COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LADY JUSTICE ARDEN
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Lord Justice Sedley :
a) that the adjudicator had failed to explain or justify her conclusion;
b) that removal would not be disproportionate;
c) that the finding that removal would result in permanent separation was speculative;
d) that it was pure speculation that the appellant would harm herself if removed.
"The article 8 claim does not come within the terms of the Immigration Rules and the correct test therefore is whether it is 'truly exceptional' as described by the Court of Appeal in Huang  EWCA Civ 105, which reflects the earlier guidance of the House of Lords in Razgar. The adjudicator appears to have erred in law in not identifying any truly exceptional factors and also appears wrongly to have prejudged the outcome of an application under the Immigration Rules from Serbia.
"The grounds of appeal raise issues which if sustained before the tribunal could amount to a material error of law by the adjudicator."
The question of prejudgment had not in fact featured in the Home Secretary's grounds. For the rest, the final paragraph of the grant of permission appears to open up every ground capable of being extracted from the Home Secretary's application. This is not, with respect, an ideal way of ensuring that only viable questions of law go to the AIT.
Did the grounds of appeal to the AIT raise a question of law?
Were the AIT's reasons for allowing the appeal reasons of law?
25. We have carefully considered the submissions of both parties' representatives and we find that the adjudicator's assessment of Article 8 reveals material errors of law, which render unsustainable her conclusions in respect of that aspect of the appeal before her. Our reasons for so finding are as follows.
26. In paragraph 58 of her determination, the Adjudicator found that the appellant and Ms Lamaj could not live with each other in Serbia or Kosovo. There was no evidence before the Adjudicator upon which such a conclusion could reasonably have been based and we find that such conclusion was entirely speculative. In the absence of evidence to indicate that the appellant could not live with Ms Lamaj in Serbia or Kosovo, we find that the Adjudicator's conclusion in that regard is unsustainable and amounts to a material error of law.
27. We find that the Adjudicator erred, in paragraph 59 of her determination, in apparently concluding that Ms Lamaj could not leave the United Kingdom until all of her appeal rights had been exhausted. The Adjudicator has clearly placed great emphasis upon this issue. Whilst it is doubtless correct that Ms Lamaj cannot be removed, until such time as her appeal rights might be exhausted, the Adjudicator's conclusion, arising from this scenario, fails to take into account the possibility that Ms Lamaj might choose to leave the United Kingdom with the appellant. We find that the Adjudicator's failure to take this issue into account also amounts to a material error of law. Based upon the evidence which was available to the Adjudicator, we find that the Adjudicator erred in apparently concluding, although without specifically stating so, that there was an insurmountable obstacle to family life being continued elsewhere other than in the United Kingdom.
28. We find that the Adjudicator also erred in apparently concluding that there would be a real risk of serious self-harm by the appellant, in the event of her removal, and separation from Ms Lamaj. The evidence of Dr. Barrett was, we consider, equivocal. He found that the appellant was suffering from a moderate depressive episode, that she had "ideas or acts of self-harm or suicide", which were "not established" and that he would "not be at all surprised to see her commit an act of deliberate self-harm were this to occur (namely, their separation our words)". Dr Barrett has not stated that the appellant would be a real risk of suicide or serious self-harm and we find that the medical evidence available to the Adjudicator, viewing Dr Barrett's conclusions as a whole, was insufficient for her to conclude that this aspect of the evidence, either viewed alone or cumulatively, might establish that the appellant's removal would be disproportionate, with reference to the requirement, as now embodied in the recent Court of appeal judgment in Huang  EWCA Civ 105, for an appellant's circumstances to be truly exceptional.
29. Regarding the issue of entry clearance, it is not for this Panel, or for an Immigration Judge, to prejudge the likelihood of success of an application under a relevant Immigration Rule. Nevertheless, we find that the appellant might, at least potentially, be able to apply for entry clearance under paragraph 295 of HC395.
30. With reference to the issue of exceptionality, whilst the Adjudicator made a reference, as indicated, to the IAT's starred determination in DM (Croatia), which was the appropriate case to have referred to at that stage, she failed to record that that determination indicated that an individual's particular circumstances had to be truly exceptional in order for that individual's removal to be considered disproportionate. The current relevant case law is, of course, now the Court of Appeal's judgment in Huang. The Adjudicator has failed to identify why the appellant's circumstances are "truly exceptional". We note that the Adjudicator referred to the appellant as being extremely vulnerable, referred to the available medical evidence as a clearly relevant factor in assessing proportionality and also referred to the appellant's circumstances being highly unusual, but without indicating why they were highly unusual. The only reference by the Adjudicator to "exceptionality" is to her finding that the relationship between the appellant and Ms Lamaj was "exceptionally close". We consider that the relationship between many married couples might doubtless be described as exceptionally close but this does not mean that there are truly exceptional circumstances applicable, which render removal disproportionate. We find that the Adjudicator has not identified, or referred to, any factors which might reasonably have caused her to conclude that the appellant's circumstances were truly exceptional. By exceptional, we mean with reference to a host of other appellants' circumstances, each of which is deserving of significant sympathy.
" for the reasons given [viz in the preceding paragraphs], we find that the appellant's removal would not interfere with her family life and that, even if we are wrong in this, her removal would not be disproportionate, when set against the importance of maintaining an effective immigration policy."
It is now conceded that, contrary to the AIT's finding, there was evidence that neither woman would be able to live with the other either in Serbia or in Kosovo. Indeed Mr Husain points out that there was uncontroverted evidence in the report of Mr Standish, whose expertise and reliability the adjudicator accepted but whom the AIT fail to mention, that neither state would permit a national of the other to settle there.
Contrary to what the AIT record, the adjudicator neither concluded nor appeared to conclude that Ms Lamaj could not leave this country until all her appeal rights had been exhausted. The adjudicator (in her §59) had noted, in general correctly, that Ms Lamaj could not be removed until her appeal rights had been exhausted. But the AIT, while themselves noting this fact, went on to criticise the adjudicator for overlooking the fact that Ms Lamaj was still free to leave voluntarily, holding this oversight to be a material error of law.
The adjudicator had found (§60) that any attempt to re-enter the United Kingdom from Serbia to rejoin Ms Lamaj "would be fraught with difficulty based on her reluctance to describe the nature of the relationship and its most unusual characteristics as described by Dr Barrett". This of course would arise only if the appellant were removed but Ms Lamaj and the child allowed to remain. The personal difficulty it would entail was something the adjudicator was entitled to evaluate as she did. It did not involve prejudgment any more than did the AIT's view which was actually not in conflict with the adjudicator's that "the appellant might, at least potentially, be able to apply for entry clearance". Even assuming (what again I doubt) that it lay within the grounds of appeal, no conceivable error of law arose under this head.
It is apparent from the AIT's own citations that the adjudicator did have before her evidence capable of sustaining a finding (§62) that there was a real risk that separation would drive the appellant to self-harm. It was as part of the diagnosis that suicidal ideation was "not established", because the couple were still together. But the prognosis should they be separated (also cited by the AIT) was clear and, as the adjudicator found, alarming. Her conclusion, as can be seen, was actually more cautious than the AIT suggest:
62. I accept Dr Barrett's evidence which was not disputed at the hearing before me that she is suffering from a moderate depressive episode. He describes the treatment which would be appropriate and by reference to the CIPU (S5.50) I note that "treatment for mental health disorders is available, though number of psychiatric staff and bed spaces are limited". However of more concern to me is Dr Barrett's prognosis which states "the most critical thing affecting Ms Krasniqi's prognosis is what happens to her relationship with Ms Lamaj. If they are separate I would confidently predict disaster for both, so symbiotic is their relationship. This would dramatically worsen the outlook for the prospective child too. I would not be at all surprised to see either commit an act of deliberate self-harm were this to occur." This is an alarming prognosis. I am satisfied by the evidence before me that the Appellant and Ms Lamaj are highly dependent upon each other. This has to be seen in the context of the shame which both women feel about having been raped and how as such they are both condemned in the eyes of their own cultures. I accept this evidence I believe the Appellant when she tells me that after having been raped her husband seriously assaulted her "for having Serbian blood in me". Ms Lamaj in her evidence told me that she would have been expected to kill herself as a result of the rape because of the shame which it would have brought on the family. I am therefore satisfied that if separated from each other neither woman would see any real hope for the future I find that this would be particularly so in the Appellant's case because she would also be separated from the child who she has come to regard as hers together with Ms Lamaj.
This question, which was plainly before the AIT, is in principle one of fact. But it is a question of secondary fact dictated by law and therefore, I would accept, susceptible to closer scrutiny than findings of primary fact. In the field of human rights law it is an aspect of the legal concept of proportionality, itself an artefact of the ECtHR's jurisprudence on what is "necessary in a democratic society" within the meaning of articles 8(2) to 11(2). As explained by this court in Huang (ante), while the appraisal of proportionality is procedurally a matter for the immigration judge, substantively it must start from the position that the maintenance of lawful immigration control is ordinarily sufficient to make removal proportionate. From this it follows that there must be something truly exceptional to make an otherwise lawful removal disproportionate: it is now axiomatic that article 8 will be engaged only in a small minority of exceptional cases, disclosing "the most compelling humanitarian considerations".
Lady Justice Arden:
a. The essential object of article 8 is to protect individuals against arbitrary conduct. A person has a Convention right that the government should respect his or her private or family life.
b. In immigration matters the state has a right to control the entry of non-nationals into its territory. Thus:
i. The exclusion of a person from the United Kingdom does not generally raise issues under article 8;
ii. There is no obligation on the state to accept the choice made by a person ("A"), who has not been admitted to live in the United Kingdom, of the place where he or she would like to have a private or family life with another person ("B") who has similarly not been admitted to live in the United Kingdom ( see Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHHR 471, cited in Huang v Home Secretary  QB 1, para. 48).
c. It is only in a truly exceptional case that an unlawful immigrant can successfully oppose his removal by reliance on article 8 (see R(Razgar) v Home Secretary  2 AC 368, para. 20 per Lord Bingham, and Huang, para. 60.)
d. If A claims a right to remain in the United Kingdom in reliance on article 8 and his right to respect for his or her family life with B, it is a relevant consideration that they formed their relationship at a time when their status was precarious: see Abdulaziz, Cabales and Balkandali v United Kingdom, para. 68. If A cannot be removed because of article 8, he or she would be in a better position than a person who applies to be admitted to live in the United Kingdom from abroad through the normal channels.
e. To establish a valid claim that his or her rights under article 8 would be violated by removal, A has to show that they are prevented from establishing a family life in his or her own country or that of B or that there is some special reason he or she could not be expected to live with B in his or her own country or that of B: see generally Abdulaziz, Cabales and Balkandali v United Kingdom.
Lord Justice Chadwick:
Note 5 By virtue of s.103A(1) inserted into the 2002 Act by the Asylum and Immigration (Treatment of Claimants etc) Act 2004, s26, and regulations made thereunder, the grant of permission to appeal to the IAT took effect as an order for reconsideration by the AIT. [Back] Note 6 Nationality, Immigration and Asylum Act 2002, s.101(1). Rule 31(2)(b) of the 2005 Procedure Rules provides accordingly: If it decides that [the adjudicator] did not make a material error of law, the Tribunal must order that the original determination of the appeal shall stand. [Back]
Note 5 By virtue of s.103A(1) inserted into the 2002 Act by the Asylum and Immigration (Treatment of Claimants etc) Act 2004, s26, and regulations made thereunder, the grant of permission to appeal to the IAT took effect as an order for reconsideration by the AIT. [Back]
Note 6 Nationality, Immigration and Asylum Act 2002, s.101(1). Rule 31(2)(b) of the 2005 Procedure Rules provides accordingly: If it decides that [the adjudicator] did not make a material error of law, the Tribunal must order that the original determination of the appeal shall stand. [Back]