KH

ASYLUM AND IMMIGRATION TRIBUNAL	

MG (Assessing interference with private life) Serbia and Montenegro [2005] UKAIT 00113

THE IMMIGRATION ACTS

Heard at: Field House
On  13 May 2005	Determination Promulgated 
On 30 June 2005
………………………………………..	

	
	
Before	

Mr P R Lane (Senior Immigration Judge)
Mr A E Armitage
Mr H G Jones MBE. JP
	
Between	

	
Appellant	
And	
Secretary of State for the Home Department	
			
		Respondent 	

Representation:

For the appellant:	Ms J Fisher, counsel, instructed by Messrs Dhillon & Co. Solicitors.
For the respondent:	Mr G Saunders, Senior Home Office Presenting Officer. 

DETERMINATION AND REASONS

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 [2004] UKHL 27. 

1.	The appellant, a citizen of Serbia and Montenegro (Kosovo), born on 13 September 1977, arrived in the United Kingdom illegally on 15 September 1999 and claimed asylum one week later.  The respondent refused the appellant's asylum claim but granted him exceptional leave to enter the United Kingdom until 10 October 2000.  When the appellant applied to extend that leave, a further such period was granted until 10 November 2002. When the appellant applied for a second extension, that application was refused.

2.	The appellant appealed against the decision to an Adjudicator, Mr C B Buckwell, sitting at Bromley, who, in a determination promulgated on 20 May 2004, allowed the appellant's appeal on the ground that the appellant's removal to Kosovo would violate Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

3.	On 5 August 2004, the respondent was granted permission to appeal to the Immigration Appeal Tribunal.  By reason of the transitional provisions made under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, the Asylum and Immigration Tribunal is required to deal with the appeal as if it had originally decided that appeal and was reconsidering its decision.  By reason of rule 62(7) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, that reconsideration is limited to the grounds on which the IAT granted permission to appeal.

4.	Those grounds assert that the Adjudicator was wrong to find that the circumstances of the appellant constituted an exceptional case, such as to entitle the appellant to succeed under Article 8.  The grounds further assert that the Adjudicator failed to make a finding on whether the appellant's private life would be disrupted in any way by returning him to Kosovo.

5.	The facts of the case are essentially as follows.   In August 1987, when the appellant was aged ten, he suffered injuries to his hands and eyes as a result of handling a grenade, whilst in a park with his friends.  The appellant lost the sight of his left eye and sustained damage to his right.   He lost three fingers from his left hand and sustained damage to his right thumb.  The appellant underwent an operation which resulted in him regaining some vision in his right eye.   

6.	Over eleven years later, the appellant, together with others, left Kosovo for Macedonia.   After spending five months there, he undertook the journey to the United Kingdom.   Upon his arrival here, the appellant commenced English classes at the South East Essex College, followed by a course designed to lead to the obtaining of Pitman qualifications.  He also completed a course in "life skills" (statement, paragraph 9).   In 2001, the appellant began a course entitled "Access to Social Work" and during that time also worked voluntarily with special needs students.  He undertook GCSEs in Maths and English, achieving a B grade in Maths and a C grade in English.   

7.	In 2002 the appellant began a Higher National Certificate course in "learning support," during which time he was employed part-time by South East Essex College.  At the time of the hearing before the Adjudicator, the appellant was still on that course.  He said it would lead to the second year of a Certificate of Education, which was a teaching qualification that could be used as a first year degree for Social Studies.  The appellant's stated aim was to teach adults with learning difficulties.  At the time of the Adjudicator hearing, the appellant was also still working for South East Essex College as a learning facilitator.   He understood that the College would offer him a position upon his obtaining a teaching qualification.

8.	The appellant had acquired friends in the United Kingdom.   He had also been in a relationship with a lady for some two years, although that relationship had ended by the time of the Adjudicator hearing.  At paragraph 17 of the appellant’s written statement, he said that he and the lady in question hoped "to reconcile our relationship if I am permitted to stay in the UK".  The appellant further stated that he had made his life in the UK and gained qualifications.   He wished to progress further, both educationally and professionally.  He found his employment rewarding as he liked to help people who are in need.

9.	In September 2000, the appellant underwent a cataract operation in the United Kingdom, which involved the insertion of a new lens in his right eye.  The operation appears to have been successful. Before the Adjudicator, there was a letter from Mr Siburn, an optician with Dollond & Aitchison in Southend-on-Sea, stating that, although the appellant had initially been prescribed a cosmetic soft contact lens after his cataract operation (as an alternative to spectacles) he had subsequently been provided with a rigid contact lens on his right eye.  The fitting of that lens had been "fairly complex, due to the irregular eye shape, but after the initial fitting and subsequent adjustment, surprisingly good vision was achieved".   Mr Silburn and his colleagues had continued to monitor the appellant's vision and eye health at regular intervals, "an ongoing and necessary service in view of the fragility of his sight".   The letter concluded by stating that the appellant had expressed concern that the necessary level of clinical care would not be available in his native country.

10.	The Adjudicator did not accept the appellant's assertion that his medical condition was such that it would be a violation of Article 3 of the ECHR to return the appellant to Kosovo.  

11.	The Adjudicator then turned to Article 8.  At paragraph 30 of the determination, the Adjudicator found that the appellant, "has established his private life in the United Kingdom.  He has been in the country for a period of over four and a half years and I am satisfied that he has conducted himself quite properly throughout this period, including ensuring that his immigration status has been properly secured during that period of time".

12.	At paragraph 31, the Adjudicator said he was "satisfied that the circumstances concerning the appellant are really quite exceptional.  He was the victim of appalling injuries at the age of around eleven years, with which he had to live for a number of years thereafter in Kosovo.   Since coming to the United Kingdom the appellant has studied and worked, and he has also undertaken voluntary work.  Thanks to the skill of surgeons, and no doubt very good attention from his opticians, the appellant has now gained much clearer sight in one eye.  The appellant has been studying in a dedicated manner, and is now employed on a full-time basis by South East Essex College.  He is described as being a valuable member of his department, hardworking, honest and having a natural empathy with the students he teaches.  He is now a Learning Facilitator at the college, and also teaches for part of the working week".

13.	The following two paragraphs of the determination read as follows:-

"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 [2003] EWHC 521, I therefore consider it appropriate to take a different view from that adopted by the respondent".

14.	For the appellant, Ms Fisher submitted that the Adjudicator, in reaching the findings set out above, had not erred in law in that he had correctly reminded himself of the relevant cases, as they then were, on the issue of Article 8.  Furthermore, the Adjudicator had adopted the "step-by-step" approach recommended by the Tribunal in Nhundu & Chiwera (01TH0613).  

15.	Plainly, where an Adjudicator or other fact-finder can be shown not to have had regard to the correct legal approach to the issue to be decided, his conclusion on that issue is likely to be defective.  However the corollary is not, as Ms Fisher appeared to imply, that a finding which follows upon an accurate description of the relevant case law cannot in any way be impugned.

16.	At paragraph 33 of the determination, the Adjudicator found that the circumstances of the appellant's case were "exceptional" and that the Adjudicator was therefore entitled, within the context of what the Adjudicator described as a "balancing exercise", to allow the appeal by reference to the private life aspect of Article 8.   

17.	The question of law in the present case is, accordingly, one that may be shortly put.  Can it be said that the Adjudicator was entitled (i) to find  that the facts of this case were such as to require him to undertake the determination of proportionality and (ii) then to find that those facts were so truly exceptional as to make the appellant’s removal a violation of Article 8?  The respondent will be entitled to succeed in having the Adjudicator's findings overthrown only if we are satisfied that no Adjudicator could, on the facts, properly have reached an affirmative answer finding as to (i) and (ii).

18.	At paragraph 59 of Huang [2005] EWCA Civ 105, Laws LJ held that:-

"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."
 
19.	At paragraph 60, Laws LJ rejected the contention that, at this point in the Adjudicator's task, the Adjudicator had to apply any Wednesbury  test to the respondent's decision:

"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'."

20.	The effect of Huang was recently considered by the Immigration Appeal Tribunal (chaired by its President, Ouseley J) in MB (Croatia) [2005] UKIAT 00092.  At paragraphs 32 and 33, the Tribunal found as follows:-

"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".   

21.	At paragraph 35, the President had this to say about the relevance of "compassionate circumstances" in an Article 8 case:-

"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".

22.	What the President of IAT said in relation to Article 8 is underlined by the opinion of Lord Hope in N [2005] UKHL 31.  At paragraph 21 of the opinions, Lord Hope made the following important statement about the task of determining whether the removal of a person with HIV/AIDS, to a country where advanced medical care is not available, would violate Article 3:-

"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.''

23.	It is plain from paragraphs 32 and 33 of the Adjudicator's determination in the present case that his sympathy for, and admiration of, the appellant made the Adjudicator lose sight of the essential purposes of the ECHR, as an instrument to protect a person's fundamental human rights. As Lord Bingham held in paragraph 4 of the opinions in Razgar [2004] UKHL 27:-

"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."

24.	If we look, as we must, at the facts of the appellant's case objectively, shorn of any sympathy or admiration that we may have, it is manifest that his case is in no sense an exceptional one.  So far as the appellant's medical condition is concerned, the position is as follows.  Although seriously injured in an incident involving an explosion in 1987, the appellant had partial sight restored as a result of the medical treatment he received in Kosovo.  He continued to live there for over ten years before coming to the United Kingdom in consequence of the troubles that beset that province in the late 1990s.  As a result of coming to this country, the appellant has been able to undergo a cataract operation, which has much improved the sight of his remaining eye.  His only ongoing medical needs in the United Kingdom at the present time appear to be regular check-ups with an optician and, so Ms Fisher told us, some unspecified type of contact lens solution.  There was no evidence before the Adjudicator to show that such continuing medical needs as the appellant may have would be unavailable in Kosovo.   

25. 	Particularly in the light of the House of Lords' opinions in Razgar, it cannot properly be said that the appellant's medical situation, either alone or in combination with any other factor, brings his case anywhere near an exceptional one, for the purposes of Article 8.  On the contrary, it would be invidious to compare the appellant's situation with that of, say, the claimant in Henao, considered by Lord Bingham in paragraphs 3 and 4 of the opinions in Razgar [2004] UKHL 27, or  the claimant in Bensaid, considered in paragraph 5. Both of those claimants suffered from continuing medical conditions (respectively HIV and schizophrenia) of considerable severity. Both nevertheless failed in their attempts to invoke the ECHR in order to resist removal.  

26.	That the Adjudicator's admiration for the appellant affected the former's approach to Article 8 is clear from the passage in paragraph 32 of the determination where the Adjudicator, taking into account the appellant's background "and the adversities which he has had to overcome" found that "his achievements constitute 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 live in the United Kingdom."

27.	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 an 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 originate from 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.

28.	In fairness to the Adjudicator, his reference in paragraph 32 of the determination to the development of moral and physical integrity appears to be based upon paragraph 31 of the Immigration Appeal Tribunal's determination in Dine [2002] UKIAT 06638, where the Tribunal recorded the submission made on behalf of the claimant in that case, who was said to have "demonstrated that he had travelled a long way in the development of his own moral and physical integrity".  At paragraph 33, the Tribunal found that the "effort made by the appellant, his personal and moral response to his situation and to his environment" were such that the Adjudicator was entitled to conclude that removal would violate Article 8.   

29.	The Tribunal in Dine did not, however, specifically endorse the submission that a person's moral and physical integrity can be significantly affected by subjective assessments of resilience, industry or value to society. That they did not do so is unsurprising, since the then recently decided case of Beqiri [2002] UKIAT 00725 had found to the contrary.  Furthermore and in any event, Dine now has to be read in the light of the subsequent cases of Razgar, N, Huang and MB (Croatia).

30.	The Adjudicator in the present case chose to ignore the fact that Immigration Rules exist which enable a person to be given leave to enter or remain in the United Kingdom on the grounds of employment or for the purposes of study.  The decision whether an immigrant should be permitted to remain for the purposes of carrying out a specified form of employment or programme of study is for the respondent, applying the Immigration Rules. In certain circumstances, an appeal will lie against a negative decision on the ground that the person concerned meets the requirements of the Rules.  But it is not for Adjudicators or Immigration Judges to use Article 8 in order to arrogate to ourselves the functions of the respondent under the Rules, by   imposing our own views as to what sort of job, course of study or voluntary activity is of sufficient benefit to the nation (either actually or potentially)  as to entitle the immigrant to enter or to remain here.

31.	In the present case, the appellant's Article 8 claim was based solely on his private life.  Although he had enjoyed a relationship with a United Kingdom citizen, that had ended and the Tribunal was not informed it had subsequently resumed or that the appellant is currently enjoying in this country any form of family life by reference to any other individual.  The appellant's private life consisted of friends he had acquired during his time in the United Kingdom, his studies and employment, and his hopes for the future.  Stripped of the subjective veneer which the Adjudicator chose to put upon it, there is plainly nothing remotely exceptional about the appellant's private life.   He would, of course, much prefer to remain in the United Kingdom; so too, however, would almost everyone else who makes a human rights claim.   The appellant would be returning to Kosovo in a far better physical and educational condition than when he left it.  There is no evidence that he would be unable to put to good use the industriousness and perseverance he has demonstrated whilst in this country. Nor is there any evidence that the appellant’s actual or prospective employment in the United Kingdom cannot adequately be undertaken by someone who already has the right to live here.

32.	At paragraph 60 of Huang, Laws LJ referred to the Adjudicator's decision on the question of whether a case is truly exceptional as being "entirely his own".   By this, Laws LJ meant to distinguish the Adjudicator's decision from that of the respondent and, in particular, to underline the point that the test of whether something is "truly exceptional" is not dependent upon a Wednesbury analysis of the respondent's decision.    Paragraph 60 is not in any sense to be regarded as authority for the proposition that an Adjudicator's finding that a case is "truly exceptional" is immune to any form of judicial scrutiny.  Such scrutiny is, as we have already stated, limited, in that it must be shown that the Adjudicator's conclusion was wrong in law. But scrutiny there is.

  33.    For the reasons we have given, we find that the Adjudicator's conclusion in the present case does contain such an error.  If the Adjudicator had approached the matter on the correct basis, he could not possibly have come to the conclusion he did. The medical aspects of the appellant’s case amount to no more than a need for eye check-ups and some unspecified form of contact lens solution. There is nothing exceptional about this aspect, either alone or in combination with any other relevant factor. There is nothing in the appellant’s private life that can, on proper analysis, be said to be exceptional. Indeed, as we explain at paragraph 37 below, the appellant’s private life is such that it will continue in all essential respects notwithstanding his removal, with the result that such removal cannot properly be said to constitute an interference of sufficient gravity as to bring article 8 into play. 

34.      The potential for error in this important area will we consider be minimised if the following matters are kept in mind.

35.     The first is to address the questions set out by Lord Bingham at paragraph 17 of the opinions in Razgar. These are:
            
            (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?

36.     In very many cases, errors of law occur beause judicial fact-finders miss out the second of Lord Bingham’s five questions. Having found that a person enjoys a private or family life in the United Kingdom, they then move straight to question (5), in order to undertake the “balancing” exercise of determining whether the interference is proportionate. There is, as we shall see, potential for error in answering that last question, if one assumes wrongly that the balancing exercise is equivalent to the re-taking of a discretionary decision. But in many cases, and particularly where private life alone is at issue, question (2), if properly addressed, will result in a negative answer, thereby obviating the need to address proportionality.

37.      If, as in the present case, the private life consists of a person having a job and friends and carrying on a programme of studies, it is difficult to see how his removal from the United Kingdom can have “consequences of such gravity” as to engage Article 8. A person’s job and precise programme of studies may be different in the country to which he is to be returned and his network of friendships and other acquaintances is likely to be different too, but his private life will continue in respect of all its essential elements.

38.     In BK (Kosovo – Subesh) Serbia and Montenegro [2005] UKIAT 00001, an adjudicator allowed an appeal under Article 8 because he considered that the claimant’s work as an Albanian interpreter (largely in hospitals) and as a “key worker for behaviour improvement programmes” meant that “the prevention of disorder and crime and the protection of health and morals require that [the claimant] remain in this country” (paragraph 4). At paragraph 26, the Tribunal found it “difficult to see that the nature of the work done here properly fits into a state interest of the sort Article 8(2) is dealing with. The possible benefit to the community from the nature of the work is probably better seen as an aspect under Article 8(1) of the private life of the Claimant”. Thus categorised, it is readily apparent that the actual nature of a person’s work and its benefit to the community cannot conceptually have much part to play in arriving at the answer to Lord Bingham’s question (2). To take a hypothetical case, why should a person who works as a brain surgeon have for that reason a greater right to respect for his private life than a person whose employment is as a bus driver?

39.      The second important matter is that mentioned in paragraph 36 above. Even if the analysis of the facts of a case leads as far as question (5), the decision maker is there required to carry out an exercise of judgment  in striking “a fair balance between the rights of the individual and the interests of the community” (paragraph 20 of Razgar).  This task is not the same as deciding whether a discretion exercised by the  respondent in taking a decision under the Immigration Rules should be exercised differently ( see paragraph 21(1)(b) of Schedule 4 to the Immigration and Asylum Act 1999 and section 86(3)(b) of the Nationality, Immigration and Asylum Act 2002). In taking a discretionary decision of that kind, the weight to be attached to any particular factor will often be largely if not entirely one for the Tribunal to determine. But this is not so when answering Lord Bingham’s question (5). One of the items in the hypothetical scale – “legitimate immigration control” – is as a matter of law to be accorded a weight so great that the only correct  answer will be that Article 8 is not violated, whatever items are placed in the opposite scale, unless those items disclose a truly exceptional case or unless there is some truly exceptional reason why legitimate immigration control is itself not to be accorded its customary weight.

40.      As we have already seen, the adjudicator in the present case, for all that he referred to relevant case law, failed to identify any factors that could properly be said to be exceptional, in the sense required by Razgar and Huang. That is so, even if one assumes (which we do not) that the adjudicator properly found himself at question (5) at all.       

41.	None of this is in any way to be taken as meaning that the Tribunal thinks any less of the appellant than the Adjudicator did.  The appellant is plainly a most impressive individual who has overcome significant physical difficulties and who has diligently endeavoured to improve his position, as well as to help others.  The fact remains, however, that none of this entitles him to remain in the United Kingdom by reference to a Convention which, in the words of Lord Bingham, "is directed to the protection of fundamental human rights, not the conferment of individual advantages or benefits".  

42.	The Tribunal finds that there is a material error of law in the Adjudicator's determination.  

43.	The following decision is accordingly substituted:-

The appellant's appeal is dismissed on human rights grounds. 

P R Lane
Senior Immigration Judge

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