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/13729/2007]

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th September 2008

Lord Justice Sedley:

1. The applicant, who has been represented today by Mr Hawkins, arrived here in 2000 from Uganda, which is the country of her nationality, on a six-month visa. In 2001 she applied for an extension of her stay as a student but heard nothing, we do not know why, despite repeated reminders, until in August 2007 a refusal came. Her appeal against the refusal was dismissed by Immigration Judge Ross on the ground that removal was a proportionate invasion of her Article 8 rights and on a reconsideration ordered by McCombe J, Senior Immigration Judge Moulden held that the decision contained no error of law.
2. Immigration Judge Ross accepted that the applicant, who now has a young child, is emotionally and financially dependent on her brother Godfrey who supports her; that her two sisters are also here and that she requires medical treatment, including surgery, for back pain. He accepted therefore that Article 8 was engaged, but he held:

"The factors being relied on by the appellant are firstly her health. I do not consider that this factor is one which makes it unreasonable for her to return to Uganda. Although I accept that she does have a very bad back condition which causes her pain, and that if she goes back she will not have the support of her family, the family have indicated that she will continue to be supported financially if she return and so I am satisfied that in a third world country she could pay to get help with the tasks that she finds too painful to perform herself. I accept that the standard of medical care is not as good in Uganda, but this does not entitle her to remain. In addition the family in the United Kingdom can remain in touch, by telephone and visit her in Uganda."

3. Mr Hawkins cogently submits that this finding omits several potentially influential elements of the evidence which was before the immigration judge; evidence that the applicant had spent relatively little of her life in Uganda, having spent most of it with her parents and siblings in Kenya; that her parents and brother had, however, been killed in a car crash in Kenya in 2003; that her closest relationship was with her brother in this country and that she had a daughter who it was a struggle to care for even in the United Kingdom.
4. Senior Immigration Judge Moulden on reconsideration took the view that since all these factors had been duly set out earlier in the determination, as indeed they had been, it cannot fairly be said that they had been overlooked. I am by no means happy about this. What is required when the proportionality of a removal is gauged is a roundup, no matter how brief, of the factors going each way so that it can be seen how and why the immigration judge is reaching whichever conclusion he or she does reach about them. So I would not be prepared on this application to hold that what is set out in paragraph 18 of Immigration Judge Ross' determination is necessarily adequate; but that is not the end of the issue. The question is whether, even if he had brought the further factors expressly into account, Immigration Judge Ross could have realistically reached a conclusion opposite to that which he did reach. In my judgment he could not.
5. The applicant, it is quite true, had not overstayed clandestinely. She had applied for more time and for years had heard nothing, through whose fault we do not know. I also accept that Home Office delay, while not in itself a ground for non-removal may, with the passage of time, enhance family and private life in this country to a point of which, with other factors, removal becomes disproportionate. The immigration judge did not find that point to have been reached and in my judgment was not bound to do so. The applicant had and still has no entitlement to be here and her daughter is young enough to travel with her and resettle. She is now 32, the child is now 3. The brother can be expected to continue to give her financial support, albeit his own position in this country is not one of status. That said, it has to be noted that the country of her nationality, Uganda, is largely a foreign country to the applicant and that in Kenya, which is much more nearly her true home, she no longer has immediate family. This is something which, it seems to me, the Home Office will necessarily give careful attention before deciding on the destination for removal, but it is not a factor capable, alone or with other factors, of making the removal disproportionate even if it means that the applicant has to travel from the point to which she is returned in order to resettle.
6. Like Stanley Burnton LJ who considered the matter on the papers, I am not prepared to grant permission to appeal in this case. It seems to me that on any view of the facts, removal has to be regarded as proportionate, hard though I recognise it will be for the applicant. In other words, putting the question in the way that Mr Hawkins put it and answering it in those terms, the arguable error of law in the summation of the proportionality issue is not a material error because even if all had been duly brought into account and tabulated, as I believe it should have been, the answer would, I am afraid, have been bound to have been the same. I am sorry that I cannot help. This applicant has my sympathy, but I am afraid that permission to appeal has to be refused.

Order: Application refused