England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[2006] UKAIT 00085

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/12/2007

Lord Justice Sedley :

            Background

1. This is the Home Secretary's appeal, brought by leave of Moses LJ, against a decision of the AIT (Hodge P and SIJ Batiste) upholding the decision of an adjudicator given under the pre-April 2005 system in favour of Mr Navin Halai (there is no need for anonymity), who had appealed against the refusal of the Mumbai entry clearance officer to grant him entry clearance.
2. The appeal does not come before us in the best of circumstances. The application to this court for permission to appeal was out of time because the Home Office presenting officers' unit failed to pass the AIT decision on to the Treasury Solicitor, on whom the AIT had also failed to serve a copy of the determination. Moses LJ enlarged time and granted permission to appeal reluctantly "because it is likely that the conclusion in both cases can be justified"; but he considered that "the implications of the AIT's approach to the ages of the applicants may be of importance".
3. The present case was at that stage one of a pair of cases, unrelated save as to the issue they raised, which were proceeding in tandem until it was realised that an ECO had mistakenly given the other respondent, Mr Paresh Varsani, entry clearance because he or she was unaware of the Home Secretary's pending appeal to this court. It was fairly accepted, since Mr Varsani had now come and settled here on the faith of the stamp, that it would not be right to continue with the appeal in his case.
4. Our task – and I would think that of Moses LJ - has been made  no easier by the absence from the Home Secretary's appellant's notice of anything recognisable as grounds of appeal. Instead of one or more shortly stated propositions which it is intended to make good by argument, the notice of appeal has annexed to it a pair of documents, both settled by the same counsel. The first is captioned "Application for permission to appeal to the Court of Appeal out of time" and runs to 38 paragraphs on eight pages of single-spaced type. The second has the same caption followed by "Skeleton argument of the Secretary of State". It is largely identical to the first document but runs to a further eight paragraphs and three more pages. The prescribed form of appellant's notice, at section 6, says:

"Please state, in numbered paragraphs, on a separate sheet attached to this notice and entitled 'Grounds of Appeal' … why you are saying that the judge who made the order you are appealing was wrong."

It then asks the intending appellant to indicate whether "the arguments (known as a 'Skeleton Argument') in support of the 'Grounds of Appeal'" are attached or will follow. It is not too much to ask that counsel, like the rest of the world, should understand and follow these straightforward directions and that solicitors should not lodge documents that do not comply with them.

History

5. Mr Halai's application for entry clearance arose in unusual circumstances. The AIT recounted the formal history:

7. The Appellant's maternal grandfather was registered in Kenya as a British subject and a citizen of the United Kingdom and Colonies in 1957. The Appellant's mother, the sponsor, was born in Nairobi on 14^th October 1959 and was then a citizen of the United Kingdom and Colonies (CUKCs). The sponsor married the Appellant's father an Indian national in 1975. They have four sons. The oldest born in 1976 now lives in the Seychelles; the second son born in 1978 lives in Muscat; the third son born in 1980 lives in India. The Appellant, their fourth son, was born on 6^th May 1985.

8. On 27^th July 1998 the Appellant's mother obtained her British overseas citizen passport. In August 2003 the sponsor applied for a British passport. She was registered as a British citizen with full rights on 9^th September 2003. Her passport was available in October of that year. She returned to India to support the entry clearance application of the Appellant and her husband, his father. On 5^th May 2004, the Appellant and his father, together with the sponsor, were interviewed by the entry clearance officer in Mumbai. Entry clearance was refused for both the Appellant and his father.

9. On 17^th May 2004 the sponsor returned to the United Kingdom. A notice of appeal was filed for both the Appellant and his father on 27^th May 2004. The appeals were reviewed. The Appellant's father was granted a visa to settle in the United Kingdom as a dependent spouse of the Appellant's mother on 23^rd October 2004. The review of the Appellant's appeal changed nothing and his appeal was heard before an Adjudicator in December 2004.

6. Behind the personal history lies a fraught political history. It is set out, without dissent on the part of the Home Secretary, by the AIT:

13. Each of the sponsors claim to British nationality arose from the British Nationality Act 1948 which was effective from 1^st January 1950. They each, when born, became citizens of the United Kingdom and Colonies by birth (CUKCs). Their rights to settle in the UK were restricted by the Commonwealth Immigration Act 1968. The Immigration Act 1971 came into force on 1^st January 1973. It introduced the concept of a right of abode. On 14^th December 1973 the European Commission on Human Rights decided the East African Asians case. It decided that the Commonwealth Immigration Act 1968 was racially discriminatory. The UK Government entered into a friendly settlement. A Special Quota Voucher Scheme (SQV Scheme) was introduced to benefit citizens of the United Kingdom and Colonies whose rights had been restricted by the 1968 Act. But it could not assist either of the two sponsors since married women who were not heads of households were excluded from the Scheme.

14. The Special Quota Voucher Scheme had been introduced from 1968 to assist both CUKCs and subsequently British Overseas Citizens (BOCs). Each of the two sponsors had qualified as BOCs under the provisions of the British Nationality Act 1981. The SQV Scheme was outside the Immigration Rules. It allowed persons latterly BOCs who had no other citizenship and were under pressure to leave their country of residence and had nowhere else to go to settle in the UK. The numbers entitled to come to the UK were limited by quota rules. From 1975, 5,000 vouchers per year were issued. Waiting lists were always long. By 1987 those applying under the quota were expected to wait more than five years (Macdonald Immigration Law and Practice 1^st Edition 1983 pg.248 and 2^nd Edition 1987 pg.286).

15. Importantly the SQV Scheme was only available to heads of household and to their dependents. Such heads of household were defined for the purpose of the scheme as "men who have reached their 18^th birthday; women over 18 who [are] … single, widowed, divorced [or] married to a man who is incapable of fulfilling the role of head of household for medical reasons, e.g. severely physically or mentally handicapped. (This includes a woman whose marriage may have been not valid in English law but which exists in fact, and a woman who is living in a permanent association with a man)". The scheme was therefore applied in a manner which discriminated between men and women on the grounds of marital status. The scheme was abolished on 5^th March 2002. There were approximately 500 applications per year at that stage.

16. Section 12 of the Nationality, Immigration and Asylum Act 2002 amended sections 4 and 14 of the British Nationality Act 1981. The effect was to entitle certain British Overseas Citizens to be registered as British citizens from 30^th April 2003. This applied to those who hold no other nationality and who had not renounced any other nationality. The mothers of both the Appellants qualified for British citizenship for the first time as a result of this amendment. They were adversely affected by the "anomaly" referred to in the next paragraph.

17. The context of this legislative change is of importance in these cases. The then Home Secretary said in a parliamentary debate on the Nationality, Immigration and Asylum Bill in the House of Commons on 5^th November 2002 in relation to the changes made which subsequently enabled the mothers of the two Appellants to obtain British citizenship:

"We are talking here about righting an historical wrong, in terms of what happened back in the late 1960s and early 1980s in regard to British overseas citizens … [who] found themselves in an anomalous situation … I wish to put right that anomaly for British overseas citizens."

7. Mr Halai made his application for entry clearance in order to join his mother, who was now a British citizen settled in the UK, in reliance on paragraph 317 of the Immigration Rules:

"The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the … other dependent relative of a person present and settled in the United Kingdom are that the person:

(i) is related to a person present and settled in the United Kingdom in one of the following ways …

(f) the son… over the age of 18 living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; and

(ii) is joining… a person who is present and settled in the United Kingdom… and

(iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and

(iv) can, and will, be maintained adequately without recourse to public funds, in accommodation which the sponsor owns or occupies exclusively; and

(a) can, and will, be maintained adequately and without recourse to public funds and

(v) has no other close relatives in his own country to whom he could turn for financial support …."

8. Mr Halai also relied on art. 8 of the European Convention on Human Rights, which is one of the Convention rights scheduled to the Human Rights Act 1998 and which both the Home Secretary and the AIT are required to respect. It provides:

Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is 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.

The adjudicator's determination

9. The adjudicator concluded that, although Mr Halai met the other requirements of paragraph 317 of the Rules, it could not be said that he was living in "the most exceptional compassionate circumstances".

"In many ways", the adjudicator concluded, "this is an unfortunate result since by a change in immigration rules at a time when he could not take advantage of under-18 status, he has suddenly been deprived of his mother and father, who have expressed an intention to sell the accommodation in which he resides."

10. The adjudicator accordingly recommended sympathetic consideration outside the rules. But this became superfluous when he went on to hold that the refusal of entry was a denial of respect for Mr Halai's family life which was disproportionate and so unable to be justified under art. 8(2). These were his findings:

4.7 First, it is quite clear that there exists family life between the Appellant on the one hand and the sponsor and her family in the United Kingdom on the other.

4.8 Whether the refusal to grant entry clearance amounts to a breach of the Appellant's Article 8 rights depends on whether it would be reasonable for the sponsor and her husband to re-locate back to India. Had they been resident in the United Kingdom for a much longer period this no doubt would militate against it being reasonable to ask them to return, but to expect people to turn round so shortly after settling in this country is not an attractive proposition either. Furthermore the settlement of the Appellant's parents in this country was in the wake of several other family members' settlement, and to regard it as reasonable for them to return would be tantamount to saying that when 3 members of a family make an application for settlement and only 2 succeed the only way forward for the family to exercise their Article 8 rights is for the 2 successful applicants to give up the success they have had. I do not find it reasonable in those circumstances to require the Appellant's parents to turn around so quickly in order to preserve their family life.

4.9 The result of this finding is that I find that the refusal of the ECO is an interference with the Appellant's Article 8 rights. Whether that places the |State in breach of the obligations to show respect for family life depends on whether it is a proportionate response to the countervailing public interest in maintaining an effective immigration policy. In my view it is not. Although the Appellant is over the age of 18 he is not far beyond it. He is single, and not engaged. His relationship is not one deemed to be one of the less important one but the greatest. In all those circumstances I find that the refusal is a disproportionate response and accordingly I find that the refusal does place the State in breach of its positive obligations under Article 8.

The case before the AIT

11. The Home Secretary obtained permission to appeal to what was then, under the former two-tier system, the IAT. The single ground on which permission was granted was

"Whether, having regard to article 8 ECHR and the decision in Mahmood, the United Kingdom would breach its human rights obligations in returning him to India."

This formula mistook the situation to the extent that it suggested that what was in issue was return to India rather than entry clearance, but that does not matter. The reference to Mahmood is to the decision of this court [2001] 1 WLR 840 that in pre-Human Rights Act challenges to Home Office refusals of leave to remain the court was in general limited to a supervisory rather than an appellate role. Before us, however, Elisabeth Laing for the Home Secretary has relied on it for a different and narrower proposition.

12. By the time the appeal came on the new regime had come into operation, requiring the AIT to treat it as a reconsideration hearing. At that time, however, Rule 62(7) of the AIT (Procedure) Rules 2005 purported to forbid the canvassing of any ground which had not been the subject of the grant of permission. It has since been decided by this court in AM (Serbia) v Home Secretary [2007] EWCA Civ 16 that the restriction was ultra vires, and the Lord Chancellor has accordingly amended the rule to permit the AIT to modify the grounds on which the case is to be argued before them.
13. Ms Laing has accordingly sought to canvass a further ground which, she submits, the AIT would have allowed her to canvass had Rule 62(7) been in lawful form. Manjit Gill QC, for the respondent, has not objected and we have allowed her to do so. Her further ground relates to the issue of proportionality, which, although it may not have been visible on the face of the grant of permission, was at the centre of the decisions reached at both levels and clearly needed to be addressed. Indeed the AIT, while considering itself bound by Rule 62(7) in its original form, in my view correctly took the grant of permission to have included all issues arising under art. 8.

The AIT's role

14. The AIT concluded that the adjudicator had been entitled to allow the appeal under art.8 and that they would have done the same. Indeed their formal decision was to allow the appeal – necessarily meaning Mr Halai's appeal against the ECO's refusal of entry clearance. This raises an initial question for us: is it in the adjudicator's determination or in the AIT's or in both that the Home Secretary as appellant must locate an error of law?
15. It is not altogether clear what the AIT took their role to be. If they were conducting the first stage of a reconsideration under the new regime, the single issue before them was whether the adjudicator had made an error of law. If they found that he had not – and that is what they found – it was the end of the Home Secretary's appeal. But they also went on to evaluate the case for themselves and to reach, on clearer and stronger grounds, the same conclusion as the adjudicator. In the result they concluded (§31) that the adjudicator had been:

"… entitled to allow the appeal under article 8 ECHR and indeed we would have come to the same conclusion."

But their conclusion (§41, 43) that Mr Halai's appeal was allowed and that the ECO be directed to grant him entry clearance seems, with respect, inconsistent with simply upholding the adjudicator's determination as sound in law.

16. In the end, however, it does not matter. What the AIT has done is set out in compelling detail why it was right in fact as well as permissible in law for the adjudicator to decide in Mr Halai's favour. In the light of this counsel agree that we should treat the AIT's decision, as the AIT appear to have treated it, as a rolled-up determination both of the threshold question whether the adjudicator had made any error of law and, contingently, of the substantive question whether the appeal was well-founded.

The grounds

17. As developed, therefore, Ms Laing's grounds have been these:

(a) The adjudicator erred in finding that refusal of entry clearance would breach art. 8(1).

(b) Alternatively, in applying art. 8(2) the adjudicator made a legally inadequate assessment of proportionality.

(c) Had the AIT found these errors of law to have occurred, as they should have done, the determination which they would have substituted (and indeed purported to substitute) was vitiated by equivalent errors.

The AIT's determination

18. The section of the AIT's determination headed "Conclusion" deserves to be set out in full:

31. We do not consider on the evidence that either appellant could properly be said to be "living alone in the most exceptional compassionate circumstances". So we agree with the adjudicator in H and for the reasons given consider the judge in V was wrong so to decide. But we have further considered these cases both in the light of the individual circumstances of each appellant and having regard to the legislative background. We have concluded that in both cases the IJs were entitled to allow the appeal under Article 8 ECHR and indeed we would have come to the same conclusion. We are satisfied from the findings before the Adjudicator and the Immigration Judge that in each case the Appellant was wholly or mainly dependent on the sponsors; that each Appellant will be accommodated adequately without recourse to public funds in the UK; that each dependent can and will be maintained adequately without recourse to public funds and neither has close relatives in his own country to whom he could turn for financial support. In other words most of the requirements of Rule 317 are satisfied.

32. We note that each Appellant was only just over the age of 18 when the application for entry clearance was made. The opportunity to make an application prior to the 18^th birthday of each appellant was very limited. In each case the application was made with the Appellant's father so both the father and the son could join each Appellant's mother as sponsor. In each case there was and is a strong family life. Each mother had only recently obtained citizenship of the UK with the right to settle and each had only recently settled in the UK.

33. We are supported in our view that this case is exceptional in relation to the ages of the Appellants by two factors. First the SQV Scheme adopted an upper age of 25 rather than 18 for family reunion. Children up to the age of 25 so long as they were dependent, as the Appellants are, could be admitted as part of the family under the scheme even though they were over 18. This SQV Scheme policy was of course withdrawn well before the mothers in this case were able to secure their rights to enter the UK. But it informs our thinking when considering the application of article 8 in the particular circumstances of these cases and the Respondent's past policies in comparable situations. Further the September 1998 Home Office IDI deals with cases of re-applicants who can show in the light of DNA evidence that they have been previously wrongly refused. There an upper age of 25 was adopted rather than 18. This provides an example of how an apparent absolute cut-off age is not always mandatory where the Respondent accepts that an error of judgement or fact has been made.

34. Each of the Appellants' mothers had been a British overseas citizen since birth. As they were females and not head of a household they could never have applied to settle in the UK under the Special Quota Voucher Scheme. The foundation of any entitlement to come to the UK had been prevented by racially discriminatory earlier legislation. The SQVS which sought to deal with that position was itself discriminatory on gender grounds against the mother of each of the Appellants. There was an historic discrimination.

35. The first occasion from which either of the Appellants' mothers could acquire British citizenship, giving them the right to apply for their dependents to settle with them, was on and after 1^st April 2003 subsequent to the passing of Section 12 Nationality, Immigration and Asylum Act 2002. We accept the Appellants' arguments that part of the reason behind the passing of Section 12 of the Act was to "right an historical wrong".

36. These facts as taken together constitute in our judgement truly exceptional circumstances as required in Huang. The SQVS could not avail either mother. The previous legislation as a whole had been discriminatory in excluding those with the Appellants mothers' background from the possibility of citizenship of the UK.

37. In each case the fathers of the two Appellants were able to exercise their right to join their wives, the Appellants' sponsors, and settle in the UK. The Appellants, otherwise wholly dependent and still in education, would have had an absolute right to come to the UK had they been under 18 on the date of application. We regard this history and context as of the utmost relevance. We agree with the Appellants' representatives that the assessment of what is necessary in a democratic society in Article 8 terms should involve a consideration of all the circumstances including the previous history of any previous wrongful act and an understanding of how the convention rights have to be enforced. We accept the submission that "in Strasbourg cases the Courts have looked at the history of development of legislation in assessing what is the right thing to do in the modern context when acknowledgements of past wrongful treatment are made". We also agree that there is no question in this case of attempting to enforce rights retrospectively.

38. Further we are not here dealing with family relationships which have been created after entry. The relationship in both cases is of longstanding since the birth of each Appellant. If each Appellant had been under the age of 18 then each claim would have been allowed.

39. We accept that the time taken for each Appellant's mother to make application for registration as British citizens and to apply for their families to come to the UK was reasonable. Both Appellants were only just over the age of 18 and were fully dependent and living alone when the applications were made.

40. We accordingly regard these two cases as one among the very small number of cases which are truly exceptional. We consider that the decisions of the entry clearance officer in each case breached Article 8 ECHR. Both the Adjudicator in H and the immigration judge in V allowed the appeals under Article 8. The immigration judge in V need not have made that finding given her conclusion under Rule 317. But the findings she made under that Rule do contribute towards the conclusion that the Appellant V's case is truly exceptional. We accordingly conclude that decisions that the appeal in respect of human rights in each case should be allowed must stand. The decision that provisions of Rule 317 are met in the case of V was wrong and is quashed. For the avoidance of doubt we conclude for the reasons given

41. The appeal of H is allowed on Human Rights grounds.

42. The appeal of V is allowed on Human Rights grounds.

43. In the particular circumstances of these two cases we exercise the power given by Section 87 (1) Nationality, Immigration and Asylum Act 2002 and direct that entry clearance be granted for each of these Appellants.

Art. 8(1): family life

19. Ms Laing submits that the adjudicator erred in law in regarding art. 8(1) as engaged at all. But her principal point, that refusal of family reunion is unable in principle to constitute a breach of art. 8(1), is answered by the decision of the European Court of Human Rights in Sen v The Netherlands (2003) EHRR 81. The Dutch government had in fact conceded the existence of family life between a couple and their child who had never lived with both of them. But the court itself added:

"The Court reiterates in this regard that a child born of a marital union is ipso jure part of that relationship; hence from the moment of the child's birth and by the very fact of it, there exists between him and his parents a bond amounting to family life which subsequent events cannot break save in exceptional circumstances."

20. Next, and alternatively, Ms Laing submits that, in finding it "quite clear that there exists family life between the appellant on the one hand and the sponsor and her family in the United Kingdom on the other", cast his net impermissibly wide. There was simply no evidence that Mr Halai had ever had anything to do with his mother's relatives in this country.
21. This, while true, is not quite the point. The point is the one the adjudicator went on to make in §4.8 (see above): that an extended family, of which Mr Halai was a member, had been finally able to reassemble in this country, but that Mr Halai, now aged over 18, had found himself excluded from it. As Mr Gill puts it in his skeleton argument, families like this had been prevented for over 30 years from settling in the country of which some or all of their members once were, and are now again, citizens.
22. Ms Laing next relies on the decision of this court in Mahmood (ante) for the proposition that, at least if the content of Mr Halai's family life is reduced to his relationship with his mother, there was no insurmountable obstacle on the evidence before the adjudicator to its resumption in India, and therefore no interference with it by the refusal of leave to enter. The passage she relies on, which is in the judgment of Lord Phillips MR at §55(3), relates to the proportionality of interference under art. 8(2). But if one were to transpose it to the question which arises under art. 8(1) of interference with family life, it seems to me in the present context unarguable that keeping a son from joining his mother is any the less a want of respect for family life because the mother could instead join the son. In many cases it may well be relevant to show that, because there is no insurmountable obstacle to it, it is proportionate under art. 8(2) to expect the family member to go abroad in order to join or remain with the applicant. But the question has always to be answered in terms of art 8 and its jurisprudence (see Husna Begum v ECO, Dhaka [2001] INLR 115, §21, per Pill LJ), and that in my view is what was done here by the adjudicator in relation to a fact situation which displayed few of the features familiar in removal cases.
23. If I am wrong about this and the adjudicator's decision that there was an interference with family life sufficient to engage art. 8(1) does not stand up in law, then I am in no doubt that the AIT's decision does. It is to be found at §31-32 (see above), and, while brief, makes it clear that this was a dependent son who had been living with and accommodated by his parents until they moved to the UK – the mother by right - in the expectation, or at least the hope, that he would be allowed to join them.
24. I do not consider that more was required to engage art. 8(1). The appeal turns, therefore, on art. 8(2).

Proportionality and exceptionality

25. The adjudicator, sitting as he was in December 2004, had not become distracted by the search for exceptionality. His decision – see §4.9 set out under §10 above - was expressed entirely in terms of proportionality:
26. The subsequent path of deviation and return is well known. It is described in the decision of this court in AG (Eritrea)  [2007] EWCA Civ 801, §18-25. The upshot is that the sole crucial test under article 8(2) is proportionality. That it is likely only in exceptional cases to favour entrants to the United Kingdom is a consequence and not a condition of the test. The AIT, however, considering itself bound to look for some truly exceptional feature of the case justifying departure from the Immigration Rules, found a set of such features and spelt them out in cogent detail.

Proportionality: the adjudicator's decision

27. The first question is whether the adjudicator's determination on proportionality, which I have set out above in full, is legally adequate. Ms Laing submits that it does not meet the minimum standard set out by this court in AG (Eritrea), §34-37. This passage (which I will not set out in full) can be encapsulated in a case like the present one in the question whether, having regard to the need to balance the interests of the individual with those of society, the particular measure is a more drastic interference with the primary convention right than is necessary for the maintenance of lawful, fair and consistent immigration controls. It concludes (§37):

"What matters is not that courts and tribunals should adopt a set formula for determining proportionality, but that they should have proper and visible regard to relevant principles in making a structured decision case by case."

28. Since that decision was handed down, the House of Lords in AH (Sudan) [2007] UKHL 49 has stressed that appellate courts should not pick over AIT decisions in a microscopic search for error, and should be prepared to give immigration judges credit for knowing their job even if their written determinations are imperfectly expressed . This is no more than a paraphrase of a decision which, I respectfully think, is intended to lay down no new principle of law (cf, for example, Retarded Children's Aid Society v Day [1978] IRLR 128, §19, per Lord Russell) but to ensure that appellate practice is realistic and not zealous to find fault. Their Lordships do not say, and cannot be taken as meaning, that the standards of decision-making or the principles of judicial scrutiny which govern immigration and asylum adjudication differ from those governing other judicial tribunals, especially when for some asylum-seekers adjudication may literally be a matter of life and death. There is no principle that the worse the apparent error is, the less ready an appellate court should be to find that it has occurred.
29. In the light of these principles of law and of practice, I am disposed to accept Ms Laing's submission that the adjudicator's decision on proportionality does not pass muster. While it culminates in §4.9, that is not where the entirety of the reasoning is to be found: the two preceding paragraphs paint a fuller picture of the merits of the particular case. But, although the first paragraph of the determination does give a short legal account of the changes over time in mother's status, there is nothing in the determination as a whole which suggests that this was regarded by the adjudicator as a case involving more than a dependant son, now aged over 18, who was being prevented from joining his mother who had settled here in virtue of a recently granted right of abode. There would have to be an intelligible reason, and none is given, why this would not be a perfectly proportionate exercise of immigration controls.
30. It follows that the AIT ought to have found an error of law in this regard in the adjudicator's determination. They were therefore right to go on, as in the event they did, to consider for themselves the question of proportionality.

Proportionality: the AIT's decision

31. The AIT's decision on art 8(2) is altogether fuller and more cogent. As can be seen (§37) they had well in mind the formula contained in art. 8(2) itself. But their decision is couched, as most decisions were in the period between the judgment of this court and that of the House of Lords in Huang, in terms of exceptionality. Ms Laing does not contend that it must fall without more because the wrong test has been used. She is right, in my judgment, to adopt this approach.
32. In AG (Eritrea) this court, in the last part of §37, pointed out that, despite the corrected course now set by the House of Lords' decision in Huang, there would be many cases where a mistaken focus on exceptionality did not create a viable appeal because on no view could the facts have been held to make removal disproportionate. The present case, most unusually, presents the obverse situation: the focus on exceptionality, albeit mistaken, produced a finding in the intending entrant's favour. The question, accordingly, is whether a focus on proportionality could possibly have worked against him.
33. It is no doubt possible  to construct a situation in which this might happen, but there seems to me to be no way in which it could have done so, or could now do so, in the present case. What in the AIT's judgment made the case exceptional was a series of factors which in combination had the effect of making it, in their judgment, entirely wrong to prevent Mr Halai from joining his parents here. Everything apart from his age pointed, in their view, to its being an unacceptable use of otherwise proper immigration controls. Such a finding is, in all except its vocabulary, a finding that the exclusion of Mr Halai was disproportionate and therefore – in terms of art. 8(2) – unnecessary in a democratic society.
34. I return therefore to Ms Laing's case. It is that the AIT, in bringing into account the legal, political and moral history of the mother's, and hence her son's, relationship with the United Kingdom, took a legally irrelevant set of matters into account. Whatever the mother's status was at any moment in the past, it was the product of primary legislation on which neither the AIT nor any other tribunal of law is entitled to sit in judgment. None of the legislation or policy which has made amends has been retrospective. The mother's changing status is a neutral datum line upon which any form of adjudication or evaluation is impermissible. The effect of a decision such as the AIT's is, Ms Laing submits, simply to get round the immovable fact of legislation.
35. Within her larger critique of the AIT's determination, Ms Laing founds on one particular matter: its reference towards the end of §33 to the Home Office's 1998 policy of allowing DNA evidence to reverse its refusals of entry to applicants up to the age of 25. DNA, she says, does not have anything to do with this case. The AIT did not imagine it did. What they were noting was that, as was also shown by the initial SQV scheme, there is no legal magic in a cut-off age of 18. At the time of their decision Mr Halai was still only 21.
36. Mr Gill, in a substantial skeleton argument on which we have not needed to hear him in detail, sets out over several pages the political and legal history of the United Kingdom's treatment of the East African Asians, from their initial status as citizens of the United Kingdom and Colonies with a full right of abode, through the severance of the link in 1968, the subsequent quota scheme and the 1994 rule-change, to the final legislative restoration in 2002 of  something like their original status with corresponding rights. It would be wrong to make our own appraisal of this. That – provided it was legally relevant - was for the AIT, and they have done so.
37. In my judgment, while what was done at each stage was undoubtedly the product of primary legislation and of executive powers duly exercised, the historical and moral dimensions of the laws which took away and then, following some remedial acts of executive discretion, finally restored to Mr Halai's family a right of a most fundamental kind – the right to belong – were, exceptionally, perhaps even uniquely, a legitimate part of the picture which the AIT formed in deciding whether the exclusion of Mr Halai was consistent with art. 8(2). They were entitled to conclude that it was not, and in particular that, but for a historic injustice which was now acknowledged, the mother would have been able as of right to bring her youngest son here with her years ago.
38. This answers, in my judgment, the single element of the case which persuaded Moses LJ to grant the Home Secretary permission to appeal. For the rest, what in the AIT's view made Mr Halai's exclusion wholly exceptional ineluctably made it disproportionate. Proportionality, in the jurisprudence of the ECHR on art. 8(2), is the yardstick of what is necessary in a democratic society; and a democratic society is one which observes the rule of law, not merely of laws.

Conclusion

39. I would therefore dismiss this appeal.

Lord Justice Rimer:

40. I have had the advantage of reading in draft the judgments of Sedley and Pill L.JJ. I agree with both judgments and would also dismiss the appeal.

Lord Justice Pill:

41. I agree that the appeal should be dismissed and that the appellant should be granted entry clearance.
42. The appellant's maternal grandfather was registered in Kenya as a British subject and a citizen of the United Kingdom and Colonies. His mother, the sponsor, was born in Nairobi in October 1959 and was a citizen of the United Kingdom and Colonies. Until 1968, the sponsor would have had a full right of abode in the United Kingdom. She married the appellant's father, an Indian national, in 1975. They had four sons of whom the appellant, born on 6 May 1985, is the youngest.
43. The sponsor's right to settle in the United Kingdom was restricted by the Commonwealth Immigrants Act 1968. A Special Quota Voucher Scheme ("SQVS") was set up but the sponsor was not permitted to apply to settle in the United Kingdom because she was female and not head of a household. As the Tribunal put it, at paragraph 34:

"The foundation of any entitlement to come to the UK had been prevented by racially discriminatory earlier legislation. The SQVS which sought to deal with that position was itself discriminatory on gender grounds against the [sponsor]. There was an historic discrimination. Eventually, as from 1 April 2003, the sponsor became entitled to enter the United Kingdom and to apply for her dependents to settle with her. That was achieved by Section 12 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") a reason for which was to "right an historical wrong"."

44. That last expression is from the speech of the then Home Secretary in the House of Commons on 5 November 2002 when moving acceptance of a House of Lords amendment to the Bill which led to the 2002 Act. On another occasion, the Home Secretary, referring to British overseas citizens in the sponsor's position stated: "we have a moral obligation to them going back a long way and it is unfinished business".
45. The sponsor applied for a British passport and was registered as a British citizen with full rights on 9 September 2003. Having exercised her right to enter, she returned to India to support the entry clearance applications of her husband and the appellant. Her purpose was to restore family life and to do so in the United Kingdom. Her husband was granted a visa to settle in the United Kingdom as a dependent spouse in October 2004. Had the respondent still been under 18 years of age, he would have been entitled to enter under the Rules. He was refused entry as being outside the Rules, thereby defeating the sponsor's purpose. The appellant was not much over 18. He was fully dependent on the sponsor who could accommodate and maintain him adequately without recourse to public funds. Under the former SQVS, the upper age limit had been 25. He was living alone when the application was made.
46. The Tribunal found, and were entitled to find, that there "was and is a strong family life". That had existed in India. The relationship between sponsor and appellant was, of course, of long standing, having commenced at the appellant's birth. It was temporarily disrupted by the decision of the sponsor, when eventually allowed to do so, to exercise her right of abode in the United Kingdom. She acted promptly and made prompt attempts to restore family life in the United Kingdom. The refusal of entry clearance to the appellant defeated that aim. The Tribunal stated: "The foundation of any entitlement to come to the UK had been prevented by racially discriminatory earlier legislation" (paragraph 34).
47. Entry is sought under Article 8 of the Convention. I agree with the Tribunal that "the assessment of what is necessary in a democratic society in Article 8 terms should involve a consideration of all the circumstances including the previous history of any wrongful act and an understanding of how the Convention rights have to be enforced" (paragraph 37). I also agree with their statement: "We regard this history and context as of the utmost relevance" (paragraph 37).
48. I do not accept the submission of Miss Laing, on behalf of the appellant, that the possibility of the sponsor returning to India to join her son there is in the circumstances a crucial factor in determining the United Kingdom's obligations under Article 8. The sponsor had only recently exercised the right, which she should have enjoyed years earlier, to enter the United Kingdom. Nor do I accept Miss Laing's submission that the decision to limit the relevant right of entry to children under 18 prevents the Tribunal from making its own Article 8 assessment on the facts of the particular case.
49. In the circumstances, the Tribunal was entitled to hold that the appellant's right to respect for his family life under Article 8 of the Convention had been breached. They were entitled to hold that the refusal of entry clearance was disproportionate and involved a breach of the United Kingdom's obligations under the Convention.