COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Immigration Appeal Tribunal
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE CARNWATH
| AHMED SAEED AHMED MUKARKAR
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPT
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Mr. P. Patel (instructed by Treasury Solicitor) for the Respondent
Crown Copyright ©
Lord Justice Carnwath :
"This involved daily care because (he) could not look after himself. He had to be fed, clothed, escorted upstairs and downstairs and people had to check on (him) when he woke up… He (Khalid) had to share this responsibility because it was too much for one person. He really needed 24 hour supervision …" (para 22)
Khalid said that he could not accompany his father to the Yemen to apply for entry clearance, because he would lose his job; none of his siblings could accompany him because they all had their own responsibilities; there was no one in the Yemen who could look after him.
"to run the risk of losing their jobs merely to accompany him back to the Yemen to stay for an indeterminate period of time whilst the application is being considered or whilst he is waiting for an Appeal to be heard" (paras 39-40).
"The Article 3 threshold is high but, in practice, if no one can realistically return to the Yemen with the Appellant, or if there is no one there to look after him and ensure that he takes his medication and is there to dress, feed and attend to the appellant's toiletry needs, then this does, in my opinion, amount to inhuman and/or degrading treatment as the Appellant's medical condition will deteriorate significantly through neglect as much as anything else." (para 41)
"There is no dispute that family life exists, that the Secretary of State's decision violates it or that it is done so for an acceptable reason, namely the maintenance of good immigration control. What is in issue is the question of proportionality.
I have to ask myself whether any reasonable Home Secretary would expect the appellant to return to the Yemen by himself with his current ailments in circumstances where it is unreasonable to expect members of his family to, for instance, lose their jobs to accompany him or where there is no evidence that either the state or other members of his family are willing and able to look after him whilst his application is considered. I accept that the appellant gained entry to the United Kingdom by deception but it does not follow that he established family life here whilst here unlawfully – it was already established before he arrived and existed already before he became an overstayer. Furthermore, the reason for him remaining is due to his demonstrably worsening medical condition, some of which the Secretary of State was aware of. The position now is that he has demonstrably deteriorated since the Secretary of State considered this matter over two years ago. We have to deal with the situation as it pertains now and in the circumstances, given that I consider that there are insurmountable obstacles to the appellant returning to the Yemen to apply for entry clearance there, I consider that the appellant's current situation is such that no reasonable Home Secretary would find it proportionate to expect him to so return. I emphasise that I reach this decision because of the significant deterioration in the Appellant's health whilst he has been here. If the Appellant has indulged in a bit of queue jumping it is at a significant price due to the deterioration in his health. Consequently, I do not believe that allowing the appellant to remain here would send the wrong sort of message." (para 42)
A straightforward case?
Subsequent procedural history
"…in our view the interests of justice do require that the appellant has the opportunity of making further representations on the merits and the Respondent or responding to them in the light of the recent case law".
The case was accordingly transferred for a new hearing on the merits (see practice direction para 14.2).
"(1) Take into account the facts as determined by Mr Ince, those facts not being challenged on the Grounds of Appeal. (2) That I should hear up to date evidence as to the appellant's circumstances since the hearing before Mr Ince on 9th July, 2004. (3) Further that I should hear argument in relation to present case law including that identified by Mr Latter"
"…bearing in mind the age of the appellant and the possibilities of success of an application in 16 months time to return to the United Kingdom, coupled with the fact the appellant is still receiving treatment in the United Kingdom, indeed the appellant now awaits a brain scan, this may well be a case where the respondent will wish to reconsider his decision to remove the appellant on a discretionary basis. I have been constrained to decide this matter based on my understanding of the current law and the hurdles set both by N and Huang"
The reference to 16 months was a reference to the time which then remained from his decision (September 2005) until the appellant's 65th birthday, when an application for leave to enter under rule 317 would be likely to succeed. That time has now reduced to less than nine months.
i) Failing to apply the test set out in N v SSHD  UKHL 31 to the claim under Article 3 ("the Article 3 issue").
ii) Failing to consider the relevance of the fact that it was doubtful whether the appellant fulfilled the requirements of rule 317, taking into account the case of Ekinci v SSHD  EWCA 765 ("the Ekinci issue").
iii) Failing to apply the correct test in respect of proportionality, as set out in Huang  EWCA Civ 105 ("the Huang issue")
iv) The Adjudicator erred in law when transferring the burden of proof to the Secretary of State in relation to the availability of care in the Yemen.
v) He erred in law in concluding that the appellant would be unable to fund private care in the Yemen.
vi) He erred in law in concluding that the appellant's ability to fund private care in the Yemen was relevant to the issue of proportionality.
vii) He failed to take proper account of the appellant's "queue jumping".
Mr Patel does not now advance (iii) as a separate ground, recognising that Huang gives the tribunal more latitude on issues of proportionality than as understood under previous IAT case-law. He relies on Huang only as supporting his case (under (vii)) that the Adjudicator has failed to identify any "truly exceptional" circumstances for allowing the appellant to stay ahead of the queue which he has jumped.
The Article 3 issue
"… it would need to be shown that the applicant's medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying." (para 50)
Happily the appellant's condition has not reached that stage. If and when his condition becomes life-threatening, there is no basis for thinking that the Yemeni authorities, still less his family, would leave him unsupported.
The Ekinci Issue
Availability of Public or Private Care
"If the Appellant has indulged in a bit of queue jumping it is at a significant price due to the deterioration in his health. Consequently I do not believe that allowing the Appellant to remain here would send the wrong sort of message."
It is said that this is illogical because the deterioration in the appellant's health has nothing to do with his presence in the UK or his queue jumping. More fundamentally, it is said that the Adjudicator failed to identify any circumstances sufficiently exceptional to justify this particular appellant "jumping the queue", contrary to the principles stated in the cases (notably Mahmood  1 WLR 840, para 23).
Lord Justice Sedley:
Lord Justice Auld:
"The A.I.T. shall, after commencement, subject to [procedure rules] deal with the appeal in the same manner as if it had originally decided the appeal and it was reconsidering its decision".
"(1) A party to an appeal … may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on appeal.
(2) The appropriate court may make an order under subsection (1) –
(a) only if it thinks that the Tribunal may have made an error of law, and
(b) only once in relation to an appeal".
"Where the reconsideration is pursuant to an order under Section 103A –
(a) the Tribunal carrying out the reconsideration must first decide whether the original Tribunal made a material error of law, and
(b) if it decides that the original Tribunal did not make a material error of law, the Tribunal must order that the original determination of the appeal should stand".
A material error of law is defined in paragraph (5) to mean an error of law which affected the Tribunal's decision upon the appeal.
"14.1. Subject to paragraph 14.12, where an appeal has been ordered under section 103A to be reconsidered, then, unless and to the extent that they are directed otherwise, the parties to the appeal should assume that the issues to be considered at the hearing fixed for the reconsideration will be whether the original Tribunal made a material error of law (see rule 31(2)) and, if so, whether, on the basis of the original Tribunal's findings of fact, the appeal should be allowed or dismissed.
14.2. Where the Tribunal decides that the original Tribunal made a material error of law but that the Tribunal cannot proceed under rule 31(3) to substitute a fresh decision to allow or dismiss the appeal because findings of fact are needed which the Tribunal is not in a position to make, the Tribunal will make arrangements for the adjournment of the hearing or for the transfer of the proceedings under paragraph 12.3 so as to enable evidence to be adduced for that purpose.
14.3. Where the Tribunal acting under paragraph 14.2 adjourns the hearing, its determination, produced after the adjourned hearing has taken place, will contain the Tribunal's reasons for finding that the original Tribunal made a material error of law.
14.4. Where the Tribunal acting under paragraph 14.2 transfers the proceedings, it shall prepare written reasons for its finding that the original Tribunal made a material error of law and those written reasons shall be attached to, and form part of, the determination of the Tribunal which substitutes a fresh decision to allow or dismiss the appeal."