IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
[AIT No. HX/01468/2003]
B e f o r e :
LORD JUSTICE MOSES
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|SECRETARY OF STATE FOR THE HOME DEPARTMENT||DEFENDANT/RESPONDENT|
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MISS W OUTHWAITE (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
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"We depend on [Mr A] to make a considerable contribution to this work level and we are anxious to retain his employment with the NHS for the long-term future."
Another letter referred to the appellant being:
"One of only two Dari interpreters in the North-East region and is essential to our work here with asylum seekers and refugees."
Reference was made to the fact that the appellant related well to both professional users and service users.
"…in performing this work doing so to a high level of professional competence and I further find that his work is of considerable benefit to the (mostly) public authorities for whom he works."
At paragraph 18 the adjudicator said that he bore in mind:
"… as one of the relevant factors the public utility of this man's current work. I bear in mind the fact that he has been in this country for a substantial period of time".
"As a result of this he would return (if returned) to Afghanistan to a place where he has no home and no job and from which (except for a short interval between 1999 and 2000) he has been absent since he went to Azerbaijan in 1994. I bear in mind the current somewhat turbulent state of Afghanistan even in Kabul but also the need in Afghanistan for qualified Afghans to return and assist in the rebuilding of that country. I bear in mind the private life that he enjoys in the United Kingdom has been built up throughout a period during which he has known his residence in the United Kingdom has been precarious."
"… the need to balance immigration control against the need to assist the wider public interest would, after the balancing exercise has been completed, come down in favour of the wider public interest even if the decision involves some abnegation of the rules relating to immigration control".
That was put by way of summary of the appellant's case.
"It would, I think, not be helpful for me to rank the various factors that I have borne in mind in order of importance. I have, however, borne in mind the dictum of the Master of the Rolls in the case of Mahmood, set out in paragraph 55 of the judgment of the Court of Appeal. Doing the best I can to perform the balancing exercise and paying every regard to the importance of immigration control and the need to give deference to the decision of the Secretary of State taken in those matters reserved to him by Parliament, I have nevertheless come to the conclusion that in this particular case it would be disproportionate to remove this man to Afghanistan. It follows, therefore, that in my view the appeal should be allowed under Article 8 of the European Convention on Human Rights."
"The true position in our judgment is that the 1998 Act and section 65(1) 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."
"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.'"
"I wish only to add that I endorse his [Sedley LJ's] observations as to the need for rigour in identifying, with an appropriate degree of precision, which amongst the issues an applicant may seek to raise on an appeal are truly issues of law fit for consideration by an appellate tribunal. I share his concern that the terms in which permission to appeal to the IAT was given in the present case [have] failed to recognise that need."
In the leading judgment Sedley LJ stated at paragraph 18:
"In the present case the Home Office may perhaps count itself fortunate to have had some issues of law distilled out of, and in one respect added to, a shaky set of grounds in the way I have described. I do not consider that the Vice-President's distillation from them of an issue of law in relation to the identification of truly exceptional factors was beyond his remit."
Mr Stanage submits that the present case falls on the other side of the line.
"It is respectfully submitted that the adjudicator failed to properly and rigorously assess all relevant factors when assessing whether any breach of Article 8 was disproportionate to the maintenance of an effective immigration control."
Miss Outhwaite submits that, having regard to the test which should have been applied, the allegation of a failure properly and rigorously to assess all relevant factors is in substance a challenge to the test which the adjudicator applied.
"The adjudicator does not specifically identify the factors he sets out in paragraphs 13 and 18 of the determination as amounting to exceptional circumstances. However we note that he was addressed on that point and insofar as he was required to approach it on that basis we find that those factors he did identify plainly do not amount to exceptional circumstances. They certainly do not give rise to a disproportion so great that no reasonable Secretary of State could have removed the appellant."
"The fact that the claimant is providing a skill and resource which is in short supply cannot possibly in itself outweigh legitimate immigration control."
In setting out the work done by the appellant, the tribunal added:
"None of those factors could possibly outweigh the state's right to pursue legitimate immigration control."
"The same really applies to the Adjudicator's identification of the fact that the Claimant may have no family to return to in Afghanistan. The evidence before the first Adjudicator was that it was simply not known what had happened to the Claimant's family who may or may not be missing in Afghanistan. So it is by no means certain that he would be returning without family. He is in any event a single, able-bodied young male. The Adjudicator identified at the end of paragraph 18 that there are general difficulties in Afghanistan however impliedly made a reference to the fact that there are now considerable efforts under way to rebuild the infrastructure in Kabul. If the Adjudicator had gone on to consider the current situation in Kabul, which the first Adjudicator did, he should have reached the conclusion that there would be no insurmountable obstacles to the claimant rebuilding his life in Kabul, albeit he would not enjoy the same standard of life. The fact he would be returning to no home and no job (which in relation to the former is by no means certain) are not matters which should tip the balance in his favour on the private life argument. Similarly the fact that he has worked in the UK as a Dari interpreter and is providing a valuable public service whilst he has been awaiting the outcome of his various appeals is also not something which tips the balance in his favour."
"(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?"
Order: Appeal dismissed.