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 & IMMIGRATION TRIBUNAL
(AIT No. IM/12825/2006)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 August 2007

Lord Justice Sedley:

1. The applicant, a national of Ghana represented today by Mr Turner, has been refused leave to remain in the United Kingdom. Although she first came to this country in 1986, her effective application for leave to remain was made on 19 January 2006 in reliance on policy DP 69/99.
2. This application was refused in March 2006 and in June 2006 the appeal was dismissed by Immigration Judge Beg. Burton J, however, ordered reconsideration because it was unclear whether the Immigration Judge had considered the relevance of DP 69/99, and the appeal therefore came back before Senior Immigration Judge Warr and Immigration Judge Brown in February 2007. It is against their decision that the applicant now seeks permission to appeal.
3. I say at once that this is an impressively and carefully reasoned decision. If there is a difficulty with it, it is that it was decided a month before the House of Lords, in Huang, corrected the erroneous view upon which tribunals had for some time been working: that something truly exceptional was required if a case was to succeed under Article 8. Accordingly the AIT, citing Huang in this court as authority for a test of exceptionality, said this at paragraphs 56 to 57 of the decision at:

"56 […] we are not satisfied that the circumstances are truly exceptional - see Huang v Secretary of State [2005] EWCA Civ 105. We consider the observations of the tribunal in MD at paragraph 22 to be apposite:

'We bear in mind that it is unfair to people who do not remain in the United Kingdom without permission, even when that is what they would like to do to see people who chose to remain without permission prospering. Immigration control raises policy considerations that go beyond any particular claimant.'

57. In our view, the fact that the appellant may suffer inconvenience and disruption to her family life and the fact that this disruption may impinge upon others including her children, has to be weighed against legitimate policy considerations arising from her protracted breaches of immigration control.

58. We do not consider that the Secretary of State's decision was wrong in law or that the appellant can benefit from either the policy or Article 8 or a combination of the two. Any interference with family or private life in this case occasioned by the appellant's removal would in our view be proportionate."

4. It is now known, following the decision of the House of Lords in Huang, that there is no test of exceptionality: see most recently the decision of this court in AG Eritrea [2007] EWCA Civ 801. Indeed, reading between the lines of the AIT's decision one suspects that they realised before Huang was decided in the House of Lords that this was so.
5. To my surprise however the skeleton argument in this case, dated as it is June 2007, is predicated for most of its course on an exceptionality test and argues that this case is in truth exceptional. It is only at the very end that it picks up the AIT's own subsequent reference to the House of Lords decision in Huang, the Senior Immigration Judge having himself drawn attention to it in refusing permission to appeal. Senior Immigration Judge Warr wrote:

"The Tribunal did not arguably misdirect itself as contended in the grounds nor would its decision have arguably been different had it had the benefit of Huang [2007] UKHL 11."

6. Buxton LJ, refusing permission to appeal on the papers, wrote this:

"An appeal would have no real prospect of success.

It would have been better if the AIT had separately considered the position of the eight year old child. However it is clear from their very full analysis that they considered and were entitled to consider that the very serious family history precluded application of the seven year policy in any event. It follows from that that remission to the AIT the only relief that the applicant could seek an appeal would not produce a different outcome from the original AIT decision. The applicant cannot rely on delay because of her own contribution in avoiding immigration control. There is no other arguable issue in the case."

7. This court made it clear in paragraph 37 of AG (Eritrea) that even where the wrong test has been applied there will be cases where permission to appeal will be refused because the right test would inevitably have produced the same outcome. Here, for reasons I have given, I do not think that in substance the wrong test was in the event applied. Buxton LJ in any event plainly considered this to be a case where the same outcome, whatever approach was taken, was inevitable. But there remains the question, flagged up by Buxton LJ: ought the situation of the youngest child to have been specifically addressed? Not, it will be said, if the policy was inapplicable in any event; and Buxton LJ thought this was the case. The AIT, however, do not apparently so hold. They said in paragraph 51 :

"The questions that arise under the policy are not irrelevant to Article 8 considerations."

8. They go on, however, in the succeeding paragraphs to reason out proportionality without further reference to the policy, save to mention it in the summary of their conclusion at paragraph 58.
9. None of this is even touched upon in the discursive grounds of appeal which are before me, and it may be that this court will conclude that on any available approach the applicant would indeed be found to have forfeited reliance on the policy by reason of her own conduct. But the youngest child's position and interests do not, it seems to me, make this a foregone conclusion in regard to her. I have asked Mr Turner to step out of court and draft grounds which are capable of reflecting this point, a point to which Buxton LJ draws specific attention. He advances by way of amendment of his grounds the following :

"The AIT erred in failing to consider the 8 year old separate both in respect of Article 8 and of DP 69/99."

10. It seems to me that this, being a point taken in the interests of a minor, is a point to which this court ought to extend a little more latitude than it otherwise might to late submissions. It is a point, indeed the only point, on which it seems to me that permission to appeal can and should properly be granted. The further draft ground advanced by Mr Turner,

"…that the AIT erred that the appeal failed as it stated it applied the wrong legal test"

is in my judgment, so far as it is intelligible, not viable.

11. I therefore propose to grant permission to appeal upon the single ground that I have spelt out and on no other ground. It seems to me that two hours will suffice for the disposal of the appeal. I do not hold out any great hope for the applicant that it will succeed, but it does seem to me that it is entitled to the court's attention.

Order: Application granted.