MG (Assessing interference with private life) Serbia and Montenegro  UKAIT 00113
Date of hearing: 13 May 2005
Date Determination notified: 30 June 2005
|Secretary of State for the Home Department||RESPONDENT|
Sympathy for and admiration of an individual do not as such enhance or otherwise affect that person's rights under article 8. Errors of law can occur if fact-finders fail to address question (2) of Lord Bingham's five questions in Razgar  UKHL 27.
"32. Despite significant disability, particularly with respect to his eyesight, the appellant's response, in the face of such adversity, has been most impressive. He could, having arrived in the United Kingdom, have relied entirely upon benefits which might generally have been available to him. However, his personal and moral response to the circumstances in which he found himself led him to pursue an academic career, and to work and save in order to have a serious eye operation undertaken. Taking into account his background, and the adversities which he has had to overcome, his achievements constitute a considerable development of his moral and physical integrity. He has, in this manner, not only developed his skills, and found himself providing a significant contribution to his local community, but he has also established a strong private life in the United Kingdom.
33. There can be no doubt that the enforcement of immigration control is legitimate, and is the duty of the government, so that order can be achieved. However, there are occasions when the particularly circumstances of an individual, when considered in the round, mean that it would be inappropriate, or disproportionate, for the authorities to enforce immigration control. In my view this is such a case, albeit exceptional on the facts. I do not consider that it would be proportionate to require that the appellant now be removed to Serbia and Montenegro. I do not take that view based only on medical issues, as I have rejected his Article 3 claim, notwithstanding such information (sic). However I take his medical condition into account as part of the balancing exercise. In concluding that exercise, I am without doubt satisfied that the requirement that this appellant should be removed form the United Kingdom would be a disproportionate response. His circumstances are not typical or common, but exceptional. Noting Ala  EWHC 521, I therefore consider it appropriate to take a different view from that adopted by the respondent".
"The true position in our judgment is that the HRA and section 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."
"It is not a question of [the Adjudicator's] deferring to the Secretary of State's judgment of proportionality in the individual case. The Adjudicator's decision of the question whether the case is truly exceptional is entirely his own. He does defer to the rules; for this approach recognises that the balance struck by the rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances. In our respectful view such an approach is also reflected in Lord Bingham's words in Razgar, which we have already cited:
'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'."
"32. Where a Rule or extra-statutory provision covers the sort of circumstance upon which an individual relies, e.g. entry for marriage, study, medical treatment or delayed decision-making, but the individual falls outside the specific requirements or limits of the otherwise applicable Rules or policy, that is a very clear indication that removal is proportionate. It is not for the judicial decision maker, except in the clear and truly exceptional case to set aside the limitations set by the executive, accountable to Parliament, and, in the case of the Immigration Rules, approved by Parliament.
33. Where Rules or extra-statutory provisions do not make provision at all for circumstances which an individual may rely on for the purposes of overcoming […] the qualification to an ECHR right which is provided by the legitimate interests of immigration control, his case cannot rationally be considered more favourably than one whose circumstances are covered in principle by some provision of the Rules or of an extra-statutory policy but whose circumstances do not meet the detailed requirements of the Rules or policy".
"35. Compassionate circumstances are often invoked in Article 8 cases, though they may involve in reality no significant aspect of family or private life. A removal decision may be harsh. There are Rules and policies which deal with a variety of compassionate circumstances for entry or remaining in the United Kingdom. If a particular case does not fall within them, the normal conclusion of an assessment of proportionality should be that those circumstances mean that the legitimate interests of immigration control favour removal. A truly exceptional case would have to be made out. Article 8 is not a general provision justifying the overriding of immigration control on general compassionate grounds or where there may be harshness and misfortune from removal. It is a provision which creates rights on specific grounds and only applies where those rights exist; it only precludes the effectiveness of immigration control, as embodied in the rules and extra-statutory policies or concessions, where the individual circumstances are so powerful and exceptional that those considered provisions should not be allowed the effect which would normally be afforded to them".
"The function of a judge in a case of this kind, however, is not to issue decisions based on sympathy. Just as juries in criminal trials are directed that they must not allow their decisions to be influenced by feelings of revulsion or of sympathy, judges must examine the law in a way which suppresses emotion of all kind. The position that they must adopt is an austere one. Some may say that it is hard hearted.''
"If there is any doubt on this point, it should be dispelled. The Convention is directed to the protection of fundamental human rights, not the conferment of individual advantages or benefits."
(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 appellant's appeal is dismissed on human rights grounds.
P R Lane
Senior Immigration Judge
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