Case No: C5/2007/2308
Neutral Citation Number: [2008] EWCA Civ 371
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
[AIT No. IA/02955/2005]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 2nd April 2008

Before:

LORD JUSTICE TUCKEY
LORD JUSTICE THOMAS
and
LORD JUSTICE HUGHES
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Between:

	HC (JAMAICA)
	Appellant	
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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Mr D Seddon (instructed by the Immigration Advisory Service) appeared on behalf of the Appellant.

Mr B Collins (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.

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Judgment
Lord Justice Hughes:

1.	This appellant is an overstayer.  He was brought to this country when he was thirteen by his mother, who herself was then and has been since an overstayer.  Now he is twenty-six.  He has married a lady who is a Jamaican national, but who has been granted indefinite leave to return, and they have a son born in 2002.  In November 2001 the mother applied for settlement in the United Kingdom and included this applicant and other three older siblings in that application.  It was refused in March 2003.
2.	Sometime later, in March 2005, a decision was taken in the Home Office to enforce the removal of (among others) mother and the appellant.  They both appealed to the Asylum and Immigration Tribunal.  Their substantive argument was that removal would represent a disproportionate interference with their Article 8 rights.  By a decision dated 22 June 2007 the AIT allowed mother’s appeal but dismissed that of this appellant.  That decision was made upon reconsideration because the AIT had taken the view that an earlier decision of an immigration judge had been flawed in law.  That fact will be material to one of the submissions which has been made in this case, but is otherwise irrelevant.  From the decision of 22 June, this appellant appeals.  
3.	The facts are conveniently set out in the judgment of the immigration judge:
    
“The first Appellant is now aged 48 years.  She entered the United Kingdom on 06/11/91, having been given leave to enter as a visitor for a period of six months.  Since the expiration of that leave, it has not been extended.
6.	The first Appellant left behind in Jamaica her four children.  They were cared for by her mother, after her husband’s death in 1992.  The first Appellant undertook employment as a cleaner to send money back home for the maintenance of her children.
7.	The first Appellant’s two daughters, Milisha and Tadar, came as visitors to their mother in 1993.  Her two sons, of whom the second Appellant is one, came to the United Kingdom in 1994.  All children were minors when they came.  After expiry of their leaves to remain, all four children remained in the United Kingdom as overstayers with no rights to remain.  The first Appellant arranged for their education, and their treatment, and her own, under the National Health Service and she continued either to work illegally or to receive welfare benefits to which she was not entitled.  Both the first Appellant’s two daughters have children of their own.  Milisha, who is now a British citizen, has a daughter and a son who are British citizens, also.  Tadar has indefinite leave to remain granted by the Respondent in September 2006.  Tadar’s four children have been granted indefinite leave to remain in line with the grant to their mother.
8.	On 08/11/01, the Appellants, and the first Appellant’s elder son, Haisley, applied for indefinite leave to remain in the United Kingdom on the basis of long residency.  The applications were refused with no right of appeal on 04/03/03.  In March 2003, the Appellants and Haisley were instructed to leave the United Kingdom.  They did not.  In June 2005, the Respondent decided to remove the first Appellant and her sons from the United Kingdom.  The decision was appealed by both the first and the second Appellant.
9.	The appeal of the first Appellant’s elder son, Haisley, is not before me.  Evidence has not been provided to show that he is anything other than unlawfully resident in the United Kingdom.  Insofar as his circumstances impact upon those of the Applicants, it is appropriate to note that he has suffered from mental illness, certainly from early 2004 and he had hospital treatment for significant psychotic episodes during 2004.  He lives close to his mother and siblings.  He is engaged to a British citizen, whom he intends to marry.  They have a daughter who was born in January 2006.  No specific wedding plans have yet been made.  I am told that Haisley’s fiancée does not live with him because she fears that if he relapses, harm may come to her or to their daughter.
10.	Like Haisley, the second Appellant lives near to his mother and siblings.  He and his wife married in August 2004, having cohabited since October 2001.  Their son Jamal was born in September 2002.  The second Appellant has had a successful school carer, both in terms of achieving qualifications and additionally, as a successful sportsman, playing cricket at county level during his late teen years.  He obtained employment in early 2001, maintaining his wife and son from his salary.  Because his employers became aware of his uncertain immigration status, his employment has now ceased, but he is anxious to re-enter the labour market as soon as possible. Presently he and Jamal are supported by the earnings of the second Appellant’s wife, who has lawful residence in the United Kingdom, having been indefinite leave to remain by the Respondent in July 2002.”                    

4.	The immigration judge accepted, plainly correctly, that both mother and son had established family lives in the United Kingdom and that, inevitably, removal would constitute an interference with them.  It followed that the question for her was whether that interference was justified on the facts of each individual case under Article 8, paragraph 2.  It is trite law that the exercise of immigration control is within the legitimate objectives contemplated by that paragraph and that the convention confers no rights upon either individuals or families to insist upon choosing the country in which they live, despite such immigration control.  The question in each case is one on its individual facts.  It is: is the removal anticipated a proportionate response to that legitimate objective?  In the context of immigration control, there is no additional legal test of exceptionality to be imposed.  It is to be expected that the number of claimants not covered by the various immigration rules and supplementary directions, who can nevertheless establish an Article 8 claim to remain or to enter, will be a very small minority.  For those well-known general statements see Huang v SSHD [2007] UKHL 11 [2007] 2 AC 167.
5.	There is no suggestion in this case that the immigration judge did not correctly direct herself as to the test of proportionality.  The appellant’s contention is that the immigration judge erred in law.  His grounds are variously formulated, but they amount, in the end, as it seems to me, to four.  First, it is said that the immigration judge wrongly took into account the prospects of any application which the appellant might make from Jamaica for leave to enter.  Secondly, it is suggested that she wrongly characterised the appellant’s situation as one of queue-jumping, such as to subvert immigration control.  Thirdly, it is said that she reached inconsistent conclusions as between mother on the one hand and son on the other.  Fourthly, it is said that she wrongly concluded that it was reasonable for the son to be expected to relocate.
6.	On the first of those submissions, Mr Seddon draws our attention to what the immigration judge said in paragraph 34 of her judgment.  She there said this:  
“Since 2002, when he and his wife commenced cohabitation and she obtained indefinite leave to remain, and, since 2004, when they married, it has been open to the second Appellant to apply, with her support, from Jamaica to enter the United Kingdom lawfully for settlement.  He could be more sanguine of a successful outcome than any opportunity which would be afforded to his mother were she to return to Jamaica.  He did not choose to try to regularise his status in this way.”

7.	Mr Seddon says that amounts to the error of relying for her conclusion on the prospects of the appellant succeeding in an application made from Jamaica.  Moreover, he says that, although it may very well be that mother’s prospects would be even worse, it is not the fact that the son’s prospects are good because, under rule 320(11), a case in which there has been a failure to observe the time limit or conditions attached to a grant of leave to enter or remain, is one in which entry “should normally be refused.”  
8.	For my part, I do not think that the judge was purporting to assess the prospects of any subsequent application which the appellant might make from Jamaica.  Insofar as she said that his position would be rather better than that of his mother, she was, as Mr Seddon concedes, no doubt correct, because whilst under rule 320(11) overstaying is a ground on which entry “should normally be refused”, by contrast, the case of false representation or material disclosure is likely to be viewed a good deal more seriously and, under recent amendment to the rules, would now be treated as a fact on which entry “is to be refused.” 
9.	Whatever may be the position about the prospects of any application which the son might make from Jamaica, I am quite satisfied that the passage in paragraph 34, to which Mr Seddon has taken us, was not a case of the immigration judge directing herself that those prospects were relevant to the question of proportionality under Article 8(2).  Quite the contrary; this is the point at which it is relevant to remember that the immigration judge was dealing with this case by way of reconsideration.  The reason why she was considering the case of this appellant by way of reconsideration was set out by her in paragraph 3 of her judgment by way of citation of the decision to send the case back.  The reason why reconsideration had been directed was as follows:
“So far as the second appellant is concerned, the Tribunal accepted the submission that the determination is irremediably based upon a consideration of whether   the second appellant   would satisfy the  requirements  for  entry  clearance   from  Jamaica:  a factor which the    Court     of Appeal held in SB (Bangladesh) v SSHD [2007] EWCA Civ 28 to be irrelevant in determining proportionality.”

10.	In other words, it was precisely because that error had been made in the past that this immigration judge was dealing with the case of this appellant at all.  In those circumstances, she could not conceivably have misdirected herself in the manner in which Mr Seddon now suggests she did.  What she was doing in paragraph 34, I am quite satisfied, is comparing the responsibility for the breach of immigration control of, on the one hand, the mother and, on the other hand, the son.  As the immigration judge said elsewhere in relation to the mother, Mother’s responsibility for the breach of immigration control was considerably the greater.  She had, arguably, misled the authorities on original entry.  Certainly she had misled the authorities when bringing the children in successively afterwards.  She had worked and, although paying taxes, had had the children educated at public expense, treated under the National Health Service and herself at times had claimed welfare benefits -- all at a time when she was not entitled to so.  
11.	Her responsibility, accordingly, for breach of immigration control was considerably greater than that of the son who, at the age of thirteen, had been brought to this country and could not, at that age, possibly have been expected to take any personal responsibility for it.  What could be said about the son was what the immigration judge said in paragraph 34, which it is unnecessary now to repeat.  Effectively, his responsibility for breach of immigration control was that he had chosen to remain, indeed despite being asked to leave in 2001, and had failed to take the steps which he could have taken to regularise his position, namely, to make an application from Jamaica.  There is accordingly no error of law to be found implicit in the reference in paragraph 34 to the application which he might have made in the past, but had not.
12.	Mr Seddon’s second submission is that the immigration judge wrongly referred, in paragraph 36 of her judgment, to the principle that queue-jumping should not be allowed.  Says Mr Seddon: this is not a case of queue-jumping because the appellant was brought to this country at a time when he had no personal responsibility for it at the age of thirteen.  This, as it seems to me, is largely a question of fact; and indeed Mr Seddon’s submission is that the application of this principle requires fact-sensitive analysis, and I am far from sure that it raises any question of law at all.  However, for my part, to describe the effect of allowing the appellant’s appeal as jumping the queue seems to me to be perfectly proper.  As has frequently been said in the past in this court and elsewhere, firm immigration control requires consistency of treatment between one aspiring immigrant and another.  To grant leave to an overstayer on the grounds that he has established himself here and/or married a woman with a right to remain does undermine that firm immigration control, and it is manifestly unfair to others who take their place in the entry clearance queue.  The principle -- if that is what it can be properly described as, which I doubt, of discouraging queue-jumping -- is not confined to those who came originally with the intention of jumping the queue.  
13.	Thirdly, Mr Seddon submits that the immigration judge’s decision was inconsistent as between mother and son.  The difficulty with that submission is that Article 8 requires individual consideration of each case.  This is pre-eminently a question of fact and not a question of law.  The situations of mother and son were not identical.  On the immigration judge’s findings -- set out in paragraphs 23, 24, 25, 29 and 30 -- mother’s role in the extended family was completely central to her life.  The immigration judge’s conclusion was that mother’s life revolved around building the family up in this country.  It is certainly true that the family contained the present appellant and indeed his son, mother’s grandson.  However, the extended family was a good deal wider than that.  There are three other children: two are established lawfully here with their spouses and have between them six grandchildren of mother, and the third is the appellant’s older brother, whose illness was described by the immigration judge and whose principal carer the mother appears to be.  The immigration judge found that mother was constant in maintaining vigilance against a relapse by that man, visiting him sometimes three or four times a day to encourage him to take his medication and to watch for any signs of deterioration.  The immigration judge concluded that mother had accepted responsibility for that man and, even though not living with him, was effectively taking care of him. 
14.	 It does not, as it seems to me, follow from the fact that the appellant’s son is one member of this extended family that the impact of the interference with his family life, constituted by removal to Jamaica, would be the same for him as it would for his mother.  The immigration judge was required to consider the cases of each appellant separately.  She was, as it seems to me, entitled to conclude that the interference would be disproportionate in the one case but not in the other.  The reason why she made the distinction appears to be the finding that, in mother’s case, her role was so much that of the lynchpin of the family, and so much was the family her raison d’être, that there would be a complete destruction of her family, in the sense in which she enjoyed it, if she were returned to Jamaica.  If the immigration judge has reached what might be seen by some as a generous conclusion in the case of the mother, that is a lawful exercise of her judgment with which this court would not interfere.  More importantly, if she has been generous to the mother, it does not follow from that that her decision in the case of the appellant is unlawful.
15.	Lastly, it is submitted that the judge wrongly concluded that it was reasonable to expect the appellant to relocate to Jamaica and that his wife could also do so if she chose, though she has expressed the view that she would not.  The question of whether it is reasonable to expect an appellant to relocate is pre-eminently a question of fact in every case.  For my part, I do not doubt that this appellant has behaved well in this country.  He has considerable sporting links here; in the past he had employment links here.  Nor do I doubt that he has no links of any substance or any home in Jamaica.  But the immigration judge found that he is intelligent, articulate and quite young enough to provide well for himself, and for his family if they choose to join him, in Jamaica, as elsewhere.  It is simply impossible to contend that she was not entitled to reach that conclusion.  It follows from that that she was entitled to decide that his was not one of the small minority of cases in which undoubted interference with his Article 8 rights -- inherent in the application to him of this country’s immigration rules -- would be disproportionate. 
16.	Insofar as there is a suggested criticism of the use of the expression “insurmountable obstacles to relocation” in paragraph 36 of the judgment, I see no basis for seeing that as an error of law.  It was an expression used by Lord Phillips MR (as he then was), in R (Mahmood) v SSHD [2001] 1 WLR 840 at paragraph 55.  While Mr Seddon has helpfully taken us to the subsequent, or just subsequent, case of Boultif v Switzerland [2001] 33 EHRR 50, and whilst it may be that that was a generous conclusion on the facts, it is to be observed that in that case the court proceeded upon the basis that relocation was “practically impossible” (see paragraph 55).  I do not for myself detect any significant shift from the approach at the time of Mahmood.  Nor could either test falsify the conclusion which the immigration judge reached in the present case.  
17.	Lastly, Mr Seddon draws attention to the fact that the son of the appellant and his wife is a British Citizen by birth.  That means that he has the right, given by section 1 of the Immigration Act 1971, to come and go into and from the United Kingdom without let or hindrance.  Mr Seddon says the immigration judge did not refer to that and that means that she failed to take it into account.  Since no one is able to suggest that this particular submission was made to the immigration judge it is unsurprising, to me at least, that it does not find particular reference in her judgment.  She could not possibly have been unaware of it, and she referred to the existence of the boy in the course of her judgment.  For my part, I accept that the status of the boy as a British Citizen means that he has the right, given by section 1 of the Act, to enter and leave the United Kingdom without let or hindrance.  It does not follow that his father has; nor does it follow that it is unreasonable for the son to live with his father where his father lawfully can -- that is to say, in Jamaica.  Equally, if his mother so chooses for him at his tender age, he is entitled to remain here with her.  I am unable to detect any error of law in relation to the decision of the immigration judge that it was reasonable for the appellant and his family, if they chose to go with him, to relocate.  That is, as I say, a question of fact in every case.  
18.	For all those reasons, I am, for my part, quite unpersuaded that there is any error of law in the decision of the immigration judge and I would, for those reasons, myself dismiss the appeal.
Lord Justice Tuckey: 
19.	I agree.
Lord Justice Thomas: 
20.	I also agree.
Order:  Application refused