by article 8, it is also necessary to go on to consider whether there were significant elements of private life present as well. We are bound to say on the facts of this case that it is difficult to see that either appellant could rely on any significant elements of private life . By the time the decision to refuse them leave to enter was made the appellants had only been in the UK a week and during that period were placed in Oakington, not with their aunt. Not only has their time in the UK being of short duration, there is no evidence of any ties with others in the UK apart from their aunt. They had not gone to school or engaged in employment.
  47. However, the fact that adjudicator erred in concluding that in the case of the second appellant there were no existent family life ties, did not fundamentally flaw his determination. That is because, on the assumption that he was wrong on this point, he went on to consider the further stages of article 8 analysis. Although he did not distinguish them as much as he should have, it is quite clear that he considered the claim as to whether the decisions appealed against amounted to a disproportionate interference with the appellants` right to respect for family life. Dealing with each stage ourselves we would make the following observations.
  48. Interference

  49. Strasbourg cases dealing with the application of article 8 to issues of immigration sometimes treat the next issue arising as one of interference and sometimes as one of lack of respect. The latter is concerned with a failure by the national immigration authorities to fulfil its positive obligation to ensure that the right to family life is guaranteed. Focus on lack of respect rather than interference has been the approach of the Court in cases which are clear-cut cases of applications for entry or admission. However, the decision to refuse leave to enter in this case was combined with a proposal to remove the appellants to Zimbabwe. Thereby the appellants were in effect asking the authorities to comply with a negative obligation not to remove them because this would result in their being unable to further develop their family life with their aunt here.
  50. In general the Court has stated that the criteria to be applied when examining cases under either the lack of respect or interference categories are essentially the same: see Ahmut v Netherlands (1997) 24 EHRR 62. However, there has been one signal difference in how the criteria have been applied in cases of removal. The Court has been more easily satisfied that that type of decision can amount to an interference: see Berrehab v Netherlands (1989) 11 EHRR 322 Beldjoudi v France(1992) 14 EHRR 801, Nasri v France (1996) 21 EHRR 458 Only in unusual circumstances has it not seen a threat of removal to constitute an interference. Thus in Nsona v Netherlands judgment of 28 November 1996 the Court found that there was no interference with the applicant`s right to respect for family life because the aunt had mislead the authorities in claiming that her niece was her daughter.
  51. The adjudicator did not specify whether he regarded the relevant issue in this case as interference or lack of respect. Having found no existent private and family life ties between the first appellant and his aunt, it is only in respect of the second appellant that it is necessary to proceed to this next stage of examining whether there was an interference with or lack of respect for the family life tie between him and his aunt.
  52. In the light of our analysis of Strasbourg case law on the concept of interference in the context of a removal decision, we are prepared to accept that the issue to be examined is whether there has been an interference with, rather than a lack of respect for, the second appellant`s family life caused by the proposal to remove him to Zimbabwe.
  53. However we do not think on the facts of this case that this decision can be described as an interference, even taking full account of the position in Strasbourg case law that decisions to remove are considered as an interference save in unusual circumstances. Here the circumstances are unusual. For reasons already given we are prepared to accept that prior to and as at the date of decision there still existed a family life relationship between the two of them. But prior to the second appellant`s arrival in the UK the day-to-day relationship between him and his aunt based on living in the same household had been ended of the aunt`s own volition, when she decided to go to the UK to live with her British citizen husband. There is no evidence that she did not choose to leave freely. Furthermore, when the second appellant arrived, the decision to remove him was taken before he had begun to live with her. In such circumstances we fail to see how the removal decision can be described as a disruption of any kind. 43. Even assuming, however, simply by virtue of being a removal decision the decision in question did constitute an interference, we would not therefore have allowed the second appellant`s appeal. 44. There will only be a violation of article 8, however, if the interference is not justified. Article 8(2) case law analyses justifiability by reference to three further tests: pursuit of a legitimate aim, in accordance with the law and proportionality.
  54. It will be recalled that even though he rejected the claim that either appellant had an existent family life, the adjudicator did nevertheless go on to consider hypothetically whether the decision taken against both appellants amounted to an unjustifiable interference under article 8(2). Given our earlier conclusion that there was no private or family life tie between the first appellant and his aunt, our own assessment of these further requirements is limited to the decision made against the second appellant. Legitimate aim
  55. The adjudicator did not expressly say whether he considered that the removal decisions pursued a legitimate aim, but we are satisfied that they did. The article 8(2) ground of "prevention of disorder or crime" has regularly been held by the Court to cover the maintenance of effective immigration controls. It may be that the removal also pursued the legitimate aim of "economic well-being of the country": see Bensaid v UK judgment of 6 February 2001.The appellants had originally come to the UK for the purposes of a visit. Once their subsequent claim on asylum and human rights grounds was found wanting, the immigration authorities were fully entitled to proceed to propose directions for their removal.
  56. In accordance with the law.

  57. As noted by the adjudicator it was not in dispute between the parties that the decisions taken in this case complied with the further requirement contained within article 8(2) that the decision be "in accordance with the law".
  58. Proportionality

  59. The test of proportionality is an integral part of the requirement in article 8(2) that the interference be "necessary in a democratic society". The adjudicator's reasons for concluding that the decisions were proportionate were first of all the tenuous connection between the appellants and their aunt during the last three years, secondly the existence of other relatives in Zimbabwe, including the grandmother with whom family life can be enjoyed, and finally the countervailing right of the state to control immigration.
  60. The proper approach enjoined by the Strasbourg institutions to assessing the proportionality of interferences with family life in the context of immigration and asylum cases has been set out very clearly by the Court of Appeal in R (on the application of Mahmood) v Secretary of State for the Home Department [2001] INLR 1. Although oriented towards the situation of spouses, its treatment also covers broader categories. After discussing leading cases in Strasbourg including Abdulaziz v UK (1985) 7 EHRR 471, Poku v UK (1996) 22 EHRR CD 94 (a Commission decision) , Gul v Switzerland (1996) 22 EHRR 93, Berrehab v Netherlands (1988) 11 EHRR 322, Moustaquim v Belgium (1991) 13 EHRR 82 and Beljoudi v France (1991) 13 EHRR 82, the Master of the Rolls stated:
  61. "From these decisions I have drawn the following conclusions as to the approach of the Commission and the European Court of Human Rights to the potential conflict between the respect for family life and the enforcement of immigration controls:
    (1) A State has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations. (2) Article 8 does not impose on a State any general obligation to respect the choice of residence of a married couple. (3) Removal or exclusion of one family member from a State where other members of the family are lawfully resident will not necessarily infringe article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family members excluded, even where this involves a degree of hardship for some or all members of the family. (4) Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a State if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled. (5) Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates article 8. (6) Whether interference with family rights is justified in the interest of controlling immigration will depend on (i) the facts of the particular case and (ii) the circumstances prevailing in the State whose action is impugned."
  62. With this summary of Strasbourg jurisprudence by Lord Phillips MR in mind, we turn to the facts of the present case, looking first at the situation in the UK and second at the situation in the country of origin. As regards the quality of the appellants` ties to their aunt in the UK, we find that even though we would not go as far as the adjudicator in describing them as "tenuous", the appellants had spent scarcely any time in the UK and, at the date of decision, had not even lived with her here. In addition they had not lived together with her for the previous three years, except during her short visit in November 1999. Furthermore, as already noted, there were no significant private life elements connecting them to the UK. They had not gone to school in the UK, they had not worked here and there is no evidence that they had - save perhaps for their aunt`s husband - any other relatives or close friends here. Nor, having been refused leave to enter, did they have lawful residence in the UK. Although their aunt was lawfully resident, she had only lived in the UK for three years. As such she did not have long-established ties through residence in the UK. It is also apparent that both they and their aunt knew, when they came to the UK, that their own immigration status was going to be uncertain, unless they could succeed in their asylum claim. The second appellant had not applied from abroad to join his aunt in the UK as a minor child or dependent relative. The ties between the first appellant and his aunt do not even constitute family life ties, and the second appellant`s family life ties with the UK are relatively weak. There are no significant elements of private life either. Hence the balancing exercise which we are required to conduct under article 8 leads us to attach much more weight to the legitimate interest of the immigration authorities in controlling immigration.
  63. Turning to their situation in Zimbabwe, the adjudicator correctly noted that there they had significant private life and family life ties: they had been living there for the past three years with their grandmother and other relatives; they had done their schooling there; they had been active in community life. Given the advanced age of their grandmother (she is over 80) it was not likely that this tie would continue for much longer, but on the other hand both appellants were at an age when it could be expected that they would lead an independent life.
  64. Mr Oakeshott has urged us not to approach the article 8 balancing exercise in the same way as in a typical deportation case. There are, he submits, vital differences stemming from the fact that both appellants would be returning to face a continuing level of threats and harassment from the war veterans and other ZANU (PF) supporters. In addition their aunt, whose own family life interests under article 8 must also be respected, would not, he continued, be able to return to Zimbabwe to resume her family life with the appellants there. In developing these points he has invoked Strasbourg cases that have established, as one component of the right to respect for private life, the likely violation to the appellants' "physical and moral integrity".
  65. We agree with Mr Oakeshott that the likelihood of continuing threats and harassment animated by political and racial motives alters the picture somewhat. Making use of the terminology most commonly employed by the Strasbourg institutions, the appellants are saying that there would be serious or insurmountable obstacles to enjoyment of their private and family life in Zimbabwe.
  66. We would accept that in principle an appellant whose private and family life ties in the UK were not on their own strong enough to give rise to a violation of article 8 could nevertheless succeed under that article if removal would expose him or her to a real risk of significant harms or serious obstacles, albeit harms falling below the article 3 threshold. 55. However on the facts of this case we do not find that there are insurmountable obstacles to the appellants enjoying either private and family life or the right to respect for their home. The adjudicator's findings in relation to the risk facing the appellants amounted in essence to a finding of a continuing risk of low-level harassment in the form of threats and mild physical intimidation. It is of course far from ideal that the appellants should not be able to live without exposure to these types of harm. But as was said by the Court in Soering v UK (1989) 11 EHRR 439:
  67. "Article 1 [ which places on State parties the obligation to secure the rights as set out in the Convention] cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention".
  68. This proposition would seem to hold good whether what is involved is extradition or removal. Article 8 being a qualified right, assessment of the risks posed by removal must be balanced against the interests of the state and the wider community in the maintenance of effective immigration control. It is legitimate therefore for the state to remove an appellant unless the threat posed to his article 8 rights would have the effect of nullifying those rights completely. We note that even in respect of article 6, a right less qualified in kind than article 8, Strasbourg has only been prepared to consider a decision to remove a person contrary to this right if in the country of origin he would face a " flagrant denial" of the right to a fair trial: see M.A.R. v UK. 28038/95 (Dec) January 16 1997.
  69. In the present appeal we cannot see that there would be any serious denial of their article 8 rights or any other qualified rights. There was no evidence that the appellants would face economic destitution or even economic disadvantage. It is true that the first appellant was unemployed at the time he left Zimbabwe. But he did not claim that he had been prevented by ZANU(PF) supporters from working previously and he did not attribute his unemployment to their harassment of him and his brother. There was no evidence that the second appellant`s schooling had previously been affected or that his own job prospects now he had left school would be in jeopardy. There is no suggestion that the grandmother and other family members of her household have been compelled to leave their home. Furthermore, the objective country materials indicated that serious attacks on persons and property by the war veterans and ZANU (PF) supporters were for the most part directed against active MDC members and white farmers. Albeit the adjudicator had found that the threats against the two appellants were intended to force them to move, he had also found that they did not go beyond verbal abuse and limited physical intimidation. Although it appeared that both appellants would be at risk of further difficulties with ZANU (PF) supporters if they played an active part in the MDC, the evidence before the adjudicator was that their connection to that party was peripheral.
  70. That brings us to Mr Oakeshott`s contention that because of the climate of harassment the aunt "could not reasonably go to live in Zimbabwe at present" to rejoin her family there. We are aware that it was part of the aunt`s evidence that when she returned to visit in November 1999 she did not know beforehand that there would be dangers arising from the political situation. We are prepared to accept that - subject to the qualification that those dangers would not have exceeded those found to face the two appellants. However, there is no evidence that she had left Zimbabwe because of any fear of persecution or harassment. Furthermore, it has never been suggested that she was living in the UK with her husband out of necessity rather than choice.
  71. We find, therefore, that return for these appellants would involve a degree of hardship, but would not give rise to insurmountable obstacles such as would cause a violation of article 8.
  72. The issue of the appellants` right to physical and moral integrity as an aspect of the right to respect for private life

  73. The other way in which Mr Oakeshott put his argument under article 8 was by reference to Strasbourg case law which has elaborated the individual`s right to "physical and moral integrity" and has recognised that the protection afforded by article 8 to an individual's physical and moral integrity can be wider than that contemplated by article 3. In support Mr Oakeshott cited three cases: Costello-Roberts v UK (1995) 19 EHRR 112, X and Y v Netherlands (1985) 8 EHRR 97 and Raninen v Finland (1998) EHRR 563. Since we heard these appeals we have become aware of two further cases analysing the physical and moral integrity notion: Bensaid v UK judgment of 6 February 2001 and Conka v Belgium judgment of 13 March 2001. The former concerned an Algerian who was a schizophrenic suffering from a psychotic illness. He claimed that requiring him to leave the UK despite his serious medical condition would violate his physical and moral integrity. Since both these cases essentially reaffirm principles established in the cases relied upon by Mr Oakeshott, we decided there was no need to invite the parties to make further specific submissions on either of these cases.
  74. We do not find that this body of case law assists Mr Oakeshott`s argument. In Raninen v Finland which concerns a complaint about handcuffing of an applicant whilst in detention, the Court noted:
  75. "In the case under consideration, as noted above, the applicant based his complaint under Article 8 on the same facts as that under Article 3, which the Court has considered and found not to have been established in essential aspects. In particular, it had not been shown that the handcuffing had affected the applicant physically or mentally or had been aimed at humiliating him In these circumstances the Court does not consider that there are sufficient elements enabling it to find that the treatment complained of entailed such adverse effects on his physical or moral integrity as to constitute an interference with the applicant`s right to respect for private life as guaranteed by Article 8 of the Convention".
  76. In Bensaid v UK the Court`s conclusions were as follows:
  77. "Turning to the present case the Court recalls that it has found above that the risk of damage to the applicant`s health from return to his country of origin was based on largely hypothetical factors and that it was not substantiated that he would suffer inhuman and degrading treatment. Nor in the circumstance has it been established that his moral integrity would be substantially affected to a degree falling within the scope of Article 8 of the Convention. Even assuming that the dislocation caused to the applicant by removal from the United Kingdom where he has lived for the last eleven years was to be considered by itself as affecting his private life, in the context of the relationships and support framework which he enjoyed there, the Court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure "in accordance with the law", pursuing the aims of the protection of the economic well-being of the country and the prevention of disorder and crime, as well as being "necessary in a democratic society" for those aims.

    Accordingly it finds that the implementation of the decision to remove the applicant to Algeria would not violate Article 8 of the Convention".

  78. We accept that the circumstances of this case are different from those obtaining in Raninen . Importantly, the appellants` complaint under article 8 is based in part but not wholly on the same facts as those under article 3. They rely in addition on the strength of their ties with their aunt in the UK. However, as already noted, we have found those ties to be relatively weak and, judged as ties to the UK, of very short duration. As regards the nature of the harms facing the appellants on return to Zimbabwe, we have not found that they would be sufficiently detrimental physically or mentally to violate either the appellants` private life or family life. The adjudicator noted at paragraph 46 that : "The [first] appellant did not suffer any injury at the time and there has been no lasting harm or damage either physical or mental". He said similar things about the situation of the second appellant. We have no reason to doubt the accuracy of those findings. 64. The circumstances of this case are also different from those in Bensaid. Of particular importance is that whereas in that case the applicant had not substantiated that he faced any real risk from either state or non-state agents, in the present appeals the appellants have established that they face low-level risks against which the police are unlikely to protect them. However, taking the clear evidence that these risk would not substantially affect the appellants, together with the short period during which they have been in the UK, we consider that their right to physical and moral integrity would not be subject to a disproportionate interference.
  79. The relevance of s.77(4)

  80. Mr Oakeshott has submitted that in reaching our conclusions on this case we should not confine ourselves to facts that were in existence at the date of decision. The difficulty in the way of that submission lies in the wording of section 77, sub-sections (3) and (4). They read:
  81. "(3) In considering; (a) any ground mentioned in section 69; or (b) any question relating to the appellant`s rights under Article 3 of the Human Rights Convention, the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken).
    (4)In considering any other ground, the appellate authority may take into account only evidence ? (a) which was available to the Secretary of State at the time when the decision appealed against was taken; or (b) which relates to relevant facts as at that date."
  82. In view of the express inclusionary words within sub-paragraph (3) of "evidence about matters arising after the date on which the decision appealed against was taken" and the express exclusionary words in sub-paragraph(4) ? "?may take into account only evidence" - it would seem that the clear legislative intent of these sub-paragraphs is to prevent reliance upon post-decision facts outside the domain of article 3. But is the legislative intent to wholly exclude such reliance?
  83. We have considered whether, if s.77(4) were a wholly exclusionary provision, it could be reconciled with the terms of section 7 of the Human Rights Act 1998. Section 7(1) entitles a person to rely on Convention rights in relation to a claim not just that a public authority has acted in a way made unlawful by section 6, but also in relation to a claim that a public authority "proposes to act". Furthermore the requirement in s.7(1) that the person must be a victim of an unlawful act is expressly linked by s.7(7) to the meaning of the term "victim" as given within the Convention. Strasbourg case law on the "victim" concept extends it to persons who allege they are subject to continuing violations of their Convention rights. In the present appeals, the proposal to remove the two appellants plainly has an effect continuing beyond the date on which it was made (14th November 2000).
  84. We cannot see, however, that there is any inconsistency between s. 77(4) of the 1999 Act and s. 7 of the 1998 Act. Section 7 of the 1998 Act cannot be applied in the abstract. By s. 7(1)(b) a person`s reliance on Convention rights can only be made in the context of proceedings (in s.7(1)(b) "legal proceedings") in the appropriate court or tribunal. In the context of proceedings before the immigration appellate authorities we have no jurisdiction under the 1999 Act to consider any decision other than that made on 14th October 2000. Things would be different had the respondent substituted a later decision confirming the 14th October one. But he has not. Thus it is only in the s. 77(4) context of considering the relevance of post-decision evidence that we can consider this evidence at all.
  85. We would accept, however, that if the purport of s.77(4) was to wholly exclude reliance upon post-decision facts insofar as they relate to a non-article 3 claim, then the section is impossible to reconcile with Strasbourg jurisprudence on article 8. To take a very recent example, from the Bensaid v UK case cited earlier, the Court plainly had regard to matters arising after the decision to refuse leave to enter (on 24 March 1997) and the setting of removal directions (for 20 November 1998). It considered for example the state of the applicant's mental illness in the light of 1999 medical reports and 1999 country information: see paras 20, 21, 31,35 and 44.
  86. However the exclusionary intent of s.77(4) is clearly not absolute. Two exceptions are made. That contained in sub-paragraph 4(a) does not arise in this case. The exception contained in sub-paragraph 4(b), however, is in broad terms. Its wording enables account to be taken of evidence about matters arising after the date of decision so long as it "relates to relevant facts as at that date". Whilst this would plainly exclude post-decision evidence that is extraneous to the issues at stake in the appeal, it does appear to us to include facts that cast light back upon the situation as at the date of decision. Thus for example, in a marriage case in which there was an issue concerning intention of the parties to live together permanently, the fact that since marriage a couple had lived together would be evidence relating to relevant facts at the date of decision. Read thus, the provision accurately reflects pre- existing case law on post-decision facts in immigration cases.
  87. Even giving full effect to the sub-paragraph 4(b) exception (read thus), however, we cannot see that it avails these appellants. We understand from Mr Oakeshott that since mid-November 2000 the appellants have been residing with their aunt. Given that they came to the UK with her help, that they had no other contacts here and that they regarded her as their mother, we can accept that such a development was reasonably foreseeable at the date of decision. To that extent it casts light back on the family life situation at the date of decision.
  88. But given the fact that both appellants are now of adult age and that even as at the date of hearing before us, they have lived together with their aunt for only a matter of a few months, we are unable to find that such developments could make any difference to the way in which the decision made in October 2000 stands to be assessed by the appellate authorities on human rights grounds.
  89. For the above reasons the appeals against the determination of the adjudicator are dismissed.
  90. DR H H STOREY (VICE-PRESIDENT)


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