COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
VICE-PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
LORD JUSTICE LATHAM
LORD JUSTICE LLOYD
| ERNEST FESTUS BEOKU BETTS
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Miss Elisabeth Laing) (instructed by The Treasury Solicitor) for the Respondent
Hearing date : 22nd June 2005
Crown Copyright ©
Lord Justice Latham :
"Under Article 8 I have to determine the following separate questions:
1) Is there an interference with the right to respect for private life (which includes the right to physical and moral integrity) and family life?
2) Is that interference in accordance with the law.
3) Does that interference have legitimate aims?
4) Is the interference proportionate in a democratic society to the legitimate aim to be achieved?"
"I consider in the above circumstances that the return of the appellant to Sierra Leone would be disproportionate. I have taken into account the large volume of documentary supporting evidence supplied, the oral evidence of the appellant and his witnesses, and the submissions both are (sic) both representatives. I consider that there are exceptional circumstances applying in the light of the appellant's father's application, over thirty years ago, for citizenship, which application was not at the time acknowledged or dealt with. To summarise, having considered all of the available evidence, I am of the firm view that the appellant's return to Sierra Leone will be disproportionate and would breach Article 8."
"16. In considering whether it would be proportionate, therefore, we weigh on one side the fact that the respondent is 24 years of age, well educated and perfectly self-sufficient. We do not consider that there is any likelihood of an adverse psychological or psychiatric result following his return to Sierra Leone, for the reasons which we have indicated earlier in relation to the Article 3 claim. We have also taken into account the fact that the respondent comes from Freetown and that the family owned a property there. The evidence before the Adjudicator is that the property was vandalised during the coup but there is no evidence that the family has been deprived of the property. Furthermore it would appear that the respondent has fairly close family connections in Sierra Leone. He has two uncles there, the mother's brother and half brother (paragraph 74) and his late father was obviously a fairly substantial business man, and political ally, if not friend, of President Kabbah. In such circumstances we do not consider that the respondent would have too much difficulty in establishing himself in Sierra Leone. We accept that circumstances in the country are not as favourable as they were to this family prior to the coup but nonetheless we do not consider that in the circumstances of this case the respondent would come within the special circumstances applicable to unsuccessful Sierra Leonean citizen referred to by the UNHCR in their letter of the 12th June of this year.
17. On the other side, there is the fact that this is a close knit family, that there is a dependence by the mother upon the respondent, but in this connection we would point out that there are three other siblings in this country, two of them older than the respondent and one of 15. These siblings are equally able to provide support for the mother. What is perhaps even more important from the respondent's point of view is the interruption to his legal training, he having now reached what would appear to be almost the last stage in his journey to enrolment as a solicitor. This difficulty could be overcome by the respondent making an application from Sierra Leone to return to this country to complete his legal studies if he were minded so to so. He now has behind him the benefit of an English law degree, which, if he decided not to apply to complete his training here (or, in the alternative, was refused consent) would nevertheless be of assistance to him in a career in Sierra Leone.
18. In the case of Mahmood their Lordships emphasised the right of the Secretary of State to decide matters under Article 8 on the basis of the merits of each case. Laws LJ states at paragraph 53:
"Much of the challenge presented by the enactment of the Human Rights Act 1998 consists in the search for a principle to measure scrutiny which would be loyal unto the convention rights, but loyal also to the legitimate aims of democratic power. In this case Miss Webber's submission comes close to the proposition of the court not withstanding refusing the Secretary of State and retaking the decision of the case on its merits. In fairness, when testing, she disavows such a proposition. But in that case her submission is without principle: the courts are in as good a position as the Secretary of State to decide; but they must not decide as if they were his surrogate. This antithesis at the same time commends but deprecates the imposition of a courts of their own views of the merits of the case in hand. It is of no practical assistance and lacks respect for its adherence. The Human Rights Act 1998 does not authorise the judges to stand in the shoes and refuse Parliament's delegates, who are decision makers, given their responsibility by the democratic arm of the state. The arrogation of such power to the judges would usurp those functions of government which are controlled and distributed by powers with authority derived from the ballot box. It follows that there must be in principle distance between the court's adjudication in case such as this and the Secretary of States decision, based on his perception of the cases merits". (Syntax unamended)
19. The Secretary of State in paragraph 23 to 26 of the letter of refusal has dealt with any claim arising under the Human Rights Act, in particular Articles 2, 3, 6 and 8. The Master of the Rolls in paragraph 38 of his judgment states:
"The court does not substitute its own decision for that of the executive. It reviews the decision of the executive to see whether it was permitted by law – in this instance the Human Rights Act 1998. In performing this exercise the court has to bear in mind that just as individual states enjoy a marginal of appreciation which permits them to respond within the law, in a manner which is not uniform, so there will often be an area of discretion permitted to the executive for a country before a respondent to be demonstrated to infringe the European Convention." (Syntax again unamended)
20. In our view, for the reasons we have indicated above, the Secretary of State was perfectly entitled to come to the conclusions to which he has come, both in relation to Article 3 and Article 8."
"17. In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court, must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, these questions are likely to be:
(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?
20. The answering of question (5) where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. In Secretary of State for the Home Department –v- Kacaj in  Imm AR 213 para 25, the Immigration Appeal Tribunal (Collins J, Mr CMJ Ockelton and Mr J Freeman) observed that:
'Although the [Convention] rights might be engaged, legitimate immigration control would almost certainly mean that derogation of the rights must be proper and will not be disproportionate.'
In the present case, the Court of Appeal had no doubt (paragraph 26 of its judgment) that this over stated the position. I respectfully consider the element of over statement to be small. 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."
Lord Justice Lloyd: I agree.
Lord Justice Brooke: I also agree.