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: IA/09785/2006]

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th December 2007

Lord Justice Keene:

1. This is an appeal in which the issue centres around the     concept     of       proportionality in applying Article   8 of the European Convention on Human Rights ("the ECHR"), particularly where there has been significant delay on the part of the Secretary of State in dealing with an application for leave to remain in the United Kingdom.
2. It is an appeal from a decision of the Asylum and Immigration Tribunal ("the AIT") sent to the parties on 3 January 2007. That decision was made as a result of an order for reconsideration of an earlier determination made by an immigration judge in favour of the present appellant in October 2006.
3. The appellant is a female citizen of the Democratic Republic of Congo, who arrived in this country on 2 October 2002. She was then aged 21. An application for asylum was refused by the Secretary of State. She appealed against that refusal, and while her appeal was pending she married a British citizen. That marriage took place on 18 June 2003, and no question appears to have been raised as to its genuineness.
4. On advice she then withdrew her asylum appeal, and on 12 November 2003 she sought leave to remain as the spouse of a British citizen settled in the United Kingdom. Her application to that effect was formally acknowledged by a letter from the Immigration and Nationality Directorate of the Home Office dated 23 December 2003. That stated that her application was valid but could not be decided without more detailed consideration. It went on to say this:

"Our published aim for postal applications made on or after 1 August 2003 is that we should deal with all of them within 13 weeks at most from the date we received them in the Immigration and Nationality Directorate. We expect to decide your application within this timescale.

[I then omit some words.] We would be most grateful if you did not make telephone or written enquiries about the progress of your application before you hear from us unless you need a passport or other document urgently. Please telephone the number on this letter in the first instance if you have such a need. Also, please note that it is no longer possible to make enquiries in person about the progress of an application at any of the Immigration and Nationality Directorate's Public Enquiry Offices".

5. The appellant did not make any further inquiries about the progress of her application until early 2006. She had by then heard nothing further about her application from the Immigration and Nationality Directorate. But then in February 2006, on instructions, her representatives made enquiries on her behalf. Eventually, though only after a further six months, her application was refused by a letter dated 7 August 2006.
6. In the meantime, the appellant had given birth to a daughter in January 2005 and had become pregnant again. By the time her appeal against the refusal of her application was heard in late September 2006, she was seven months pregnant with her second child, due to be born in late November.
7. Her appeal was heard by Immigration Judge Bolger. His determination, promulgated on 6 October 2006, recorded a wide measure of agreement between the parties as to the matters in issue. Thus, the appellant accepted that she could not succeed under the Immigration Rules or Policy DP3/96. Her claim was that her removal would be in breach of her right to respect for her private and family life under Article 8 of the ECHR. Both parties accepted that the appellant had established a private and family life in this country and that her removal would amount to an interference with that. The issue as identified by the Immigration Judge and as accepted by the parties was whether that interference would be disproportionate.
8. The Immigration Judge recorded that the Secretary of State's representative did not suggest that it would be realistic to expect the appellant's husband to relocate permanently to the Democratic Republic of  Congo. In his refusal letter, the Secretary of State had suggested that her husband could remain in the United Kingdom while she made an application from abroad for entry clearance to return under the Immigration Rules as the spouse of a person present and settled here. It does not appear to have been argued at the hearing before Immigration Judge Bolger that the other requirements of the Immigration Rules for entry in that capacity were unlikely to be met. So the real issue, as ultimately defined by the judge, was whether it would be a disproportionate interference with her Article 8 rights to expect her to return to the DRC to apply for entry clearance. That issue is identified by the judge in paragraph 8, where he asks it in terms of whether it would be disproportionate "in the particular circumstances of this case", and he went on to ask himself whether the appellant's case was truly exceptional.
9. In dealing with this issue, the Immigration Judge took account of the delay by the respondent in dealing with the appellant's application. He referred to that part of the letter from the Immigration and Nationality Directorate dated 23 December 2003, which asked her not to make enquiries about the progress of her application before she heard from them, and he commented as follows:

"The Appellant can hardly be blamed, in the circumstances, for not 'chasing up' the Respondent who had specifically asked her not to make enquiries."

Having then described the delay, the Immigration Judge went on to say this at paragraphs 13 to 15 of his determination:

"13. Throughout all this time, it follows that the Appellant's private and/or family life in the United Kingdom was becoming more and more established and, as a married woman, she can hardly be criticised for having one child (although not until 2005) or becoming pregnant with another (which must have been conceived long before the Respondent's refusal of her application).

14. Both representatives made submissions as to the effect of delay in a case such as this. In particular, Miss Mabon drew my attention to MM [2005] UKIAT 00163 and Mr Middleton drew my attention to the recent decision of Collins J in Ajoh [2006] EWHC 1489 (Admin), decided on 16 May 2005".

15. In point of law, Ajoh is, of course, binding upon me and I cannot find any significant difference between the circumstances of that case and the circumstances of this case which would make this case distinguishable on the facts. Indeed, in Ajoh the delay was one of only two years, as opposed to almost three in this case. The background circumstances, although not, of course, identical, are strikingly similar.

16. Looking at the matter as a whole, therefore, for the reasons I have given, I find that the Appellant is entitled to succeed in this appeal and I will allow it accordingly."

10. The Secretary of State sought an order for reconsideration, which was made on the basis that it was arguable that certain Court of Appeal authorities, identified as Akaeke v SSHD [2005] EWCA Civ 947 and Strbac v SSHD [2005] EWCA Civ 848, should have been preferred on the issue of delay to the decision in R (Ajoh) v SSHD. Thus it was that it came before Senior  Immigration   Judge Freeman and Immigration Judge Jones for reconsideration, leading to the decision now under appeal.
11. In its decision, the tribunal members referred to this court's decision in HB (Ethiopia) v SSHD [2006] EWCA Civ 1713, which post-dated Immigration Judge Bolger's decision. They noted that the appellant had a potential immigration right as the wife of a British citizen, and that:

"…the Home Office may be said to seek to enforce a 'burdensome procedural rule' against her by requiring her to go back to the DRC to get a wife visa. She then had to show (see sub-paragraph iv of the Court of Appeal's summary) that hers was one of those 'extreme cases, of national disgrace or of the system having broken down [Akaeke], to enforce those procedural rules'". (sic).

12. They went on to observe that, unlike Akaeke, the appellant had not chased up the Home Office until the last six months of the delay, which was similar to the situation in Ajoh. They then commented at paragraphs 8 and 9:

"8. The additional element in both cases, not present, so far as we know, in Akaeke, was the Home Office letter discouraging further inquiries. However in Ajoh the letter set out no period after which a final decision might be expected, whereas the present case it gave one of 13 weeks. Following that period, the appellant waited for two years, as we have noted, before making any inquiries at all; and this was the substantial delay in the present case. Clearly something had gone wrong at the Home Office; but the appellant, who had been given a period of 13 weeks, must have realised that. Could the delay of two years, during which she did nothing at all to get the decision she must have been expecting, coupled with the six months it took her representatives to get it when they did try, reasonably have been described by the judge as one of those 'extreme cases, of national disgrace or of the system having broken down', represented by Akaeke?"

"9. In our view it could not; and it must follow that, when the judge compared the facts of this case with those of Ajoh, and based his decision on that -- even if by implication he must have found the Home Office delay 'inordinate and inexcusable' as Collins J described it in that case -- rather than on the principles to be found in decisions of the Court of Appeal such as Akaeke and Strbac, the error of law he made was a material one."

The tribunal, having found what it regarded as a material error of law, decided not to remit the matter, but to dismiss the appeal.

13. The main point now made on behalf of the appellant in challenging that reconsideration is that the AIT was wrong to find any error of law in the decision of the Immigration Judge. Miss Abigail Smith relies on various authorities as establishing that at the reconsideration stage the AIT must first decide whether there has been a material error of law in the original decision, and that only if there has can it proceed to reconsider the substance of the appeal. Merely because the AIT would have reached a different decision itself on the issue of proportionality of return does not establish any such error of law. It must be shown that the judge adopted the wrong approach to that issue. This was a case, says Miss Smith, where the appellant had a potential right to be in this country under marriage policy, and so she was in a stronger position than the appellant in Strbac relied on by the AIT. Miss Smith points out that although the Immigration Judge did not expressly refer to Akaeke, that decision was relied on and followed in Ajoh, which the Immigration Judge did note and expressly cite, and did seek to apply. HB (Ethiopia) v SSHD, she says, does not undermine or change those legal principles which the Immigration Judge was seeking to apply in respect of delay and proportionality. Consequently, the decision by Immigration Judge Bolger on proportionality was one at which he could properly arrive, and there was no error of law in his approach or his conclusion.
14. For the Secretary of State, Mr Collins submits that the Immigration Judge failed to apply the appropriate principles, in particular because he did not do a proper weighing exercise. It is accepted that the case of HB (Ethiopia), though decided after the Immigration Judge's determination in this case, did not change the applicable legal principles; but Mr Collins contends that if one looks at paragraph 15 of the decision by Immigration Judge Bolger, one finds that all he was doing was looking at another case and saying that the facts there were similar, and therefore to return this appellant would be disproportionate. That, it is said, is the wrong approach and fails to carry out the appropriate weighing exercise. In addition, it is said that the Immigration Judge should have considered whether the Home Office delay amounted to an extreme case of national disgrace or the system having broken down, in accordance with Akaeke. It is submitted that he failed to do so.
15. In his written submissions, Mr Collins contends that the AIT had properly noted that there was a significant difference on the facts between the present case and Ajoh, namely, that this appellant was advised of the thirteen-week period within which the respondent expected to reach a decision. That failure is said to be of particular significance. Mr Collins accepts that, when one analyses the way in which the AIT approached this matter, the error of law which it identified seems to have been at least in part based upon the Immigration Judge having arrived at a perverse decision, namely, one at which no reasonable Immigration Judge could have arrived. That is reflected in the final sentence of paragraph 8 of the AIT decision, but Mr Collins courageously takes the position that the AIT was entitled to conclude that the Immigration Judge's decision here was perverse, and he seeks to uphold that line of reasoning. For all these reasons, it is said that the AIT was right to find that the Immigration Judge had made an error of law.
16. If he is right on that, there are other circumstances which we need to look at and other arguments which would need to be addressed; but for my part, I conclude that the AIT was wrong to find a material error of law in the decision of Immigration Judge Bolger. Let me explain why.
17. I note that it is accepted by both parties that the AIT's reconsideration exercise could only be embarked upon if and when it had correctly identified a material error of law in the Immigration Judge's decision. That would seem to follow from Section 103A(2) of the Nationality, Immigration and Asylum Act 2002, which provides that an order requiring reconsideration may be made:

"…only if it [that is, the appropriate court] thinks that the Tribunal may have made an error of law".

The Asylum and Immigration Tribunal Procedural Rules 2005 likewise deal at Rule 31 with the reconsideration stage, stating at paragraph 2:

"(a) the Tribunal carrying out the reconsideration must first decide whether the original Tribunal made a material error of law; and

(b) if it decides that the original Tribunal did not make a material error of law, the Tribunal must order that the original determination of the appeal shall stand."

This court's decision in DK (Serbia) v SSHD [2006] EWCA Civ 1747 confirms that to be the position.

18. It is right that a number of matters may have to be decided in cases involving an Article 8 claim, but most of them were not in issue in the present case. As I have already recorded, there was agreement that this appellant had established a private and a family life in the United Kingdom, and that her removal would interfere with her right to such a life to an extent which engaged Article 8. Likewise, there was no dispute that removal would be in accordance with the law and would pursue a legitimate objective, namely that of maintaining proper control over immigration. Consequently, the sole matter in issue was whether the removal of the appellant and the consequent interference with her private and family life was proportionate to the legitimate objective sought to be achieved. Thus, the question which arises on this appeal is whether there was an error of law in Immigration Judge Bolger's decision on proportionality.
19. It does need to be borne in mind that decisions on proportionality are to a large degree a matter of judgment for the decision maker. It involves, as Mr Collins accepts, the weighing up of the relevant and usually conflicting considerations which arise in the individual case. In Mukarkar v SSHD [2006] EWCA Civ 1045, Carnwath LJ, in a judgment with which Auld LJ and Sedley LJ agreed, said this at paragraph 11:

"In normal circumstances, interference with family life would be justified by the requirements of immigration control. However, it is recognised that a different approach may be justified in 'a small minority of exceptional cases, identifiable only on a case by case basis' (per Lord Bingham, Razgar paragraph 20). The House of Lords has declined to lay down a more precise legal test. Accordingly, whether a particular case falls within that limited category is a question of judgment for the tribunal of fact, and normally raises no issue of law (see Secretary of State v. Akaeke [2005] EWCA Civ 947)".

20. That passage has since been cited with approval by this court, both in AG (Eritrea) v SSHD [2007] EWCA Civ 801 at paragraphs 30 to 31, and in MT (Zimbabwe) v SSHD [2007] EWCA Civ 455. Somewhat in parentheses, I should add that the quotation in paragraph 11 of Mukarkar from Lord Bingham in Razgar [2002] EWCA Civ 840 has since been clarified by the House of Lords in Huang v SSHD [2007] UKHR 11, to emphasise that the reference to "exceptional cases" was not intended to lay down a legal test, but only to describe the expected consequence of applying the appropriate test. That, however, does not detract from the force of the point which Carnwath LJ was seeking to make.
21. In my view, the statement that a judgment on proportionality normally raises no issue of law is undoubtedly correct, and indicates the need for caution when a tribunal is being invited to conclude that an error of law is to be discerned in such judgments.
22. If I may return to the decision in Mukarkar, I note that Carnwath LJ there went on to say this at paragraph 40:

"It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case (as is indeed illustrated by Mr Fountain's decision after the second hearing). The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law so as to justify an appeal under the old system or an order for reconsideration under the new."

23. It follows that the AIT has to be careful at reconsideration hearings not to allow its own view as to what is proportionate in a given case to determine the existence of an error of law. More than that is required: normally, an error in the approach adopted by the first decision maker, or a decision so remarkable on the facts as to be perverse in the Wednesbury sense.
24. It is into this structure that the principles deriving from judicial decisions on delay by the Home Office in dealing with applications have to be inserted. Such delay is one of the factors which may be relevant to the decision on proportionality. On the potential significance of such delay, we now have the benefit of the valuable summary of earlier decisions provided by this court's decision in HB (Ethiopia). As paragraph 1 of Buxton LJ's judgment there makes clear, that decision did not seek to break new legal ground. Miss Smith is, in my view, clearly right. It sought rather to reconcile the relevant previous decisions on administrative delay in the field of immigration and to summarise the principles which can be derived therefrom. It ought to be borne in mind that that case does seek to summarise previous decisions, and that it will at times be necessary to look back at the cases cited for a fuller exposition of a particular principle. The precise words used in the summary in HB (Ethiopia) must not be treated as if they have some sort of statutory force.
25. It is at paragraph 24 that Buxton LJ sets out the conclusions which he draws from the previous decisions. Five of the subparagraphs are of particular relevance to the present appeal. They are as follows:

"iii). Where delay is relied on as a reason for not applying immigration policy, a distinction must be made between persons who have some potential right on immigration policy to be in this country (for instance, under marriage policy, as in Shala and Akaeke); and persons who have no such right.

iv) In the former case, where it is sought to apply burdensome procedural rules to the consideration of the applicant's case, it may be inequitable in extreme cases, of national disgrace or of the system having broken down [Akaeke], to enforce those procedural rules [Shala; Akaeke]

v) Where the applicant has no potential rights under specifically immigration law, and therefore has to rely on his rights under article 8(1), delay in dealing with a previous claim for asylum will be a relevant factor under Article 8(2), but it must have very substantial effects if it is to influence the outcome [Strbac at §25.]

viii) Arguments based on the breakdown of immigration control or of failure to apply the system properly are likely only to be of relevance if the system in question is that which the Secretary of State seeks to rely on in the present proceedings: for instance, where a procedural rule of the system is sought to be enforced against the applicant [Akaeke]. The same arguments do not follow where appeal is made in article 8 proceedings to earlier failures in operating the asylum system.

ix) Decisions on proportionality made by tribunals should not, in the absence of errors of principle, be interfered with by an appellate court [Akaeke]."

26. We are dealing here with a subparagraph (iv) case, because of the appellant's potential right to be in the United Kingdom under Marriage Policy. This is not what one might call a Strbac case, despite the reference to that decision in the reconsideration decision in this case, because in Strbac the appellant was not married to a British citizen. He had no potential right to enter the United Kingdom, since he had come to this country from Croatia with his wife. Consequently, any removal of him was aimed at more than merely securing the observance of the procedural rule requiring a valid entry clearance. As the decision in HB (Ethiopia) indicates, in a situation where the appellant has no potential right to enter, administrative delay must have had very substantial effects for it to influence the outcome on the issue of proportionality.
27. Guidance on cases where there is a potential right to enter, as in the present case, is to be found (as paragraph 24 (iv) of HB (Ethiopia shows) in such decisions as Akaeke. The other case referred to in that subparagraph, Shala, has no bearing on the present issue.
28. The starting point is that there is a sound argument, even in cases where there is such a potential right, for requiring the person in question to leave the United Kingdom and to seek entry clearance from abroad. Otherwise, there is an incentive provided to people to jump the queue, which is unfair to those observing the proper procedures: see R (Mahmood) v SSHD [2001] 1 WLR 840, paragraph 26. Consequently, it will normally be proportionate to require that procedure to be observed. But that normal situation admits of exceptions, and the force of the Secretary of State's argument that the normal procedure should be observed is weakened where he himself has failed to operate the immigration procedures effectively and efficiently, especially if the applicant's position has altered during the period of administrative delay.
29. It is at this point that one needs to look in a little more detail at Akaeke. That case concerned a Nigerian woman who had entered this country illegally, had married a British citizen, and had applied in February 1999 to remain on the basis of that marriage. Her application was not determined until May 2002, when it was refused. During that interval, her solicitors had written on numerous occasions to the Secretary of State, requesting a decision. There does not, however, appear to have been the type of letter from the Immigration and Nationality Directorate, asking her not to make such enquiries, as there was in the present case. She then relied upon her Article 8 rights on appeal. The Immigration Appeal Tribunal, as it then was, was very critical of the Home Office delay, describing the inaction as "a public disgrace". It upheld an adjudicator's decision that it would be disproportionate to require her to return to Nigeria, and this court unanimously upheld the IAT's decision when the Secretary of State appealed. It is to be observed that the delay on the part of the Secretary of State in dealing with the application had not meant in that particular case that any children had been born to the applicant and her husband during that time.
30. The only reasoned judgment in Akaeke was again given by Carnwath LJ. He recognised that it would be proportionate in normal circumstances to require the applicant to return to Nigeria, so as to maintain public confidence in the fairness of the system, even though her application for entry was likely ultimately to be successful. But he added at paragraph 31:

"…where the operation of the system had broken down to the extent shown in this case, the tribunal was entitled to take the view that confidence was unlikely to be materially improved by maintenance of a rigid policy of temporary expulsions."

31. It is perhaps important to note that the court in that case did not seek to confine its conclusion to cases where the management of immigration control had become a public disgrace. Those words happen to have been used by the IAT in that case, but it is quite clear from Carnwath LJ's judgment that it is not only in such cases that administrative delay may become a relevant factor capable of making removal disproportionate. Referring back to this court's decision in Senthuran v SSHD [2004] EWCA Civ 950, where the delay had been held to be "unreasonable", Carnwath LJ in Akaeke went on to say this at paragraph 25:

"Once it is accepted that unreasonable delay on the part of the Secretary of State is capable of being a relevant factor, then the weight to be given to it in the particular case was a matter for the Tribunal, subject only to the constraints imposed by judicial review principles." (Emphasis added).

32. I agree. It is a matter for the immigration judge to take any unreasonable delay on the part of the Home Office into account along with all the other relevant factors, including, of course, the need to maintain public confidence in the fairness of the system when a ruling is being made on proportionality. The words "public disgrace" are not to be treated as some legal test. What they reflected in Akaeke was that the degree of administrative delay has to be substantial if it is to affect the outcome, especially if the applicant's private and/or family life have not changed significantly during that passage of time.
33. With those principles in mind, I return to the issue of whether in the present case Immigration Judge Bolger erred in law in his approach. It is quite true, as the AIT pointed out, that he did not refer to Akaeke. However, he did clearly rely upon Collins J's decision in Ajoh. That too was an Article 8 case where the Home Office had taken just under two years to refuse an application to remain on the basis of marriage. In arriving at his decision, Collins J relied on this court's decision in Akaeke, and he quoted expressly Carnwath LJ's conclusion, to which I referred earlier. He gave an accurate summary of the legal principles to be derived from Akaeke.
34. It seems to me that it follows that Immigration Judge Bolger must in arriving at his decision have both been aware of Akaeke and been seeking to apply the approach there laid down because of his own reliance on Ajoh. I am with Miss Smith on that particular part of the argument. Did the Immigration Judge in some way fail in the event to adopt the correct approach in law? The AIT in its reconsideration decision asserts that he did not consider whether "this was in principle an extreme case in terms of Akaeke" (see paragraph 7). True it is that the Immigration Judge did not use that phrase "an extreme case", but he did ask himself, as paragraph 8 of his determination shows, whether it was a "truly exceptional" case. It is difficult, in my view, to see any real distinction between such terminology. What is obvious is that he was accepting that normally the removal of this appellant would be proportionate, and that something unusual or remarkable would be required to take the case out of that category and out of the normal run of decisions.
35. I can see that if one takes paragraph 15 of the Immigration Judge's determination in isolation, the point could be made, as it has been made forcibly by Mr Collins today, that the Immigration Judge was simply following Ajoh without applying his mind to all the facts of the case. However, I do not accept that it is appropriate to isolate that one passage in his determination. If one looks at the determination as a whole, it seems to me that the appropriate weighing up process did take place. If one looks at paragraphs 8 to 16, one sees that the Immigration Judge refers to the need to look at the particular circumstances of the case. He refers to the need for it to be, in his language, an exceptional case, which as I have indicated means that he was accepting that the norm would be to return this applicant, obviously in order to maintain proper immigration control. He refers to the Home Office delay and the extent of the appellant's chasing up of the Home Office, and whether she could be held to be blameworthy for any failure on her part to chase it up more vigorously, and he refers to the birth and conception of her children. Little of that would have been of relevance if he was not in fact carrying out an appropriate weighing up exercise, as is required for any determination of the issue of proportionality. He was not right to describe Ajoh as "binding", but that case gave him the appropriate legal principles to apply, which he did. In any event, this alleged error was not the error of law identified by the AIT.
36. It seems to me that in the end, the only way in which Immigration Judge Bolger's decision might potentially be said to demonstrate an error of law would be if it were perverse, in the sense of being a decision to which no reasonable decision maker could have come. The AIT's references to the factual differences between this case on the one hand, and Akaeke and Ajoh on the other, would be relevant in that context, as Mr Collins has accepted, and certainly much of the AIT's identification of an error of law does appear to consist of a perversity finding on its part.
37. I accept that the length of delay by the Home Office was less in this case than in Akaeke, namely two years and nine months, as compared to three years and three months in the latter. Nonetheless, the AIT was prepared here to acknowledge at paragraph 9 that the Immigration Judge must have found the delay to be "inordinate and inexcusable", since those were the words used in Ajoh which was relied upon by the judge. It was a delay which was capable in his view of being seen as unreasonable. The AIT here emphasised that in Akaeke the appellant had sent letters chasing up the progress of her application. That did not happen here until six months before the eventual refusal. All of that is correct. On the other hand, in the present case, the appellant had been positively discouraged from engaging in such a process of chasing up, having been told not to do so either by telephone or in writing or in person. That does not appear to have been the case in Akaeke, or indeed to the same degree in Ajoh. It is also right, as Mr Collins has emphasised, that the Home Office letter to that effect did say that they expected to decide her application within thirteen weeks, and that does not appear to have been a feature of Akaeke. In that sense, this was a weaker case from the appellant's point of view than Akaeke, although it is right to observe that the letter in the present case does not suggest that she should make enquiries if she did not hear anything at the end of that thirteen week period.
38. But this case was also in another respect a stronger one from the appellant's point of view. In Akaeke, there had been no children of the marriage born during the period of delay. Here, one had been born and another conceived. The Immigration Judge had to take account of that, as he clearly did, since the removal of the appellant would involve her taking her two very small children with her (as they would be two by the time of removal), one about two years old and the other relatively newborn, and quite probably separating them from their father for an uncertain period of time.
39. Inevitably, there were factual differences between this case and Akaeke, some of those pointing in one direction, some in the opposite direction. It is evident that if the AIT members had been making the original decision, they would have held removal to be proportionate. That, however, does not indicate of itself that Immigration Judge Bolger erred in law in his decision, since different decision-makers may come to different conclusions on what is proportionate without any of them erring as a matter of law.
40. In my judgment, the circumstances of this case, especially the administrative delay and the consequences thereof, were capable of being regarded by the Immigration Judge as rendering it disproportionate to send the appellant back to the DRC to obtain entry clearance. I stress that another Immigration Judge could properly have come to a different view, so that it follows that Immigration Judge Bolger's decision on the facts does not create a precedent, but his decision was one properly open to him. That means that his approach was not wrong in law and his conclusion was not perverse. He took account of the relevant considerations. It follows that the AIT was not entitled to find that the Immigration Judge had made an error of law. The necessary consequence of that is that reconsideration should have ceased at that particular stage. For my part, I would allow this appeal.

Lord Justice Wilson:

41. I agree.

Sir Peter Gibson:

42. I also agree.

Order: Appeal allowed