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
AA/01379/2005

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2007

Lord Justice Maurice Kay :

1. This case comes before the court as a proposed appeal against a decision of the Asylum and Immigration Tribunal (AIT) following a hearing on 11 November 2005. It concerns Article 8 of the European Convention on Human Rights and Fundamental Freedoms. It is one of a number of cases in which this court has had to consider the decision of the House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11, that decision having come after the decision on the present case in the AIT but before the hearing in this court. The decision of the House of Lords has given rise to some debate. In this judgment, however, I do not propose to add to that debate. I shall adopt what was said by Lord Justice Sedley, giving the judgment of the court of which I was a member, in AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801, which is being handed down at about the same time as this judgment and which in turn adopts and follows MT (Zimbabwe) [2007] EWCA Civ 455, upon which we heard submissions in the present case. Accordingly, this judgment will be something of an exercise in judicial minimalism.
2. JN is a citizen of Uganda who is now aged 44. She arrived in the United Kingdom on 12 October 1993 and entered lawfully pursuant to a 6 month visa. Two weeks later, on 26 October 1993, she applied for asylum. The factual basis of her asylum claim is not disputed. It was based on the murder of her father, a member of the Uganda Peoples' Congress, who was killed on his way to work in December 1992 having previously been tortured and detained. Her brother, who was also a UPC member, was shot in Kenya. By reference to these traumatic events she asserted a continuing and well-founded fear of persecution by reason of her family connection. On 24 May 1995, the application for asylum was refused by the Secretary of State. JN appealed but her appeal was dismissed by an adjudicator on 30 March 1998. He accepted her factual account but concluded that she would not face a risk of persecution if she were to be returned to Uganda. However, he added:

"… given my findings on credibility and the misfortunes which have befallen her father and brother, this seems to me to be a case in which the Secretary of State may wish to consider exceptionally granting leave to remain and I so recommend."

3. That recommendation was considered by the Secretary of State but on 18 May 1998 he declined to accept it. His decision was not challenged in the Administrative Court. Moreover, although JN applied for leave to appeal to the Immigration Appeal Tribunal against the decision of the Adjudicator, leave was refused on 30 April 1998 and that was not further challenged. Accordingly, by May 1998 all proceedings arising out of the initial application for asylum had been concluded.
4. On 20 August 1998 JN made a second application for asylum in which she referred to acute mental and physical suffering which would ensue if she were to be removed to Uganda. Of course, at this stage the Human Rights Act 1998 had still not come into force. She could not yet make a freestanding human rights claim. As an asylum claim, the application of 20 August 1998 had no real prospect of success. Nevertheless, it was not considered promptly by the Secretary of State. It was only on 19 April 2005, almost seven years after it had been made, that the Secretary of State refused it and ordered removal. JN then appealed to an Immigration Judge who, inevitably, dismissed the appeal on asylum grounds. However, now that the Human Rights Act was in force, she considered a human rights claim by reference to Article 8 and allowed the appeal. The basis of the Article 8 claim was that JN had been allowed to work in this country since 1993. She had led a decent and industrious life and, at the time of the hearing before the Immigration Judge, was working as an accounts officer in the Homeless Persons Unit of the London Borough of Ealing. She had started work with the Council in 2000 and had been promoted several times. At weekends she carried out voluntary work in a women's prison. She was deeply involved in her church and with the Runnymede Christian Fellowship. She provided counselling support to other members of the church. She had purchased her own home with the assistance of a mortgage. Although she had had a serious relationship with a man, this had come to an end because he was concerned that, if they were to marry, she may nevertheless be returned to Uganda. Her account of her church and community activities was confirmed in evidence by a minister of the church. Although JN had had health problems, including depression, the medical evidence was that she was currently symptom-free.
5. The favourable decision on her human rights claim was based on the "private life" aspect of Article 8. The Immigration Judge considered that Article 8 was engaged and that the real issue was proportionality. She observed that JN had become an overstayer subject to removal in April 1998 and that, although the Secretary of State had taken an unreasonable time to deal with the application of August 1998, that in itself would not make it disproportionate to remove her. The basis upon which the Immigration Judge found a lack of proportionality is to be found in this passage:

"I have also considered the appellant's reaction to the making of the recommendation by the Adjudicator that she be granted leave to remain. This must have given her an indication that it was appropriate to pursue the course she did. She endeavoured to obtain a decision to regularise her stay as shown in the refusal letter where the respondent acknowledged that letters of complaint had been made for the lack of response. I have the benefit of a number of references and the evidence to me at the hearing of the [minister]. The character they portray is inconsistent with a person that deliberately overstays and manipulates the system. I am aware following the case of Huang that in order to succeed outside the Rules under Article 8, the circumstances must be truly exceptional. I find that in this case they are for the reason that having received a recommendation which in essence was unenforceable she was subjected to unreasonable delay by the respondent for which he now attempts to blame her. She has suffered the loss of her father and brother in horrific circumstances, the loss of her young child to malaria after her mother's journey out of Uganda, but despite these contra-indications she has flourished through her own will and against the background of an extremely supportive group of friends. Interference with her private life in those circumstances I find disproportionate and that the maintenance of a firm and fair immigration policy does not outweigh the appellant's right to a private life free from interference."

6. The reference in that passage to the case of Huang was a reference to the decision of the Court of Appeal [2005] EWCA Civ 105, [2006] QB 1 in which Laws LJ had referred (at paragraph 59) to the need of an applicant to establish that his case was "so exceptional" or "truly exceptional" to justify departure from the Immigration Rules. Laws LJ was basing himself on the decision of the House of Lords in Razgar [2004] 2 AC 368, and particularly on paragraph 20 of the speech of Lord Bingham of Cornhill where he stated:

"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."

7. In the present case, when the Immigration Judge interpreted the authorities as equating the test for proportionality under Article 8 with the criterion of "truly exceptional" she was doing no more and no less than most Immigration Judges were doing at that time. This remained the position until the subject was revisited and clarified by the House of Lords in Huang.
8. The Secretary of State sought a reconsideration of the decision of the Immigration Judge. He could only sustain such an application if a material error of law could be identified in the determination of the Immigration Judge. Upon the reconsideration, the AIT identified two errors of law in the determination of the Immigration Judge. First, she had erred in relation to the recommendation of the Adjudicator. The AIT observed:

"The Secretary of State dealt with the recommendation provided by the Adjudicator swiftly. Whatever expectation may have been raised … , that expectation was conclusively dispelled by the clear decision of the Secretary of State in his letter of 18 May 1998 to the effect that the recommendation would not be followed and that the appellant should leave. It is therefore simply unsustainable for the Immigration Judge to have relied upon any residual expectation once the Secretary of State had notified the appellant that he would not be following the recommendation."

9. Secondly, the AIT was critical of the reasoning of the Immigration Judge in relation to the "truly exceptional" criterion. The AIT said:

"We do not consider that it is sufficient merely for the judge to recite the history and then conclude that it would be disproportionate to remove the appellant without identifying the circumstances that he finds to be exceptional. In particular, a distinction must be drawn between factors that can properly be described as unique and those that are exceptional. The circumstances of each asylum claim are likely to be unique in that every claim is different from another. That does not, in our view, amount to each claim being exceptional. Accordingly, we consider that the Immigration Judge made a further error in failing to identify those facts that were so exceptional to merit a departure from the Rules. The fact that the appellant has integrated herself within the community does not, by itself, amount to an exceptional circumstance."

10. Having identified what it considered to be two material errors of law, the AIT proceeded to reconsider the matter itself applying the same "truly exceptional" criterion. It concluded that JN had suffered no prejudice in the delay in dealing with the application of August 1998. Having rejected the recommendation of the Adjudicator, the Secretary of State had told her that she should depart. The asylum application of August 1998 was "almost entirely devoid of merit". Whilst JN had lived openly and decently and had attempted to persuade the Secretary of State to reach an earlier decision, the fact remained that she had been present in this country for twelve years, of which only the first six months had amounted to lawful residence. This was not a case in which delay had deprived her of a procedural advantage. At no stage had she been able to rely on the Immigration Rules. Whilst she had developed a social and private life in this country, there are no family ties here. She is a young woman able to readjust to life in Uganda. She was purchasing a property here but she had had to live somewhere and it was likely that she would be able to reap the benefit of the increase in house prices were she to sell the property on return to Uganda. She had benefited from her employment opportunities here but there was no reason why her activities within the community could not find an outlet in Uganda. For all these reasons she had failed to establish that her case was "truly exceptional", given her inability to comply with the requirements of the Immigration Rules. The AIT refused permission to appeal to this court.
11. It is appropriate that we grant her permission to appeal and an extension of time to enable her to do so. I now turn to the issues raised on the appeal.

Issue 1: did the Immigration Judge fall into material legal error?

12. The first submission of Miss Mallick on behalf of JN is that the AIT was wrong in law to hold that the Immigration Judge had fallen into material legal error. If the decision of the Immigration Judge was free of such error, it must stand.
13. The first legal error referred to by the AIT relates to the treatment by the Immigration Judge of the recommendation of the Adjudicator. The Immigration Judge considered that the recommendation "must have given her an indication that it was appropriate to pursue the course she did". She then found the circumstances to be "truly exceptional" because "having received a recommendation which in essence was unenforceable she was subjected to unreasonable delay by the respondent for which he now attempts to blame her". The fact is that there was no unreasonable delay in considering the recommendation. A reasoned rejection of it followed within a few weeks. Moreover, that reasoned rejection was never subjected to legal challenge. Nor could it have been with any prospect of success. As a foundation upon which to construct any kind of expectation (and legitimate expectation in the strict sense is not argued), the recommendation lapsed with its rejection. In my judgment, neither the subsequent activities of JN nor the lamentable delay on the part of the Secretary of State can rationally be said to have been caused by the recommendation or the response of the Secretary of State to it. Those matters played a significant part in the reasoning of the Immigration Judge. I consider that to have been a significant legal error. That in itself justified the reconsideration.
14. I find the second matter referred to by the AIT to be less convincing. In applying what she considered to be the correct legal test at the time, the "truly exceptional" test, the Immigration Judge set out matters which she considered satisfied that test. One was the recommendation and her misunderstanding of the response to it. The second was the combination of factors beginning with the "horrific circumstances" that had arisen in Uganda and ending with the private life which JN has commendably established in this country. Although the reasoning on these matters could have been more extensive and more rigorous, I would hesitate to say that it was legally erroneous. The criticisms of it by the AIT seem somewhat harsh and semantic. Thus, it seems to me that it is the way in which her approach to the recommendation and its consequences permeated the decision of the Immigration Judge on proportionality that rendered it legally erroneous. In a sense, however, all this is academic in view of the misunderstanding about Huang, to which I now turn.

Issue 2: the Huang point

15. If the true test were one of exceptionality, it would be impossible to say that the AIT fell into legal error when applying that test. However, as I have indicated, the AIT, falling into the same common error as the Immigration Judge, was wrong to treat exceptionality as the test. Since the decision of the AIT, the matter has been clarified by the House of Lords in Huang. The relevant passage is in paragraph 20 of the Opinion of the Appellate Committee which is in the following terms:

"In an Article 8 case where this question (ie proportionality) 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 … 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 was not purporting to lay down a legal test."

16. Although expressed by reference to family life, that reasoning plainly applies equally to private life cases.
17. Paragraph 20 of Huang has generated much debate in this case and beyond it. As I indicated at the outset of this judgment, I do not propose to add to that debate. The matter has been fully considered elsewhere and I am content to proceed on the basis that the correct understanding of paragraph 20 is that expounded by Sedley LJ giving the judgment of the court in AG (Eritrea). On any basis, in this as in numerous other cases, the AIT has fallen into legal error by adopting the "truly exceptional" test. The question for us is whether the error is material in the circumstances of this case. As Sedley LJ observed in AG (Eritrea) there will be many cases in which it can properly be said that on no view of the facts could removal be disproportionate. In other words, even where the wrong test has been applied, the same outcome would have been inevitable if the right test had been applied. The question for us is to whether this is such a case. In my judgment it is not. Whilst I am not to be taken as stating or implying a view as to the ultimate merits, it seems to me that there is sufficient in the circumstances of this case for it to call for proper reconsideration by the AIT applying the correct test. On this basis, I would allow the appeal and remit the matter to the AIT for the matter to be reconsidered in full by reference to the Huang test as expounded in the House of Lords and explained in AG (Eritrea).
18. I add this footnote. The delay on the part of the Home Secretary in this case, which I have already described as lamentable, is undoubtedly an aspect that will have to be reconsidered. When the AIT performs that task, it will have the benefit of the decision of this court in HB (Ethiopia) v Secretary of State for the Home Department [2006] EWCA Civ 1713. It does not seem to me that that decision creates any new law so far as the present case is concerned but it provides the most useful guidance.

Conclusion

19. It follows from what I have said that, in my judgment, the Immigration Judge was legally erroneous in her consideration of the recommendation of the Adjudicator and its aftermath. Consequently, the AIT was correct to embark on reconsideration. However, by reason of the decision of the House of Lords in Huang, the determination of the AIT is itself legally flawed. I would allow the appeal and remit the matter to the AIT, differently constituted, for a full reconsideration as described.

Lord Justice Wilson:

20. I agree.

Lord Justice Waller:

21. I also agree.