VW and MO (Article 8-insurmountable obstacles) Uganda  UKAIT 00021
Date of hearing: 15 January 2008
Date Determination notified: 14 March 2008
|VW and MO
|Secretary of State for the Home Department||RESPONDENT|
(i) The case of Huang (HL) has not affected the need for a structured approach to Article 8. Subject to the need to avoid applying too high a threshold to the issue of interference, and not applying a legal test of "truly exceptional", the five-stage approach set out in Razgar (HL) remains correct.
(ii) The test or criterion of "insurmountable obstacles" remains part of UK and Strasbourg jurisprudence on Article 8. The fact that both UK and Strasbourg decisions sometimes formulate this test in terms of "reasonableness" or "seriousness" shows that it is not a test subject to strict definition. Whichever of these formulations is used, however, an applicant must show more than a degree of hardship.
(iii) If there are no insurmountable obstacles or serious difficulties in the way of family members accompanying an applicant abroad, special reasons need to be shown for why an adverse decision is not to be considered proportionate.
"It follows, in our judgement, that while an interference with private or family life must be real if it is to engage art 8(1), the threshold of engagement (the "minimum level") is not a specifically high one."
"…I agree nevertheless with Auld LJ that the essential change in our approach following Huang will be that rather than take the threshold of entry into Article 8(1) to be some exceptionally grave interference with private or family life, tribunals and courts will take the language of the article at face value and wherever an interference of the kind the article envisages is established, consider whether it is justified under Article 8(2)."
"The fifth and final question is whether the proposed interference by the respondent is proportionate to the legitimate aims of the respondent. I take into account my findings under the Refugee Convention and Articles 2 and 3 of the Human Rights Convention; the length of time the appellant has been in this country and the length of her partnership with Mr A; the age of the second appellant, M; the medical history of the appellant and her miscarriage; the reports prepared by Dr Warren and Ms Finlayson; the delay there has been in the respondent reaching his decision on the appellant's application; my finding that I do not find it proved that there are insurmountable obstacles to the whole family living together in Uganda; my finding that it would be open to the appellant to make an application for entry clearance to enter the United Kingdom from Uganda; my finding that the appellant's partner was aware of her uncertain immigration status during the relationship; and the submissions made to me. I note the House of Lords judgement in Huang  UKHL 11 and that where the issue of proportionality is reached, the ultimate question is whether the refusal of leave of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, prejudices the family life of the appellant in a manner sufficiently serious to amount to a breach of the fundamental rights protected by Article 8. I find that any removal of the appellants to Uganda would be proportionate and would be lawful. I find that there are no substantial grounds for believing that these appellants' rights and those of the appellant's partner, under Article 8 of the Human Rights Convention would be violated on any removal of the appellants to Uganda."
The "insurmountable obstacles" issue
"I note the House of Lords judgment in Huang and that where the issue of proportionality is reached, the ultimate question is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, prejudices the family life of the appellant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. In this present case, I have found it not to be proved that the life of the family could not reasonably be expected to be enjoyed in Uganda. Even so, I do not find it proved that the respondent's decisions do prejudice the family life of the appellants in a manner sufficiently serious to amount to a breach of the fundamental rights protected by Article 8. I find that any removal of the appellants to Uganda would be proportionate and would be lawful."
UK case law on the "insurmountable obstacles" test
" the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled" (para 57)
"…Article 8 does not entail a general obligation for a State to respect immigrants' choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State's obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion. Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would be precarious from the outset. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (see Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 39, ECHR 2006 ...,BAILII:  ECHR 86, with further references)." (emphasis added)
"Faced with these conflicting elements in the case law, national courts are justified in giving pre-eminence to the decision of the Grand Chamber in Bankovic v Belgium (2001) 11 BHRC 435…"
"55. 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 member 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 interests 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."
"The Court reaffirms at the outset that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 67, Boujlifa v. France, judgment of 21 October 1997, Reports of Judgments and Decisions 1997 VI, p. 2264, § 42). The Convention does not guarantee the right of an alien to enter or to reside in a particular country. "
"Not least, the Court will also consider the seriousness of the difficulties which the other family members would be likely to encounter in the applicant's country of origin, although the mere fact that a person might face certain difficulties in accompanying her or his family member cannot in itself preclude expulsion (Boultif, § 50)."
"(3) …provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family."
the next paragraph (still dealing with the same issue but in the context of long-established family members) uses the terminology of "reasonableness":
"(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. "
" In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide." (emphasis added)
"With regard to the question of whether the applicant's family could reasonably be expected to follow the applicant to Turkey…"
-an "insurmountable obstacles" wording: "…whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them" (see e.g. Da Silva and Hoogkamer, para 39; Headley v UK App no. 39642/03 1 March 2005; Konstatinov, paras 48,52);
-a "reasonableness" wording: "…the question of whether the applicant's family could reasonably be expected to follow the applicant to …"(see e.g. Keles, para 63; Uner, para 64); and
- a "seriousness" wording: " the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled." (see e.g. Boultif, para 48 ,Uner, para 57, Keles, para 57).
"……I find the obstacles put forward by the appellant's partner to be largely unresearched. He says he fears there the health, culture, health and safety, the disease, and the people the appellant mixed with there. Some of his knowledge of East Africa is simply based upon what he has heard in a pub in Edmonton. He is unemployed and there is no medical evidence before me as to why he could not live and be employed in Uganda. I have not found it proved that it would be unsafe for the appellant in Uganda. I do not find it proved that there are indeed insurmountable obstacles to the family, being the appellant, her daughter and her partner, living together in Uganda, even though this would indeed involve a degree of hardship for some or all members of the family".
"[a]nother important consideration" when deciding to what extent removal will disrupt family life is "…whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of the family life within the host state would from the outset be precarious. The Court has previously held that where this is the case it is likely only in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (Mitchell v the United Kingdom (dec.) no, 40447/98, 24 Nov 1998 and Ajayi and Others v The United Kingdom (dec.) no. 27663/95, 22 June 1999).
"…lawful residence in the Netherlands would have been possible on the basis of the fact that the first applicant and Mr Hoogkamer had a lasting relationship between June 1994 and January 1997 (see paragraph 34). Although there is no doubt that a serious reproach may be made of the first applicant's cavalier attitude to Dutch immigration rules, this case falls to be distinguished from others in which the Court considered that the persons concerned could not at any time reasonably expect to be able to continue family life in the host country (see, for example, Solomon v. the Netherlands, cited above)."
"failure to bring into the assessment of the proportionality of removing the appellant the fact that the executive as a matter of policy does not regard an overstayer who is now in a qualifying marriage as ordinarily liable to removal if the settled spouse cannot reasonably be expected to go to…"
Insurmountable obstacles in the context of a step-by-step approach to Article 8
"In reading the case law here, it is, in our view, important to recognise that the discussion of where the 'family' can reasonably be expected to reside is conducted in relation to whether or not there has been an interference with Article 8(1) rights. It is only if such interference is established that the Court or Tribunal needs to move on to the question of justification under Article 8(2)."
"11. However, it does not follow that the assessment of family life which has to be made is one which freezes the situation in the present, without regard to the past and probable future. The preliminary question of whether or not there is a family or private life (or both) is plainly a different question from those raised in Lord Bingham's five questions: one obvious difference is that its analysis does not involve any balancing exercise. However, at all stages of the Article 8 assessment – when deciding whether there is an existing private or family life, when deciding whether any existing private or family life is the subject of an interference having grave consequences (Lord Bingham's question 2) and when deciding whether any such interference is proportionate to the legitimate public end sought to be achieved (Lord Bingham's question 5) – the approach followed by the Strasbourg Court is to take account of a wide range of circumstances, including the applicant's previous personal and family circumstances and the likely developments they will undergo in the future: Marckx v Belgium, Berrehab v Netherlands (1988) 11 EHRR 322, Keegan v Ireland (1994) 18 EHRR 342. That too must be our approach"
"The Court has previously held that domestic measures which prevent family members from living together constitute an interference with the right protected by Article 8 of the Convention and that to split up a family is an interference of a very serious order (see Mehemi v. France (no. 2), no. 53470/99, § 45, ECHR 2003-IV)."
(Dr H H Storey)