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
[AIT No: IM017252006]

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th December 2007

Lord Justice Keene:

1. This is a renewed application for permission to appeal and for an extension of time, those applications having been refused on the papers by Richards LJ. The applicant seeks to appeal from a decision of the Asylum and Immigration Tribunal, the AIT, by way of reconsideration dated 25 April 2007.
2. The applications were lodged well out of time, but the delay seems to have been largely the result of the processes of getting legal aid funding, and so I would be prepared to grant the necessary extension of time. I deal with the substantive merits of the case in consequence.
3. The applicant is a female citizen of Jamaica. She arrived in this country as a visitor in March 1999 and was given leave to enter for six months. Though she sought further leave to remain, as a student, that was dismissed and she simply overstayed. Notice of her liability to removal was served, dated 1 December 2001. On 13 July 2004 she applied to remain as an unmarried partner of a British citizen. She had by then had a daughter, born on 14 November 2001. Her application was refused reasonably promptly on 21 January 2005. She did not qualify under the Immigration Rules, but the refusal letter also dealt with the position under Article 8 of the European Convention on Human Rights, ECHR. It stated that her partner could live with her and their daughter in Jamaica so there would be no interference with family life. Alternatively she could seek entry clearance in the normal way from Jamaica.
4. Her appeal against that decision came before Immigration Judge Adio in February 2006. In his determination promulgated on 16 February 2006 he found that there was a genuine family and private life between the applicant, her partner and their daughter in the United Kingdom. He also found that it would not be unreasonable for her partner to relocate in Jamaica. However, he was concerned about a serious eye condition from which their daughter suffers. He found that she required hospital visits every three to four months and that due to infections she also required visits in addition to that. Without proper medical supervision she could go blind.
5. The daughter at that time was aged 4 years and 3 months. The immigration judge found that she could not be, and I quote:

"… expected to seek severely inadequate eye care services in Jamaica when she is as of right entitled to free eye services in the UK."

He also found at paragraph 20 that:

"… it would be unreasonable to expect the appellant to leave her daughter for any length of time in view of the daughter's emotional needs and her medical condition."

6. He therefore concluded that it would be a disproportionate interference with the applicant's Article 8 rights to remove her from the United Kingdom in order to seek entry clearance from Jamaica.
7. The Secretary of State sought and was granted an order for reconsideration. At the first stage of that a panel of three immigration judges concluded that Immigration Judge Adio had made an error of law. The crucial paragraph in that decision was paragraph 2, which reads as follows:

"Given that only a relatively short period of separation would be involved in that process (either between the appellant and her daughter, or the daughter and monitoring for her eye condition at Great Ormond St Hospital), the immigration judge failed to explain with proper or any detailed reference to the evidence before him why even that would be disproportionate to the legitimate purpose of immigration control served by requiring the appellant to regularise her situation in the proper way."

It is clear from that passage that this was a reasons deficiency, which the AIT was identifying as the error of law in the first immigration judge's decision.

8. The full reconsideration then took place before Immigration Judge Mrs Baker, whose decision was promulgated on 25 April 2007 and is the one now under challenge. By then the appellant's daughter was aged 5 ½ and was in reception class. The immigration judge found that she required regular monitoring of her eyes, approximately on a monthly basis; that without that there was a risk of her losing her vision and that these necessary facilities would not be available in Jamaica. Therefore there was an insurmountable obstacle to the family as a whole residing in Jamaica and to the applicant returning there with her daughter.
9. However, the immigration judge went on to note that the applicant's partner was self-employed and that, while there would be hardship caused if he had to alter his working hours to take his daughter to and from school and to her monthly hospital appointments, there was no evidence that he could not do so, even for a period of approximately six months. That was the period referred to in evidence as the most likely time for the obtaining of entry clearance. The applicant's partner also had other family members in the United Kingdom.
10. The immigration judge found also that he and the applicant must have known that her rights of residence here were precarious. Immigration Judge Baker concluded her determination as follows at paragraph 49:

"Applying the balancing exercise and applying the authorities strictly, I find that the removal of the Appellant to Jamaica where she can make an application through the proper channels, leaving her daughter to be cared for by her father and where medical care can continue, is proportionate to the legitimate aim of maintaining effective immigration control. The interference to family life resulting from her being required to return to Jamaica and make an application for settlement cannot be said to prejudice the family life of the Appellant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8."

She dismissed the applicant's appeal.

11. The first ground of challenge to that decision, and indeed the main ground relied upon today by Mr Bazini on behalf of the applicant, is that there was no material error of law in Immigration Judge Adio's decision. If that is right, of course, then the matter should never have gone to reconsideration. It is said by Mr Bazini that Immigration Judge Adio applied the right legal principles and that his conclusion was open to him. Mr Bazini emphasises that a decision upon proportionality is essentially one of fact, not to be interfered with unless it is perverse in the true Wednesbury sense.
12. For my part I entirely accept those propositions, but it does not grapple with the point identified by the AIT panel as the error of law, which was that the immigration judge had not given adequate reasons for his conclusion that it would be disproportionate for there to be a limited period of separation between, for example, mother and daughter.
13. Mr Bazini then tackles that point head on. He submits that the reasons given here were adequate. He makes the point that not merely did the immigration judge simply say, as he says at the beginning of paragraph 20, it would be unreasonable to expect the appellant to leave her daughter for any length of time, in view of the daughter's emotional needs and her medical condition, but he goes on to say, later in the same paragraph, that he accepted the submissions made by Mr Ali as making up the appellant's claim. That, says Mr Bazini with some persuasiveness, takes us one back to paragraph 14 of the determination.
14. If one goes back to paragraph 14 of Immigration Judge Adio's decision we can see a reference there to the daughter being attached to the appellant, by which I take it is meant emotionally attached. He says it is disproportionate to leave a child of nursery age and the child is the innocent party. There is then a reference to it taking years for entry clearance to be issued in the absence of an undertaking from the Secretary of State.
15. I am afraid that I do not find these submissions persuasive. Certainly the first sentence in paragraph 20 of the determination by itself is clearly inadequate. There is no explanation, for example, as to why it is unreasonable for the applicant to leave her daughter, for the purpose of achieving entry clearance, because of her medical condition. One finds there no reference by the immigration judge to the potential role of the father as someone who could see that his daughter got to hospital regularly within this country.
16. If one takes on board, as Mr Bazini I think rightly says, paragraph 14, which is part of the submissions made by Mr Ali on behalf of the applicant at that hearing, one finds a reference to the age of the child, she being 4 ¼, and we see a statement that it takes years for entry clearance to be issued, for which, so far as I can see in the bundle and in the determination, there is no evidence. Those matters by themselves do not significantly expand the reference, to which I referred, at the beginning of paragraph 20. There is no reference by the immigration judge to the potential role of the father in emotional terms.
17. Obviously it is a matter of judgment as to whether reasons given in a situation like that are adequate, but one would expect to see a far more careful and balanced assessment of proportionality than one gets here. In my judgment it was a legitimate criticism of Immigration Judge Adio's decision to say that he does not give adequate reasons for his conclusion on proportionality. Such a failure by him does amount to an error of law.
18. That deals really with the main point which has been urged upon me this morning. It is also said, and this appears in the written skeleton at some length and briefly in the oral submissions this morning, that Immigration Judge Baker erred in law in her decision on proportionality. It is said that she did not properly consider the impact of separation on the daughter. I do not agree. At paragraph 33 of Immigration Judge Baker's decision she makes it clear that she did have in mind the impact on the daughter in emotional terms. It is said in the written skeleton that the immigration judge there used the insurmountable obstacle test to assess whether Article 8 was engaged. That is a complete misreading of the determination, and I note that Mr Bazini has not sought to advance that this morning. The immigration judge clearly accepted that Article 8 was engaged. What she ultimately did not accept was that it would be breached.
19. I therefore do not find that there is any error of law or even any arguable error of law which would justify granting permission to appeal to this applicant. Like Immigration Judge Baker and the other immigration judge, I do have considerable sympathy for the applicant and her family. I express the hope that the entry clearance officer in Jamaica will seek to deal with any application by this applicant as rapidly as possible and I direct that this part of my judgment be sent to the Home Office. Having said that, there is no error of law here in the decision of Immigration Judge Baker or in the criticism of Immigration Judge Adio's decision. It follows that there is no realistic prospect of a successful appeal and this application must be dismissed.

Order: Application refused