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Cite as: [2005] UKIAT 00135, [2005] UKAIT 00135, [2005] UKAIT 135

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    SO (Article 8 impact on third parties) Nigeria UKAIT 00135


    Date of hearing: 23 September 2005

    Date Determination notified: 4 October 2005


    Mr Andrew Jordan, Senior Immigration Judge
    Mr M E A Innes
    Mr H G Jones MBE, JP


    Secretary of State for the Home Department RESPONDENT

    For the Appellant: Mr O. Jibowu, counsel instructed by M J Solomon & Partners
    For the Respondent: Miss S Leatherland, Home Office Presenting Officer

    The purpose of Article 8 is not to preserve the benefits felt by third parties attributable to the appellant's presence in the United Kingdom but to protect the appellant's own private and family life

  1. The appellant is a citizen of Nigeria who was born on 4 April 1970. He is 35 years old. He entered the United Kingdom on 26 March 1998 as a visitor with the purpose of attending his sister who was terminally ill. An extension of leave was granted for a further 12 months. His sister died on 4 August 2000. During the subsistence of his leave, the appellant married on 6 November 1999. He was granted 12 months leave to remain on the basis of his marriage to a person present and settled in the United Kingdom. That leave expired on 8 November 2001. Had his marriage subsisted, he would have been entitled to apply for leave to remain indefinitely. Unfortunately, the marriage broke down in August 2001 and prevented his applying for further leave to remain on the basis of his marriage.

  2. On the day before his leave to remain expired on 8 November 2001, the appellant applied for indefinite leave to remain. Solicitors acting on his behalf alleged that his application should be considered in accordance with the policy concerning the victims of domestic violence. Notwithstanding a request for information and documentary evidence, no suitable material was provided to satisfy the requirements of the Immigration Rules. It is clear that the appellant never satisfied the requirements of the Rules and his application was, accordingly, bound to fail. The appellant had not informed the police of his situation. The police have not issued a caution against his wife. He did not obtain an injunction against her or a non-molestation order or any other protection order. His wife has not been convicted before a court of any relevant offence. Nevertheless, the making of that application provided the appellant with the right not to be removed whilst it was being considered. Mr Jibowu, who appeared on behalf of the appellant, sought to equate that with a right to remain granted by the Secretary of State. We do not accept that submission. In the course of argument, we referred to his status as "the status of irremovability". Since, however, that status was based upon an application for leave to remain which was bound to fail, and did in fact fail, it was a fragile basis upon which to build up a private or family life. The appellant has been in the United Kingdom for somewhat less than four years since his leave to remain expired on 8 November 2001.

  3. By decision made on 18 October 2002, the Secretary of State refused his application for indefinite leave to remain. He took the view that the application was sought for a purpose not covered by the Immigration Rules and was therefore bound to be refused under paragraph 322 (i) of the Immigration Rules. Further, the Secretary of State considered whether the appellant's application on the basis of his being a victim of domestic violence should be considered outside the rules. Given the absence of documentary evidence required in support of it, the Secretary of State refused that application. The exercise of a discretion by the Secretary of State outside the Immigration Rules is not subject to a review by an Adjudicator as to its merits. See paragraph 21 of Schedule 4 to the Immigration and Asylum Act 1999.

  4. The appellant appealed to an Adjudicator, Mrs F. M. Kempton, on the basis that his removal would violate his human rights and, in particular, his rights to private and family life enshrined in Article 8 of the ECHR. This aspect was considered by the Secretary of State who did not consider a violation would occur and concluded that there were no insurmountable obstacles preventing the appellant returning to Nigeria and continuing his private life there. He maintained that the appellant's removal would be a proportionate response given the history that we have related and that his was not an exceptional or a truly exceptional case.

  5. The Adjudicator allowed the appellant's appeal on Article 8 grounds.

  6. The Secretary of State appealed against the decision of the Adjudicator. That appeal now falls to be treated as a reconsideration.

  7. The appellant had argued before the Adjudicator that the Secretary of State had failed to give sufficient weight to representations made on behalf of the appellant under the policy relating to the victims of domestic violence. It was argued that a conviction or injunction were not necessary prerequisites in establishing domestic violence. It has, however, to be said that there is a distinct difference between an allegation of violence made by a spouse and a finding of fact made by a relevant domestic court that such violence has occurred or that the appellant has taken the steps of seeking protection from the police or the courts. We consider that the requirements of the Rules are clear and that there is no need to dilute the sensible and proportionate mechanisms within the Rules in order to comply with the ECHR. The application of the Rules must, of course, be conducted in accordance with the appellant's Convention rights see Rule 2.

  8. More importantly for our purposes, the appellant also claimed before the Adjudicator that, since arriving in the United Kingdom, he had set up his own company. In paragraph 2 of the determination, the Adjudicator refers to a Company with two employees but it is clear from paragraph 11 of the determination that the appellant employs a larger number of staff, some 16. In addition, he is a member of the Friday International Christian Centre Church presided over by Pastor Friday who is himself a member of the British Clergy Leadership Mission to the Middle East for mediation in the Palestinian Peace talks.

  9. The Adjudicator recorded the appellant's work record. He started a valet company providing a valet service to nightclubs; including cleaning, a cloakroom service and a back bar service. His annual turnover stood at 84,000 for the year preceding the hearing. Pastor Friday gave evidence in relation to the efforts made by the appellant in the local community and the significant help he has provided there. He offers pastoral help to drug addicts and drunks. Pastor Friday did not consider he could carry out such activities for a church in Nigeria "as he would have to find a deliverance ministry like his own one in the United Kingdom". That said, it is of course conceded that Nigeria has a huge Christian church and that, regrettably, pastoral help for drug addicts and alcoholics is required there as much as in the United Kingdom.

  10. Mr Jibowu submitted to the Adjudicator, as he did before us, that the Immigration Rules should be applied in a sensible manner. In paragraph 16 of the determination the Adjudicator recorded the submission in these terms:

    "A case has been made for domestic violence. There is no doubt that the appellant has established a private life in the United Kingdom and indeed all his working life has been in the United Kingdom. It would be very disproportionate to the legitimate aim to send the appellant back to Nigeria. Such treatment is for people who bend the rules. The rules are not intended to punish those who have entered the country properly. The appellant provides employment for 16 persons. Removal would be disproportionate to the legitimate aim. It is an exceptional case."
  11. The Adjudicator accepted that submission. In paragraph 19 of the determination, the Adjudicator stated that the appellant had established a private life in the United Kingdom during the time he has been a legitimate resident of the United Kingdom. Whilst it is true that, during the pendency of his application, the subsequent appeal and the later appeal to the Tribunal, he has had the right not to be removed, that does not, in our judgment, amount to a status greater than a right not to be removed. If the application was bound to fail, it can hardly count as a persuasive factor. Given that his right to remain determined in November 2001 as a result of the failure of his marriage some few months before, he has never had any substantive right to remain and his presence is attributable to his pursuing a right to remain under the Rules which was bound to fail. His Article 8 claim was and remains largely fuelled by his extended presence in the United Kingdom whilst the legal process continued to establish that fact. Accordingly, the Adjudicator's reliance upon his lawful presence in United Kingdom for a period of over 6 years appears to us to be misplaced and amounts to an error of law.

  12. The Adjudicator then went on to consider the fact that the appellant employs 16 people and that he also acts as an assistant Pastor in the Reverend Friday's church. She said in paragraph 20 of her determination:

    "I do not know what would happen to his business, as the appellant is the sole director and owner of the business. I do not know if the business could be easily sold with a smooth transition, involving a complete transfer of the undertaking with all 16 employees having their jobs guaranteed. It may be in those circumstances that a purchaser of the company would make a number of persons redundant. There would be in any event a large element of upset and disruption for the appellant's employees if he were to be required to return to Nigeria. That would be a matter outwith the hands of the appellant and the employees. Would such a scenario be proportionate to the legitimate aim of immigration control? I doubt that, as the appellant is a taxpayer who provides work for 16 people. I do not see how the possibility of unemployment for 16 people could be justified if that were the result of insisting upon the appellant's removal from the UK. It seems to me that such a step would be Draconian, a sledgehammer to crack a nut, simply to make a point that no one can be exempt from the immigration rules."
  13. In our judgment, that reasoning amounts to an error of law. First, it was for the appellant to establish by credible evidence what, on balance of probabilities, the consequences would be of his removal. The appellant's employees are performing work of the nature described by the appellant. The appellant provided no evidence that this work would not remain available for them to do if he departed. As far as we are aware, no documentary evidence was provided as to the terms of employment. In our judgment, it was wholly speculative for the Adjudicator to rely upon the possibility that a number of persons would be made redundant. If the business is a viable one, it must have a market value. We see no reason why it cannot be disposed of as a going concern, albeit a purchaser may be in a strong bargaining position given the inability of the appellant to remain in United Kingdom. If it is a going concern, the Adjudicator did not give any consideration to whether the business could continue to run whilst the appellant was out of the country. Whilst we accept these considerations are speculative, we are satisfied that it was for the appellant to establish the consequences of his removal and he did not do so. Second, even if the appellant's removal would result in the loss of 16 jobs and the possibility of redundancy, in our judgment, that attracts little weight in an Article 8 claim, if any at all. The purpose of Article 8 is to protect the private and family life of the appellant. It is outside the jurisdiction of the Adjudicator to consider the overall economic welfare of the country and the need to maintain employment. These are matters wholly outside an Adjudicator's expertise and lie squarely within the discretion of the Secretary of State, acting on behalf of the community as a whole. Thirdly, the correct approach by the Adjudicator was to consider whether, given the appellant's obvious ability and, in particular, his entrepreneurial skills, he could not use those skills in Nigeria. Whilst, doubtless, economic opportunities in Nigeria are different, there was no material before the Adjudicator to suggest the appellant could not find work or start his own business on return. In particular, a "valet company providing a valet service to nightclubs; including cleaning, a cloakroom service and a back bar service" is work of the type that is available in Nigeria as well as in the United Kingdom. There will inevitably be substantial differences but it is not the purpose of Article 8 to guarantee to an appellant a type of work or a style of work that he finds particularly congenial. Indeed, it is difficult to see how Article 8 can be used in order to protect a right to work at all, given the high rates of unemployment that exist in many countries and which, at present, do not exist in the United Kingdom. Fourth, the appellant failed to take into account the principles laid down in Tribunal decisions that focus upon the correct approach in such cases.

  14. Miss Leatherland, who appeared on behalf that the Secretary of State, relied upon D (Croatia) [2004] UKIAT 00051, (Ouseley J., President), in which the Tribunal considered the case of an appellant who worked as the manager of an hotel earning a salary which she and her husband needed in order to maintain the mortgage on the house. At the same time she assisted in the childcare arrangements necessary that both might work. Notwithstanding the significant disruption to the appellant's family life, the Tribunal concluded that it was proportionate, particularly since the development of private and family life occurred during a period when the precarious, perhaps tenuous, right to remain was known to the appellant. Miss Leatherland also relied upon the decision in MG (Assessing interference with private life) Serbia and Montenegro [2005] UKAIT 00113, (Mr P. R. Lane, presiding). The decision involved a consideration of the role of "good works" in Article 8 cases. In paragraph 27 of its determination, the Tribunal said:

    "This Tribunal has to say that it has great difficulty with the suggestion that a person can, by choosing to undertake a particular course of study, leading to employment in a job that an Adjudicator regards as socially worthwhile, achieve a greater "moral and physical integrity" than a person who, for whatever reason, does neither of these things. The European Convention and the domestic legislation that underpins it are not to be used by Tribunals as a means of recognising and rewarding what is considered to be industrious conduct on the part of individual. Very many of those who appeal on human rights grounds against an immigration decision have been working or studying in some capacity in the United Kingdom. Very often, those persons originated in countries in which they experienced hardship of various kinds, albeit not amounting to persecution or inhuman or degrading treatment. Such persons, however, routinely fail to show that their removal would be a disproportionate interference with their Article 8 rights."
  15. It is both artificial and unjust to make qualitative decisions about the nature of work undertaken in the United Kingdom. There is no place for a carefully constructed scale of merit so that nurses in the NHS are viewed more favourably than a typist in a private company, although a typist working for the NHS or for Social Services might fare somewhat better than his colleague in industry. As the Tribunal made clear in MG, the purpose of Article 8 is not to reward virtue; we would add, neither is it to punish the Secretary of State for his dilatoriness in processing an application.

  16. For these reasons, we consider that the Adjudicator was wrong in placing so much emphasis upon the fact that the appellant had started a business which employed, so we assume, United Kingdom nationals who paid their taxes and National Insurance contributions.

  17. The appellant also relied upon his work in the Friday International Christian Centre, described by the Revd. Friday as a deliverance ministry. We are satisfied that the appellant has performed truly worthwhile work in the local community assisting those in need in the exercise of his Christian faith. No doubt, the type of church with which the appellant will be associated in Nigeria will be somewhat, or perhaps substantially, different. Nevertheless, the practice of his Christian faith and the outward demonstration of that faith in helping the poor and the needy will be available to him in Nigeria as it is in the United Kingdom. The Adjudicator appeared to focus upon the loss that would be suffered in the United Kingdom by those who benefit from the appellant's ministry. In our judgment, she disregarded the equal benefits that this appellant will be able to provide to those in Nigeria. Once again, we consider the Adjudicator's focus was on preserving the benefits presently provided by the appellant in the United Kingdom to his fellows. The purpose of Article 8 is, however, to protect the appellant's own private and family life and, for those purposes, it is immaterial whether the recipients of his activities are in Nigeria or in the United Kingdom. Accordingly, we are satisfied that the appellant will be able both to work and practice his faith in Nigeria in ways that will not compromise his family or private life. Accordingly, the Adjudicator reached an error of law in concluding that his removal would violate his private life.

  18. This effectively disposes of the appeal. We are satisfied that the response of the Secretary of State is a proportionate one. The appellant has no right to enter or remain in the United Kingdom under the Immigration Rules, far less the Refugee Convention. We do not consider that his activities since arrival, (or his activities since November 2001 when his leave to remain expired), establish any prospect of a violation of his rights were he to be removed. We accept that he has made good use of his time and energies in the United Kingdom but the majority of those energies have been expended during a period when he had no substantive right to remain.


    (1) The Adjudicator made a material error of law.
    (2) the Tribunal substitute for her decision the following:
    a. The appellant's appeal under the Immigration Rules is dismissed;
    b. The appellant's appeal under the ECHR is dismissed.



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