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: TH/04800/2004]

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th March 2007

Lord Justice Pill:

1. This is an appeal by AH against a decision of the Asylum and Immigration Tribunal dated 16 March 2006, whereby they allowed an appeal from the decision of an adjudicator given on 3 September 2004. The adjudicator had allowed an appeal from a decision of the Secretary of State on 14 November 2002 refusing AH permission to remain in the United Kingdom. The adjudicator's decision was based on article 8 of the European Convention on Human Rights. AH, now 48 years old, is a citizen of the Philippines. In September 1989 she married a naturalised British citizen and applied for permission to come to the United Kingdom. Permission was refused. An appeal against that refusal was dismissed on 26 September 1992, nobody having appeared to represent the appellant at the hearing.
2. In 1994 a son was born to the appellant and her husband. Her husband continued to reside in the United Kingdom but visited the Philippines and sent money to his wife. In 1999 the husband became ill and died on 8 November 2000. The appellant entered the United Kingdom two weeks later, with permission to stay until 15 December 2000. Permission to remain was granted outside the rules on compassionate grounds until 14 November 2001. A further application for leave to remain was made on 17 September 2001 and it led to the refusal of 14 November 2002.
3. The adjudicator recorded the appellant's evidence at the hearing before him. Paragraph 10:

"The Appellant adopted her witness statement and confirmed that she had got married on 5 February 1989, applying for permission to come to the United Kingdom a week later. This was refused on the basis that she had entered into a marriage of convenience. An appeal was lodged but it appears that no one appeared on behalf of the Appellant or her late husband, despite having instructed solicitors and the appeal was dismissed. This was in June 1992 and her husband became depressed after this and no further application was made."

Paragraph 14:

"In response to my questions, the Appellant said that she had made no attempt to apply to join her husband in the United Kingdom as he had not been stable. She said that when he had visited them in 1999 he had said he was going to make a fresh application but had not done so before he died."

The adjudicator noted at paragraph 23 that the appellant and her late husband had:

"Made no attempt to remedy their situation. There was nothing to stop a further application being made."

The adjudicator dismissed the appeal under the immigration rules. However, as to article 8 he stated at paragraph 27:

"There are a number of compassionate factors to be taken into account in this case, and I have outlined these above. In addition, I am satisfied that the Appellant derives considerable emotional and financial support from her sister; that she and her son have established a family and private life in the United Kingdom; that her son has to a degree integrated into the community; that he is a British citizen; that the fact the family were not together was to a very great degree due to a now admitted error on the part of the Respondent. I also find that removing PH to the Philippines will have a significant impact on him and that this will affect the Appellant also. It was clear from her emotional state and evidence at the hearing that she effectively lives for her son and wants him to benefit from being educated in the United Kingdom."

Paragraph 28:

"These factors must, however, be set against the need to maintain firm immigration control, and it is only in an exceptional case that this will be outweighed. This case has several unusual facets. First, this is not a case where the parents have entered the United Kingdom unlawfully; second, the child involved was born a British citizen and third, had the Respondent not made an error, the Appellant would have come to the United Kingdom well over ten years ago. Taking all of these factors into account, I find that the Respondent's decision falls outside the range of reasonable decisions open to him and that it amounts to a disproportionate interference with the Appellant's right to respect for her family and private life. I therefore allow the appeal under Section 65 of the 1999 Act."

By way of summary, the adjudicator stated:

"I allow the appeal under the Human Rights Convention."

4. The tribunal could disturb the finding of the adjudicator only if it first found an error of law by the adjudicator. The tribunal considered the adjudicator's reference to the "admitted error" on the part of the respondent. They stated at paragraph 5:

"At paragraph 27 of the determination the Adjudicator says 'the fact the family were not together was to a very great degree due to a now admitted error on the part of the Respondent.' With respect to the Adjudicator that cannot be right. It seems from correspondence that the Appellant's application to join her husband failed because in the opinion of the Entry Clearance Officer her marriage was one of convenience. If that is right the subsequent events, in particular the birth of their child, suggests that that finding was wrong. However if the Respondent was in error, as alleged or at all, it is an error that could have been remedied on appeal. Further there is no reason why the Appellant, even if she had been unsuccessful in her application on a subsequent appeal, could not have made a fresh application to live with her husband in the United Kingdom. If, as seems to be the case on the papers, the marriage was subsisting and the Appellant's husband was in regular work there is every reason to think that the application would have been successful. The fact is that no such application was made. The Adjudicator found that the Appellant chose not to make such an application. We cannot agree that it was in any way the fault of the Respondent that the Appellant and her husband continued to live apart. With respect to the Adjudicator he was simply wrong to make the finding that he did."

5. The tribunal also referred to the three compassionate factors mentioned by the adjudicator. Having referred to the evidence they also found, at paragraph 13:

"However we cannot see how the Adjudicator could have reached properly the conclusion on the material before him that the Appellant's son would not cope reasonably well if he had to return to the land where he was born to live with his mother who had the benefit of a useful income from the United Kingdom."

6. The tribunal referred to the case of Mahmood v The Secretary of State [2001] 1 WLR 840 and cited a passage in the judgment of Lord Phillips MR at paragraph 55. In that paragraph, the Master of the Rolls stated his conclusions as to the approach to be taken where there is a potential conflict between respect for family life and the enforcement of immigration controls:

"(3) Removal or exclusion of one family member from a state where other members of the family are lawfully resident will not necessarily infringe Art 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family."

The test applied by the adjudicator appears at paragraph 24 of his decision:

"The Appellant and her son have now spent nearly four years in the United Kingdom and I am not satisfied that he could adapt again to life in the Philippines without difficulty."

The tribunal also held at paragraph 16 that the adjudicator:

"Did not decide that there were 'truly exceptional circumstances'."

That, of course, was an expression given currency in appeals of this nature by the decision of this court in Huang v The Secretary of  State [2005] EWCA Civ 105. The adjudicator did not have the advantage of that decision, which was pronounced after his adjudication.

7. Having found that there were errors of law by the adjudicator, the tribunal made their own assessment at paragraph 18:

"The Appellant is a mature woman qualified as midwife. She has spent most of her life in the Philippines. If she returned there she would have the purchasing power of a pension from the United Kingdom as well as the ability to earn her own money. We would expect her son to accompany her and we would expect him to be disappointed at leaving the United Kingdom where he appears to be doing well at school. We do not accept that there are any insurmountable obstacles of the kind required by Mahmood to the Appellant's continuing her private and family life in the Philippines and we do not find the circumstances truly exceptional."

The tribunal dismissed what in effect was an appeal against the Secretary of State's refusal, having first found errors of law by the adjudicator, and secondly, making their own assessment of the application of article 8 to the facts of the case.

8. On behalf of the respondent, Miss Grey has accepted the effect of the very recent decision of the House of Lords in Huang [2007] UKHL 11: it is that a remittal to the tribunal of the assessment under article 8 is in this case required. I will refer to that in a little more detail later.
9. On behalf of the appellant, Miss Record submits that no remittal is required in this case. The court should reverse the tribunal's finding that the adjudicator erred in law. The tribunal can only make its own assessment having first found an error of law by the adjudicator. In the absence of such error, the adjudicator's assessment under article 8 stands.
10. Confronted by the principle stated by Lord Phillips in Mahmood, Miss Record submits that, while the adjudicator did not use the expression "insurmountable obstacles", her findings as expressed amounted to such a finding, having regard to the age of the child -- the boy is now 12 years old -- and to the other circumstances. The finding at paragraph 24:

"I am not satisfied that the boy could adapt again to life in the Philippines without difficulty."

amounted to a finding in accordance with the principle stated by Lord Phillips.

11. Miss Record goes on to submit that the adjudicator was entitled to have regard to all the circumstances. He was entitled to find that the reason why the family were not living together in this country was because of an error made by the respondent in 1989 when the first application was made. It is submitted that the adjudicator, unencumbered by the decision of this court in Huang, made the assessment required, which is that stated by Lord Bingham in the case of R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 at paragraph 20. In answering the question whether the interference with family life is proportionate to the legitimate public end sought to be achieved, Lord Bingham stated:

"The answering of question (5), where the question is reached, must always involve the striking of a fair balance between the rights of the individual in the interests of the community, which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal."

12. In my judgment the tribunal in this case were entitled to conclude that there had been errors of law by the adjudicator. First, there was, in my judgment, an error of law in failing to apply the principle stated in Mahmood.
13. As to the alleged error of the Secretary of State, in my judgment the Secretary of State was entitled in 1989 to be sceptical about an application made only a week after marriage to a man settled in the United Kingdom, and so to refuse admission as a spouse. That scepticism has been found by subsequent events to be unjustified. It does not however follow that, when made, the Secretary of State's decision was unreasonable or unlawful. An appeal listed for November 2002 could have been pursued, even though the Human Rights Act 1998 had not come into force. Reliance could have been placed upon the then rules. A fresh application could have been made during the period of years which followed the initial refusal. Given the evidence about the husband's continued visits to the Philippines, the birth to the couple of a son, the sending of money to the Philippines by the late husband, the case would, as the tribunal recognised, have been a strong one.
14. Third, on the alleged error, I agree with the analysis of the tribunal. The decision taken in 1989 was not unreasonable in the circumstances existing at that time. Only subsequent events have demonstrated that this was a genuine marriage, as distinct from a marriage of convenience. The 1989 refusal could not properly be relied on as a significant factor in a decision on article 8 in 2004. To hold that the fact that the family were not together was "to a very great degree" due to "an admitted error of the Secretary of State in 1989" was not a justifiable conclusion. That factor plainly weighed heavily with the adjudicator. His approach failed to have regard to the material evidence and amounted to an error of law.
15. The court has checked with Miss Frey, who appears for the Secretary of State, whether decisions have been made on the Secretary of State's behalf at any stage, which could properly be regarded as erroneous and bear upon the current decision. She has no more material than that which is before the court.
16. Other factors taken into consideration by the adjudicator in paragraph 28 also involved what may amount to errors of law. The fact that the parties had entered the country lawfully in accordance with grants made cannot in my judgment be material upon which a decision in 2004 upon article 8 can in this case properly be based. The test of proportionality was not properly applied by the adjudicator and the case must be remitted to the tribunal for their consideration. As I have said, that has been conceded by Miss Frey following the recent decision of the House of Lords.
17. The tribunal followed the approach indicated in this court in Huang. That approach has been modified by the House of Lords in its recent decision. The appeal committee of the House stated at paragraph 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. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar above. He was there expressing an expectation shared with the Immigration Appeal Tribunal that the number of claims not covered by the rules of supplementary directions entitled to succeed under article 8 would be a very small minority. That is still his expectation but he was not purporting to lay down a legal test."

18. A further assessment of the case by a fact finding tribunal is, in my judgment, required. I add that further guidance as to the role of the appeal process and the principle of proportionality is also given by their Lordships but it is not necessary to refer further to their decision for present purposes.
19. In my judgment the Secretary of State is correct to have made the concession. The expression "truly exceptional" is mentioned no fewer than four times in the determination of the tribunal and it is plainly the test which the tribunal had in mind. Of course I give no indication and express no view as to the manner in which the article 8 balance should be struck upon a remittal. The remittal will be such as will entitle the tribunal, if they see fit, to permit the calling of further evidence. I would remit the case to a differently constituted tribunal to establish the relevant facts and make the required article 8 assessment.
20. To that extent I would allow this appeal.

Lord Justice Keene:

21. I agree

Lord Justice Moore-Bick:

22. I also agree.

Order: Appeal allowed. Appeal to be remitted to a differently constituted Asylum and Immigration Tribunal. Respondent to pay the Appellant's costs with the exception of the costs of today to be assessed if not agreed.