COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM & IMMIGRATION TRIBUNAL
IMMIGRATION JUDGE HOLMES
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE WILSON
| VN (UGANDA)
|- and -
|ENTRY CLEARANCE OFFICER
Ms Susan Chan (instructed by The Treasury Solicitor) for the Respondent
Hearing dates : 26th February 2008
Crown Copyright ©
Lord Justice Longmore:
"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," (para. 20)
it must often be the case that, despite an error of law having been made by an immigration judge in following Razgar and the Court of Appeal in Huang, the end result of an appeal will be the same. Since Sir Henry Brooke gave permission to appeal, this court has considered the position and said
" there will be many cases in which it can properly be said by an appellate tribunal that on no view of the facts could removal be disproportionate" AG (Eritrea) v Secretary of State for the Home Department  EWCA Civ 801 para 22.
"27. The Immigration Judge's review of the relevant caselaw in # 28-35 of the Determination was thorough. She directed herself in reliance upon Miao  EWCA Civ 75 that when a claimant has established the existence of a protected right the burden shifts to the state to establish the justification for the violation. She correctly reminded herself that Article 8 does not impose on a state a general obligation to respect immigrant's choice as to their country of residence. She correctly directed herself that similar principles applied to a refusal of leave to enter to a decision to remove. She correctly reminded herself that in the case of an adult applicant there should be evidence of additional ties of dependency beyond the normal ties beyond related adults.
28. The Immigration Judge correctly concluded that Article 8 was potentially engaged both by the relationship between the claimant and her father, and the claimant and her brother. The refusal of entry clearance clearly interfered in the positive obligation to facilitate family reunion. The real question was whether that interference was proportionate to the need of the state to maintain immigration controls. To the extent that the Immigration Judge directed herself that the facts of the case needed to meet a test of "exceptionality" she did in the light of the House of Lords approach in Huang, thereby unwittingly fall into an error of law. I am not however satisfied that this amounted to a material error because in my judgment even had she directed herself in the light of their Lordships' unanimous opinion she would have reached the same ultimate conclusion.
29. In Begum  INLR 115 at 119 #12 the Court of Appeal held that #317 had been drafted in the light of the ECHR decision in Abdulaziz, and that the state was entitled to confine in that way the numbers of those dependent relatives of persons settled in the United Kingdom who would be permitted entry for settlement. Those limits are applied to reflect the respondent's view of the limits needed to secure the economic well being of the country.
30. I am satisfied that the balancing exercise set out by the House of Lords in Razgar, as reiterated in Huang, must result in the refusal of the claimant's appeal."
i) neither Immigration Judge Coker (nor, if relevant, the AIT itself) had identified the national interest served by the policy behind the immigration restrictions relied on or properly weighed against that policy the competing interest of VN not to have her entitlement to family life infringed;
ii) nor had Immigration Judge Coker (or the AIT) taken into account in VN's favour that her father could not sensibly re-locate to Uganda;
iii) most importantly, Immigration Judge Coker had not taken into account Michael's own independent right not to have his family life infringed; the refusal of entry clearance to VN infringed that night and the infringement was a particularly serious infringement since (so it is said) he treated VN as much like a mother as a sister.
Mr Hodgetts acknowledged that, but for this last matter, his appeal was unlikely to succeed but he submitted that this factor alone (but especially when accompanied by the other two factors) meant that neither the AIT nor this court could be certain that Immigration Judge Coker, if she had conducted the right balancing exercise, would have come to the same conclusion if she had applied the correct Huang test. Ms Chan for the Secretary of State submitted that this was a clear case on the facts and no immigration judge correctly directing herself could come to any conclusion other than that VN's appeal must fail.
"36. VN is financially dependant on her father; she is still at school and, when her brother travels to the United Kingdom she will not have any family members in Uganda to whom she can turn to for either emotional or financial support. Her relationship with her brother Michael is particularly close both because they were not in physical contact with their father but their contact with their mother was restricted to school holidays and she then died in tragic circumstances. I am satisfied that family life such as to possibly engage Article 8 exists between VN and her father and VN and her brother Michael. The failure to grant her entry clearance is of sufficient gravity as to engage article 8 and interfere with the positive obligation on the part of the state to facilitate family reunion ..
37. VN's father is married and has two children in the United Kingdom who are in full time education and are British citizens. He is a British Citizen. It is not possible for him to go and live in Uganda with VN; to do so would result in the breakdown of his family life here in the United Kingdom. VN and her brother are very close. Although I am satisfied that she has played an important role in his life, I am not satisfied that the death of their mother caused a qualitative change in that relationship they only lived with their mother during school holidays (the exact amount of time was rather unclear from the evidence before me), they had been brought up by Florence Kasule since they were very young and their mother died three years ago. VN is still at school. There was no evidence before me how long it was anticipated she would remain at school or what her future educational or employment plans were. She is now aged 19 and although this is still young and she will still require the guidance and support of her father or other responsible adult, there was no evidence before me why this could not be achieved through the same means as it has been provided in the past regular telephone calls and occasional visits."
i) VN was in full time education at boarding school in Kampala funded by her father;
ii) temporary accommodation was provided in the holidays by Mrs Kasule;
iii) there was no evidence that accommodation would not continue to be provided either with Mrs Kasule or somewhere else once boarding school education came to an end;
iv) contact with Mrs Kasule could continue;
v) VN would be able to earn her living after leaving school;
vi) VN's father had visited VN at least twice since he had left Uganda; VN was able to visit both her father and her brother in the United Kingdom;
vii) VN could maintain the same contact with her father by post, e-mail and telephone as she always had;
viii) Michael had always played an important role in VN's life, but the death of her mother had not caused a qualitative change in the relationship; the relationship with Michael could continue albeit by post, e-mail, telephone and regular visits rather than a continued presence;
ix) There was no evidence of any isolation or social stigma that would attach to VN if she remained in Uganda.
The policy contained in the immigration restrictions
i) obligations arising from international agreements;
ii) if their presence served an essential national interest; and
iii) if there were "compelling reasons of a humanitarian nature".
There was thus no comparably careful distinction between children under 18 and children over 18 such as is to be found in the United Kingdom Immigration Rules. It is perhaps not surprising therefore that the European Court on Human Rights held in respect of each of the applicants (who were each under 18 at the time) that their non-admission to the Netherlands when their parents could not be expected to re-locate to their country of origin constituted a disproportionate infringement of the child's right to family life. In paragraph 37 of Sen the court said it took into consideration
"the age of the children concerned, their situation in the country of origin [Turkey] and their degree of dependence on their parents. It cannot in effect consider the matter from the sole point of view of immigration, by comparing this situation with that of persons who have only established family bonds after becoming settled in the host country."
It then proceeded to hold (paragraph 41) that a fair balance had not been struck in relation to a nine year old girl who had been left behind in Turkey when her parents came to the Netherlands.
Inability to re-locate
Michael's human rights to family life under Article 8
Lord Justice Wilson:
Lord Justice Rix: