Case No: C5/2007/1225
Neutral Citation Number: [2007] EWCA Civ 1543
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. AI/03636/2006]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 4th December 2007

Before:

LORD JUSTICE LAWS
LORD JUSTICE LLOYD 
and
LADY JUSTICE HALLET
- - - - - - - - - - - - - - - - - - - - -

Between:

	NG (PAKISTAN)
	Appellant	
	- and -		
	
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr S Juss (instructed by Messrs Fountain) appeared on behalf of the Appellant.
Ms S Chan (instructed by Treasury Solicitors) appeared on behalf of the Respondent.

- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Laws:

1.	This is an appeal brought with permission granted by Sir Henry Brooke, on 16 July 2007, against the decision of Senior Immigration Judge Nichols promulgated on 4 April 2007 when, on a reconsideration, she dismissed the appellant’s appeal against the decision of the Secretary of State made on 14 April 2006 to refuse the appellant’s application for leave to remain in the United Kingdom under paragraph 289(A) of the Immigration Rules or, as the Secretary of State’s decision letter succinctly put it, “on domestic violence grounds”.  However, at least by the stage when the case reached the senior immigration judge, it was common ground that the appellant had no claim to stay under the Rules because she had not made her application under Rule 289(A) until two years after her earlier limited leave to remain as a spouse had expired.  The issues before Senior Immigration Judge Nichols and, indeed, Immigration Judge Phull who had first determined the appellant’s appeal, turned entirely on Article 8 of the European Convention on Human Rights.

2.	The appellant is a Pakistani national, born on 22 July 1974.  On 18 March 1998 she married a British citizen of Pakistani origin.  She entered the United Kingdom on a spouse’s visa on 29 November 2000.  The visa was extended until 25 November 2001.  Two children -- a boy and a girl -- were born to the marriage in the United Kingdom and are British citizens.  They are three and seven years of age, respectively.  Unfortunately the appellant’s husband suffered from a mental illness and was prone to violence towards her.  In July 2001 she left the matrimonial home after a beating suffered when she was pregnant.  She returned in April 2003, only to leave again in February 2004 after her husband had been admitted to hospital owing to his mental health difficulties.  She applied to the Home Office for leave to remain under the domestic violence policy -- that is as I understand it Rule 289(A), in March 2004.  She lived with her brother in the Birmingham area from May 2004 onwards.  She submitted her application to the Secretary of State for indefinite leave on 22 April 2004.  The Secretary of  State, whose decision letter was as I have indicated not given until 14 April 2006, considered that she had failed to provide adequate evidence that her marriage had broken down as a result of domestic violence.  However, the Secretary of State proceeded to consider whether she should be allowed to remain exceptionally outside the Rules, having regard in particular to Article 8 of the Convention.  He decided she should not.  The appellant’s appeal against that decision was determined by Immigration Judge Phull on 9 June 2006.

3.	The immigration judge accepted (paragraphs 13-15) that the only issue before her was that arising under Article 8.  In light of Mr Juss’s submissions this morning I should cite paragraph 15:   

“I now turn to whether the Appellant’s human rights would be breached if she were removed from the UK.  Mr Edis [advocate for the Home Office] accepts that there is a family life between the Appellant and her two children who are British by birth; they have a relationship with their father who has mental health difficulties.  He is currently on medication and has regular contact with the boys.  The Appellant says that if she is removed alone the children would be unable to enjoy a family life with both their parents.  If she took them with her to Pakistan they would be denied their rights to enjoy a family [the word ‘life’ is omitted] with their father as well.  She argued that despite their father’s mental health difficulties the children did enjoy contact with him on a regular basis.”

4.	Reference to “boys” is a mistake.  As I have said the children were a boy and a girl.  The case advanced on Article 8 was essentially that if the appellant were removed to Pakistan she would be victimised and ostracised as a single mother, and if her children went with her they would be denied the right to enjoy family life with both their parents.  As it was, they enjoyed regular contact with their father.  Immigration Judge Phull considered this court’s decision in Huang v SSHD [2005] EWCA Civ 105.  Having found (paragraph 15) that family life subsisted between the appellant and her children in the United Kingdom, the immigration judge held, implicitly at least, that there would prima facie be a violation of Article 8 if she were removed to Pakistan; and so the question was whether that removal would in the circumstances be proportionate to the legitimate aim of immigration control and fair dealing between one prospective immigrant and another.  Immigration Judge Phull directed herself that since the appellant had no claim to stay under the Immigration Rules, she could only prosper under Article 8 if she could show that her case was “truly exceptional”.  That was the language this court used in Huang.  She found that the case was indeed truly exceptional.  There were the beatings by the husband, and the submission about ostracism and violation.  The appellant could not enjoy family life “with her two children confined within the walls of her parents’ home” (paragraph 20).  If the children left the UK with their mother they would be denied regular contact with their father.

5.	In the result Immigration Judge Phull accepted that there were exceptional circumstances and allowed the appeal.  The Secretary of State applied for a reconsideration on the ground that Immigration Judge Phull’s decision was marred by a material error of law.  So the matter came before Senior Immigration Judge Nichols.  She was to observe (paragraph 11) that ground 2 of the Secretary of State’s grounds was “the key issue in the case”.  That ground asserted that the immigration judge had failed to apply the tests set out by Lord Bingham in R v SSHD ex parte Razgar [2004] UKHL 27, which are to be applied for the determination of an Article 8 appeal.  The senior immigration judge (see paragraph 12) set out the five questions Lord Bingham said fall to be asked in a case where removal was resisted on Article 8 grounds.  I need only set out the first two questions:

“(1) Will the proposed removal be 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?”

6.	The senior immigration judge held that there was an error of law in the immigration judge’s reasoning.  Essentially, she had not addressed the second question posed in Razgar; therefore she had not properly considered the question whether there was or was not evidence of grave consequences flowing from the appellant’s prospective removal sufficient to engage the operation of Article 8.  This is what she said:

“15.  There was no dispute that the appellant enjoys family life with her two children in the United Kingdom at present.  The judge also identified that the appellant has a Residence order because of the father’s mental difficulties and that the children’s father has regular contact.  Again it is nothing more than a repetition of what the judge found at paragraph 15, i.e. that there was family life in existence.  It does not identify why family life was engaged for the purposes of the United Kingdom’s obligations to the appellant in relation to Article 8.

16.  However, the Immigration Judge then goes on at paragraph 19 onwards as set out above, to carry out the balancing exercise in relation to proportionality.  This is before she has properly determined why Article 8 is engaged on the facts of this case.  There is a clear and obvious omission in her reasoning.  The Immigration Judge has failed to identify the nature of the interference with the appellant’s right to family life in the United Kingdom and what were the grave consequences that would flow from it.

17.  This was a case where the appellant was no longer living with her husband.  It was accepted that she could not meet the requirements of the Immigration Rules and therefore had no right to remain on any basis that would normally be considered by the respondent.  She and her children clearly enjoyed family life together.  The only evidence that was put forward that the appellant and her children would not be able to relocate to Pakistan was her fear that she might be ostracized by her own community.  It was accepted that the appellant had family in Pakistan to whom she could return.  The fact that the appellant did suffer domestic violence during her marriage cannot be a factor to which significant weight could reasonably be attached by the Immigration Judge given that the appellant was not in a position to meet the requirements of the Immigration Rules in this regard.  If it were significant factor, it would render the provisions of the Immigration Rules in relation to domestic violence otiose.  Further, the judge’s reliance at paragraph 20 on the appellant’s statement that she feared she would be isolated and ostracised was not sufficient in my view to demonstrate that grave consequences would flow from the appellant’s removal.  The appellant’s statement on its own did not sustain such a conclusion and had the Immigration Judge properly asked herself that question, she could not reasonably have relied on that evidence.

18.  Further, the Immigration Judge’s findings at paragraph 21 that the children would not be able to leave the UK without her and they would be denied the right to contact with their father ignores any exploration of why it would not be possible for the children to relocate to Pakistan with their mother so continuing their family life there and why it would not be possible for their father to maintain contact with them by either visits to Pakistan or the children visiting the UK to see him.  The Immigration Judge pointed out that the children are of a tender age and there is therefore clearly an argument that they are at an age where they could be expected to adapt to life in Pakistan.”

The senior immigration judge proceeded, however, to put the matter in the alternative, as follows:

“19.  In my view on the evidence that was before her she ought to have reached the conclusion that Article 8 was not engaged because there was no evidence before her that grave consequences would flow from the appellant’s removal.  However, even if I am wrong about that, for the same reasons the evidence that was before the Immigration Judge could not sustain a conclusion that there were factors so exceptional in this case that removal would be disproportionate.

20.  To summarise, the appellant’s statement that she feared isolation was not sufficient on its own to sustain a conclusion that the appellant would have no support in Pakistan or that she would be a victim of discrimination in her own community.  The fact that she had suffered domestic violence was an historical matter as the appellant had left her husband and he had been receiving treatment for his mental health problems.  The appellant had not made any application under the rules within time and therefore had no right of appeal against that decision made by the respondent.  The fact that she had been the victim of domestic violence in the past was not sufficient reason in itself to engage the United Kingdom’s obligations to respect her right to pursue her family life in the UK.  It is accepted that the appellant’s children have a family life with their father as he has regular contact with them, however as the Immigration Judge identified, the strong relationship is with their mother and she is responsible for their day-to-day care.  There was no evidence adduced as to why the children could not accompany their mother to Pakistan except for the factor of their relationship with their father.  There was no evidence adduced as to why that relationship could not be continued either by visits and/or telephone and written contact.  It could not reasonably be concluded on these facts that the respondent’s decision was disproportionate.” (For the shorthand writer: please check pages 37-38 of the bundle)

7.	The appellant by Mr Juss first submits that the senior immigration judge overruled the immigration judge on matters of fact and had no business doing so unless the immigration judge’s findings were perverse.  Mr Juss submits that, far from being perverse, the immigration judge’s approach could not be flawed legally.  The argument, as it was originally put in writing, is centred on the senior immigration judge’s conclusion that Article 8 was not engaged because the appellant’s removal would entail no grave consequences.  The appellant also criticises the senior immigration judge for being dismissive of the ex‑husband’s frailty.  So much for the argument in writing.  Mr Juss developed it this morning by submitting, with some force, that there was no material error of law by the immigration judge, essentially because -- on a proper reading of her decision, not least paragraph 15 -- she had in fact, albeit implicitly, addressed the Razgar questions.  I will come to that submission in a moment.

8.	The senior immigration judge has not, as it seems to me, differed from the immigration judge upon any matter of primary fact.  She has merely examined the facts in light of the approach to Article 8 cases required by the Razgar decision.  I will refer shortly to the House of Lords’ disposal of the Huang case.  The House had not decided Huang at the time of the immigration judge’s decision.  The senior immigration judge emphasised the importance of question two in Razgar as to the gravity of the consequences of any interference with Article 8 rights.  This had not, she concluded, been confronted by the immigration judge.  The potential loss of contact with the children’s father would not itself suffice.  

9.	Generally these are the points which, on the senior immigration judge’s decision, go to the question whether Article 8 was engaged.  There was no prospect of the father actually caring for the children.  The children would travel with their mother if she were removed.  It was the mother’s Article 8 rights that were under scrutiny, not the father’s or even the children’s (see the decision of the IAT in Kehinde (Appeal – section 65 1999 Act – Rights of Others) Nigeria [2001] UKIAT 00010).  Next, the appellant had family in Pakistan.  The earlier domestic violence was historic.  The children were young and could settle in Pakistan.  It could not be said that their removing to Pakistan would end all contact with the father; and the appellant’s fears of isolation and ostracism could not, of themselves, make an Article 8 case.  

10.	Before expressing a view on this first part of the case as to the applicability of Article 8, it is convenient to articulate the second argument advanced by Mr Juss, relating to proportionality.  Here reference is made to the decision of the House of Lords in Huang [2007] UKHL 1.  Their Lordships made it clear that there was no special test of exceptionality in an Article 8 case where such a case is brought outside the Immigration Rules.  The focus here is on the application of the proportionality requirement, which of course assumes that Article 8 is engaged in the case.  It is said that Immigration Judge Phull considered all the matters commended in Huang in the House of Lords, albeit that decision had not in fact been made by the time she arrived at her determination.  In particular, Mr Juss cites this passage from Huang:

20. In an Article 8 case where this question is reached, the ultimate question for the appellate
immigration authority is whether the refusal of leave to enter or remain, in circumstances where the
life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all
considerations weighing in favour of the refusal, prejudices the family life of the applicant in a
manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8.
	
11.	Mr Juss would submit that Immigration Judge Phull’s decision is a proper answer to this question and the senior immigration judge’s decision is unduly restricted and unduly dismissive of the reasoning of the immigration judge.  Now I will gather these arguments together and turn first to the question whether the senior immigration judge was right to conclude that the immigration judge had not properly reasoned the second question in Razgar.  It seems to me, notwithstanding Mr Juss’s insistence this morning, there was a failure here by the immigration judge to focus certainly on Razgar question two.  Such a focus is not to be found in paragraph 15 of the immigration judge’s decision.  On the facts as I have summarised them, the true scope for a complaint that the appellant’s private and family life would be substantially or gravely undermined by her removal was very limited indeed.  The immigration judge did not effectively confront the question.  I consider that the senior immigration judge was entitled to hold that her determination was flawed by an error of law.  

12.	I am not, with respect, impressed by some marginal criticisms directed by Mr Juss to points in paragraphs 17, 18 and 19 of the senior immigration judge’s decision.  I consider that, in the particular circumstances here, the senior immigration judge was justified in concluding that Article 8 was not engaged; but as regards that, the case may be said to be very much upon the borderline.  

13.	If that were a wrong conclusion, as I have shown, the senior immigration judge turned in the alternative to the issue of proportionality.  As regards that, again one goes back to Razgar.  In paragraph 20 of his opinion, Lord Bingham said:

“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.”

As was said in AG (Eritrea) [2007] EWCA Civ 801 by Sedley LJ paragraph 37:

“..there will be many cases in which it can properly be said by an appellate tribunal that on no view of the facts could removal be disproportionate.”

14.	It seems to me that this is such a case.  I consider that the senior immigration judge’s reasoning on proportionality is consistent with their Lordships’ decision in Huang and entirely supportable as a matter of law.  The fact that the exceptionality test, adumbrated by this court in Huang, has been set aside by the House of Lords -- that was really Mr Juss’s third point -- does not, I think, assist the appellant on the facts and merits here.  This was a weak Article 8 case, if I may express it in overall terms.  The senior immigration judge’s analysis is well supportable.  The immigration judge dealing with the matter first time around did not, as it seems to me, properly grapple with the Razgar question.  In all these circumstances and for all those reasons, I would dismiss the appeal.

Lord Justice Lloyd:
 
15.	I agree.

Lady Justice Hallet:

16.	I too agree.

Order:  Appeal dismissed