Case No: C5/2006/1978
Neutral Citation Number: [2007] EWCA Civ 455
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. HX/22972/2003]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 25th April 2007
Before:

LORD JUSTICE WALLER
 LORD JUSTICE BUXTON
and
LORD JUSTICE LLOYD
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Between:

	MT (ZIMBABWE)	
Appellant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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MR D BAZINI (instructed by Immigration Advisory Service) appeared on behalf of the Appellant.

MR N SHELDON (instructed by Treasury Solicitors) appeared on behalf of the Defendant.

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Judgment
Lord Justice Buxton:

1.	The appellant, Ms MT, was born on 8 March 1981.  She arrived in the United Kingdom in September 2002 and claimed asylum on arrival.  That was four-and-a-half years ago.  Since that date she has been continuously engaged in the asylum and immigration processes of this country.  There have, in fact, been five tribunal hearings of one sort or another in respect of her case.  I do not need to give any further account of them.  They are set out in some detail in paragraphs 4-11 of the determination of the Asylum and Immigration Tribunal under appeal in this case.

2.	We are concerned with a decision of an adjudicator, again as long ago as 13 September 2004.  Claims were made on Ms MT’s behalf, both for asylum and under the European Convention on Human Rights.  The adjudicator dismissed the asylum appeal and the human rights appeal so far as they sought to engage articles 2 and 3, but she allowed the human rights appeal under article 8 of the convention.  That was subject to an appeal by the Secretary of State to the Asylum and Immigration Tribunal, which was heard on 9 May 2006.  The tribunal upheld the adjudicator on the asylum claim but reversed her on article 8 and therefore dismissed the appeal on human rights grounds.  

3.	Ms MT appealed both parts of the AIT’s decision.  She was refused permission to appeal to this court on the asylum claim and that is no longer in issue, but she was granted permission on the article 8 point by Sedley LJ, who in granting permission said this: 

“It is arguable that the adjudicator’s article 8 decision was legally sound and factually tenable and so should have been upheld by the AIT.  While such claims are never easy, the finding of family life was arguably sound, and the finding that removal would be disproportionate - a mixed question of law and fact - not demonstrably erroneous or intrinsically perverse.”

4.	The background to the case was that in Zimbabwe Ms MT’s family had been involved with the Movement for Democratic Change, an opposition group to the then ruling regime, and in that connection the adjudicator found that she might have suffered, or at least witnessed, violence on the part of the authorities.  Her mother died in 1996 and since the death of her mother she had lived with her cousin, a Mr G.  He was and was accepted to be an MDC activist and Ms MT’s involvement and awareness of the persecution directed at the MDC came through her family relationship and indeed her common residence with Mr G.  He has come to this country and has refugee status here, and when Ms MT came here, she continued to live with him here with his family (his wife and young children).  

5.	The adjudicator’s conclusion as to Ms MT’s asylum claim bears setting out.  Taken from paragraph 43 of her determination, she said this:

“… I am not satisfied that the Appellant faces a well founded fear of persecution for reasoned political opinion.  The option of internal flight is open to her should she feel she has concerns about return to the same locality.  I accept that as a single young woman she may encounter difficulties but there does appear to be the opportunity with Mr G’s sister or brother.  I do not consider that it would be unduly harsh to expect her to live elsewhere in Zimbabwe.”

6.	The adjudicator then went on to consider the article 8 application and she did that in paragraphs 45-50 of her determination:

“The Appellant has lived with her cousin since 1996 when she was fourteen years old.  Although she has other brothers and sisters she has now lost contact with them and has not seen them since 2000.  Given that she has lived with the family for eight years I am satisfied that she has established a family life with them.

“I have considered whether this family life is one which can fall within the ambit of Article 8 given that the Appellant is now an adult and the relationship is that of cousins.  While it is generally the case that relationships between adult relatives would not necessarily fall within the ambit of Article 8 it is a question of fact in each case whether there are strong  enough family ties and more than the normal emotional bonds.  In considering this I have taken account of the fact the Appellant has lived with her cousin since her mother dies in 1996when she was fourteen years old. She sees her cousin as a father figure and she has been part of the lives of his children since they were babies. The relationship between the Appellant and her cousin is more akin to father and daughter rather than cousins. The Appellant and her cousin have given evidence that in their culture the girl remains in the family home until she is married. I am satisfied that there exist strong family ties between the Appellant and her cousin and his family. I find that she is more than normally emotionally dependent on him and his family as they are in fact the only family she now has and because of the experiences in Zimbabwe.  I am satisfied that the relationship which exists between them is sufficiently strong to engage Article 8.

“Therefore if she were returned to Zimbabwe this family life would be interfered with but such interference is set out in the law and is in pursuance of the legitimate aim of maintaining fair and firm immigration control.

“In considering whether such interference is proportionate I have taken account of the following factors. The Appellant has lived with her cousin for eight years and is an established member of his family. If she were returned to Zimbabwe there would be an insurmountable obstacle to her continuing this family life there. Mr G has been granted refugee status on the basis of the risk of persecution; he is not able at this time to return there with the Appellant and the rest of his family.

“I have also considered that it may be open to the Appellant to return to Zimbabwe and to maintain her contact through visits, telephone calls and correspondence but given the nature of the family life she has with her cousin, and his family I do not find that this would enable her to maintain this family life.

“I have taken account of the legitimate aim of immigration control and the fact that generally this would take precedence but I consider in the case that the balance just falls in favour of the Appellant.  I find that her family life with her cousin and his family would be disproportionately interfered with by her return to Zimbabwe.”

7.	The Asylum and Immigration Tribunal gave its reasons for reversing that conclusion in paragraphs 23-29 of its determination:

“The appellant is now 25 years of age. When she arrived in the UK she was 22 years. She came to the UK with her cousin Mr G. Both the appellant and her cousin have submitted witness statements and other evidence in support of the claim. It appears that the appellant has lived with her cousin since 1996 when she was 14 years old. She appears to have lost contact with her other brothers and sisters. The adjudicator was satisfied that the appellant had established a family life with her cousin, his wife and her children.

“It appears the appellant treats her cousin as a father figure. She has helped him and his wife to raise their children. She apparently relies on Mr G for emotional support, maintenance and accommodation. We accept as previous tribunals have accepted ' that Mr G has become a type of stepfather to the appellant and assumed the role of father to her. 

“The adjudicator considered that a return to Zimbabwe would interfere with the appellant's family life with her cousin and family. The cousin has been granted refugee status on the basis of risk of persecution. He is not able to return with the appellant and the rest of his family to Zimbabwe. The adjudicator concluded that visits, telephone calls and correspondence with her cousin would not enable her to maintain family life. In taking account of immigration control, the adjudicator found that the appellant's "family life with her cousin and his family would be disproportionately interfered with by her return to Zimbabwe".

“The respondent argued, when applying for permission to appeal to the IAT that the adjudicator had erred in law in her approach to the appellant's article 8 rights. The adjudicator found that the appellant "is more than normally emotionally dependent on (her cousin) and his family as they are in fact the only family she now has and because of the experience in Zimbabwe". In his application for permission to appeal, the respondent argued that the adjudicator had failed to give reasons as to how this relationship is "beyond what would normally be accepted between adult family members and an adult child and parent". This is the test which needs to be met in accordance with N (Sri Lanka) [2004] UKAIT 0069. The adjudicator gave no adequate reasons for this finding. We can see nothing in the evidence which takes the admittedly close relationship between the appellant and her cousin's family beyond the normal family ties between an adult child and her family. In our judgment, the appellant has failed to establish that her right to "family life" is engaged.

“There is no question and it has not been argued that the appellant is entitled to remain in this country under any provision of the Immigration Rules. She of course has the right to respect for her private life. But to interfere with that right as would happen if she were to return to Zimbabwe would be proportional as she failed to meet the Immigration Rules unless in some way her circumstances might be described as exceptional.

“The test applying in these circumstances was made clear in Huang I [2005] EWCA Civ 105. The appellant's circumstances would have to be truly exceptional to find a reason why the Immigration Rules should be overridden.

“Whether we restrict ourselves to the appellant's private life or assume she has existing family life, in the Tribunal's view, this is not such a case. The appellant does have relations in Zimbabwe. She could remain in contact with her family here by correspondence, letters and telephone. Subject to satisfying the grounds for entry clearance as a visitor she could visit the UK to see them.  We consider the adjudicator made an error of law in reaching the conclusion she did. The evidence does not show a dependency beyond the normal emotional ties in a family between an adult child and his or her parent or guardian.”

8.	In order to reverse the adjudicator, the Asylum and Immigration Tribunal had to find that she had erred as a matter of law.  Its reasons for so finding can be stated in two stages.  One, to come within article 8 at all -- that is to say, for article 8 to be “engaged” -- the applicant had to show that her relationship with her cousin and his family is: 

“Beyond what would normally be accepted between adult family members in an adult child and parent”.  

9.	That is the formulation to be found in the Asylum and Immigration Tribunal’s own decision in M (Sri Lanka), which applied the long-standing human rights commission case of Advic v The United Kingdom decided as long ago, (in human rights authority terms), as 6 September 1995.  The adjudicator did make such a finding, in paragraph 46 of her determination already quoted, but the AIT considered 1) that there had been no adequate reasons for that finding and 2) that there was no sufficient evidence to support it.  That is what the AIT said in paragraph 27 of its determination.

10.	Secondly, the AIT said that therefore the applicant had to rely on interference with her private and not her family life, but that any interference with private life -- and accordingly interference with family life if that indeed had been found to exist in article 8 terms -- would not be disproportionate in view of the need to apply immigration rules.  That is a summary of what is said in paragraphs 27-28 of the AIT’s determination, to which I shall have to return.

11.	I deal with those two objections in turn which, it will be seen, mirror the structure of article 8, divided as it is between article 8.1 and article 8.2.  As to the first objection, the Strasbourg authority relied on by the AIT and before us by the Secretary of State, whilst stressing the need for an element of dependency over and above the normal between that of a parent or parent figure and adult child, also stresses that everything depends on the circumstances of each case.  That is made plain in Advic, from which I will quote one paragraph at the top of page 4 of the determination:

“Athough this will depend on the circumstance of each particular case, the Commission has already considered that the protection of Article 8 (Art. 8) did not cover links between adult brothers who had been living apart for a long period of time and who were not dependant on each other.  Moreover, the relationship between a parent and an adult child would not necessarily acquire the protection of Article 8 (Art. 8) of the Convention without evidence of further elements of dependency, involving more than the normal, emotional ties.”

12.	Provided, therefore, that the adjudicator recognises the right standard, as I would hold the adjudicator did in this case, the nature of the relationship should be very much a matter for her judgement -- essentially, as the adjudicator herself said, a question of fact, bearing in mind in particular that she heard live evidence, cross-examined, not only from the applicant but also from Mr G.  The AIT recognised that truth by holding that it could only interfere if indeed there were errors of law in the adjudicator’s determination, the errors which it found here being firstly that there is no evidence and, secondly, no reasoning in support of the adjudicator’s conclusion.  I well accept that other adjudicators might have taken a different view of this case and I also accept that it would have been possible, though I would not think obligatory, for this adjudicator to have reasoned out her conclusion more fully.  But I cannot agree that that conclusion and the way that she put it was so unfounded as not to be available to her at all.  

13.	She was entitled to point, as she did, to the length of Ms M T’s ties with her cousin, dating back to when she became an orphan at the age of 14; the long integration in his family from an early and vulnerable age; the cultural norm in the society that she came from for young adult females to remain in the family home; and, on any view, the shared experiences in Zimbabwe to which I have made some reference, which could reasonably be expected to lead to a closer bonding process than normal between adults and also to the very thing that Advic referred to and which the adjudicator found; “more than the normal, emotional ties.”

14.	In my judgement, therefore, the AIT should not have set this part of the adjudicator’s conclusion aside.  She did not make the errors of law that they relied on.  That makes it necessary to address the second part of the AIT’s finding, that even if Ms M T had established family life in article 8 terms the adjudicator was wrong in law to find that that interference with family life would be disproportionate, even though made in the interests of immigration control.  The adjudicator recognised the need to deal with that issue of proportionality and she acknowledged that in her paragraph 47, already set out but I will repeat it because it is important:

“Therefore if she were returned to Zimbabwe this family life would be interfered with.  Such interference is set out in the law and is in pursuance of the legitimate aim of maintaining fair and firm immigration control.”

She then set out the factors already indicated that influenced her judgement and concluded at paragraph 50:

“I have taken account of the legitimate aim of immigration control and the fact that generally this would take precedence but I consider in this case the balance just falls in favour of the Appellant.  I find that her family life with her cousin and his family would be disproportionately interfered with by her return to Zimbabwe.”

15.	There is a certain amount of law that affects this issue and the way it is dealt with, though it is right to say that all the authorities that I shall now refer to were in fact decided after the adjudicator made her determination in 2004. Therefore it is scarcely surprising that she did not refer to them.

16.	The proper role of the adjudicator was addressed by this court in Huang [2005] EWCA Civ 105.  The main point, which is not in issue in the case before us, was that the article 8.2 balance in a case such as the present, where the applicant has no right to remain under the immigration rules, is to be struck by the adjudicator using her own judgement.  She is not confined to deciding whether the Secretary of State had acted reasonably in his own decision in striking the balance.  The court, however, said that the approach that the adjudicator should apply is whether the case was an exceptional one.  That statement, quite briefly put, is to be found in paragraph 56 of the judgment of Laws LJ when he said this:

“In our judgment his duty, when faced with an Article 8 case where the would-be immigrant has no claim under the Rules, is and is only to see whether an exceptional case has been made out such that the requirement of proportionality requires a departure from the relevant Rule in the particular circumstances.”

17.	That had as its inspiration, or at least marched with, a passage in the speeches in the House of Lords in Razgar v The Home Secretary [2004] 2 AC 368, where at paragraph 20 Lord Bingham of Cornhill, referring to the question of proportionality and whether interference with family life would be proportionate to the legitimate public end, that is to say of immigration control, said this:

“The answering of [that question] must always involve the striking of a fair balance between the rights of the individual and 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.”

18.	Lord Bingham then referred to the case in the Immigration Appeal Tribunal of Kacaj, in which that tribunal had said:

“Legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate.”

Lord Bingham continued in paragraph 20 of Razgar,:

“In the present case the Court of Appeal had no doubt…that this overstated the position.  I respectfully consider the element of overstatement to be small.  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.”

19.	When Huang reached the House of Lords this court was upheld on the main issues of the relevance of immigration control and of who -- the adjudicator rather than the Secretary of State -- had to strike the balance, but the committee of the House of Lords who decided that appeal also made observations about what it thought to be a misunderstanding of its observations in paragraph 20 of Razgar just cited.  The appellate committee said this in paragraph 20 of the House of Lords’ judgment:

“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 to 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, paragraph 20.  He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under article 8 would be a very small minority.  That is still his expectation.  But he is not purporting to lay down a legal test.”

20.	How does this illuminate our case, bearing in mind, as I say, that none of that authority was available to the adjudicator, and Huang in the House of Lords was not available to the Asylum and Immigration Tribunal?  I have already set out paragraphs 27 to 29 of the Asylum and Immigration Tribunal’s determination where they address the adjudicator’s determination on proportionality.  It is very difficult to think anything other than that in paragraph 28 of that determination the Asylum and Immigration Tribunal was applying a legal test of exceptionality, the very thing that the House of Lords in Huang said should not be done.  

21.	Mr Sheldon for the Secretary of State, in the course of his very fair submissions, in effect accepted that the AIT had been in error in that approach.  He however argued that even if the formulation was inept in the light of the subsequent decision of the House of Lords in Huang, the criticism in general terms by the AIT of the adjudicator was well in line with the assumption of the House of Lords in Huang and Razgar: that the interests of immigration control are so important that only in very rare cases will the interests of the applicant’s family life prevail over them.  This was not a rare case, but an orthodox case of an adult child still living with her birth family or with a proxy for that family.  The adjudicator’s exercise of judgement simply was not open to her.  

22.	This question, in my judgement, is more difficult than that which we had to address under the first of the two heads, because however the matter is expressed there is no doubt that the interests of family life will not usually prevail over the interests of immigration control.  The difficulty is in expressing that general understanding in any sort of guiding rule or principle.  To speak simply of “exceptional” or “rare” cases does nothing to explain what principle should be applied in identifying such cases; and that, it seems to me with respect; is what the House of Lords warned of in Huang.  In our case the adjudicator, while admittedly only reasoning out the issue in somewhat thin terms, did recognise the main factor in play, that generally the demands of immigration control must prevail.  That is what she said in paragraph 50 of her determination.

23.	In addressing that issue, Mr Bazini for the appellant helpfully showed us the case of Mukarkar v the Secretary of State [2006] EWCA Civ 1045.  This case predated the House of Lords in Huang and therefore addressed itself to the ruling of this court in that case on what was thought to be the import of paragraph 20 of Razgar.  However, with respect, Carnwath LJ, who gave the leading judgment, agreed by both other members of the court, identified the sort of problem that faces the court in this case even without the benefit of the guidance given by the House of Lords in Huang.  I would venture to cite two paragraphs of that judgment.  In paragraph 11 Carnwath LJ said:

“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).  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.”

Later in his judgment, at paragraph 40 having, as I have said, pointed out that normally the issue will not be one of law, Carnwath LJ said this:

“Factual judgments of this kind are often not easy, but they are not made easier or better by excessively legal or linguistic analysis.  It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case.  [I omit some words]  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.  Nor does it create any precedent, so as to limit the Secretary of State’s right to argue for a more restrictive approach on a similar case in the future.  However, on the facts of the particular case, the decision of a specialist tribunal should be respected.”

24.	That, in my respectful judgement, is the approach that we should take to the determination of the adjudicator in this case.  She approached her task without the benefit of any of this authority, as one of her general judgement rather than one to be guided by stipulated rules.  That is in line with paragraph 20 of Huang; that is in line with Carnwath LJ’s guidance in Mukarkar.  That AIT did not approach the matter in that way.  As we have seen, it based its conclusion, particularly in paragraph 28 of its judgment, on what can now be seen to be a misunderstanding of Razgar, guided as we now are by the judgment in the House of Lords in Huang.  Mr Sheldon agreed that the court, having reached that stage, must re-take the determination originally made by the AIT as to the sustainability of the adjudicator’s determination.

25.	We have therefore to consider whether the adjudicator’s approach placed insufficient weight on the importance of immigration control or too much weight on the nature of Ms M T’s family life for it not to have been open to her as a matter of law.  We have to do that respecting her judgement and assessment in the light of the guidance given by this court in Mukarkar.  I myself would think that her treatment was arguably generous to Ms M T and that her explanation came fairly close to the borderline of insufficiency but, that said, I am far from persuaded that as a matter of law it was not open to this adjudicator to take the view that she did.  She was well aware of what her task was and her judgement in performing that task must be respected unless it is plainly not open to her.  

26.	I should perhaps emphasise, because this was a matter upon which Mr Sheldon justifiably placed some weight, that it is clear from a fair reading of the adjudicator’s determination that an important element in that balance was the view that she had formed of the nature and intensity of the applicant’s family life.  A view that I have already indicated and -- differing in this respect from the AIT -- was open to her in law.  In particular she clearly was influenced by the fact that she set out in paragraph 46 of her determination that, because of the shared experiences in Zimbabwe and the recovery from those experiences by mutual life together continuing in the United Kingdom, Ms M T was more than normally emotionally dependant on Mr G and his family.  That was a factor that she was entitled to rely on as an important piece to place in the balance.  

27.	That went beyond simply a finding that article 8 was engaged in the first place, and I therefore cannot agree with Mr Sheldon’s criticism that the adjudicator simply found that there would be disproportionate interference because there would be interference at all.  This was to some extent an unusual case with an unusual background and the adjudicator was entitled to treat it as she did.  

28.	In particular, also, I cannot with respect agree with what is said in the last sentence of paragraph 29 of the AIT’s determination: 

“The evidence does not show a dependency beyond the normal emotional ties in a family between an adult child and his or her parent or guardian.  The evidence did show that and the adjudicator found that there was a dependency beyond the normal emotional ties, and was entitled to do so.  That, was sufficient in this case to uphold her determination, granted the respect that has to be accorded to the view of the immigration appellate authority, in this case the first appellate authority, the adjudicator, and granted as I have endeavoured to explain that the matter cannot be regulated by strict legal rules”.

29.	For those reasons, therefore, I would allow this appeal and restore the determination of the adjudicator.

Lord Justice Waller:

30.	I agree.

Lord Justice Lloyd:

31.	I also agree.

Order:  Appeal allowed.