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: HR/00523/2006]

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th May 2008

Lord Justice Tuckey:

1. This is a renewed application for permission to appeal by CE from a decision of the AIT which on a reconsideration dismissed her appeal from the Secretary of State's decision that her removal from the United Kingdom would not breach Article 8. Permission to appeal was refused by the AIT and on the papers by Laws LJ. Mr Khubber, for the applicant, who has appeared for her throughout these proceedings applied this morning for an adjournment of today's hearing pending decisions of the House of Lords in three cases which he says may have some bearing on this case. We refused that application for reasons which I will explain shortly whilst dealing with the merits of the application to which I now turn.
2. CE is a 54-year-old citizen of Colombia who arrived in the United Kingdom in 1996. She made a claim for asylum which was finally dismissed in 1999. She has lived for a number of years with her son and four grandchildren at weekends and with her son's former partner and her children during the week. She is close to both families. Her father and brother still live in Colombia. Her two daughters and their four children live in Spain.
3. The applicant's first appeal to the AIT was successful. The Immigration Judge, having found that Article 8 was engaged, concluded his reasoning by saying:

"The relationship which the appellant had with the members of her family in the United Kingdom is genuine and strong and she is clearly involved in the life of her son's former partner and her family and also in the life of her son and his present partner and family. It would have a detrimental and adverse effect on her if she were to be refused in her appeal and also there would be adverse effects on other individuals who were involved in her life. Therefore I make a finding on the facts that it would be disproportionate for this appellant to be refused and returned to Colombia. Her circumstances are based on the information before me truly exceptional."

4. The Secretary of State appealed this decision and a reconsideration was ordered which was subsequently heard by Senior Immigration Judge Perkins. He accepted that Article 8 was engaged, but found that the Immigration Judge had made a material error of law in his consideration of proportionality in the passage which I have quoted. It was, said the Senior Immigration Judge, entirely one-sided and based only on the detrimental and adverse effect which removal would have on the applicant. It had not been set against the need for immigration control and no consideration had been given to how the applicant's private and family life could be conducted outside the United Kingdom.
5. Mr Khubber renews his complaint that there was in fact no error of law in the decision of the Immigration Judge and therefore no jurisdiction for the Senior Immigration Judge to go on to reconsider the matter. He makes the point that findings about proportionality are fact sensitive and that the Immigration Judge must have considered the need for immigration control by his finding that this was a truly exceptional case.
6. I cannot accept those submissions. Like Laws LJ I think the Senior Immigration Judge was right about this for the reasons which he gave. In the passage I have quoted there is no balancing of the competing considerations which anyone exercising this fact sensitive jurisdiction is required to undertake and there is no consideration either of whether family life could be conducted outside the United Kingdom.
7. So the Senior Immigration Judge was right to go on and consider the merits of the Article 8 claim himself in the light of the facts found by the Immigration Judge which were not in dispute. In paragraphs 37 to 54 of his decision he reviewed those facts and conducted what it seems to me was a perfectly proper and well-reasoned balancing exercise before reading the conclusion which he did at paragraph 55 that he was:

"quite satisfied that when the need to maintain immigration control is added to the matrix there is no alternative but to conclude the appellant's removal would not be disproportionate to the proper purpose of enforcing immigration control and the appeal therefore should be dismissed."

8. Having said that he conducted a perfectly proper and well-reasoned balancing exercise it follows that he made no error of law. Along the way he concluded that it was unrealistic to assume that family life could be preserved by everyone involved leaving the United Kingdom together. Nevertheless he said there was no reason to assume that the applicant's removal would sever all forms of contact with the families here who were important to her. Mr Khubber suggests that in his assessment of whether it was possible for family life to be conducted elsewhere the Senior Immigration Judge applied a test of whether there were insurmountable obstacles to family life being resumed elsewhere. I do not agree. It is self-evident from the way the Senior Immigration Judge approached this matter that he did not apply any such test. So the fact that this test is apparently under consideration in one of the three cases being by the House of Lords is not to the point.
9. More to the point is the question of delay and what this court had to say about it in the case of HB (Ethiopia) v SSHD [2006] EWCA Civ 1713. The applicant's Grounds of Appeal contend that the Senior Immigration Judge did not apply HB correctly. There was in this case a five-and-a-half year delay between the time when the applicant made her Article 8 claim and the Secretary of State's decision to reject it, which Mr Khubber contends the Senior Immigration Judge did not take into account or did not take fully into account in his reasoning. The Senior Immigration Judge sets out in full a summary of the principles to be derived from the authorities which are set out in HB. He says in terms at paragraph 45 that the fact that the applicant has now been in the United Kingdom for over 11 years does give pause to ask if her removal is really necessary. I think the Senior Immigration Judge applied the principles in HB correctly. This was not a case in which the Secretary of State was seeking to rely on some procedural rule and was a case in which the applicant did not have any specific right to remain in the United Kingdom under the Immigration Rules. There was, it seems to me, nothing controversial about this and so the fact that HB is one of the three cases being considered by the House of Lords is again not to the point.
10. If the applicant's claim had been dealt with promptly it would almost certainly have failed against a background of a false claim for asylum and only a relationship with adult family members. It was only because of the Secretary of State's delay that the applicant had been able to establish a family and private life and that the question of proportionality arose at all. I can see no error of law in the Senior Immigration Judge's approach to the question of delay and no reason for adjourning the case pending any reconsideration of HB by the House of Lords.
11. The third House of Lords' case relied on by Mr Khubber is Betts v SSHD [2005] (EWCA) Civ 828, where the House of Lords will apparently be considering the extent to which infringement of non-appellant family members' Article 8 rights can be considered in a statutory appeal where the appellant raises Article 8 issues. But again this has never been a freestanding point in this case and was not considered as such by the Secretary of State, or the AIT in either of its decisions. It can therefore have no bearing on the present application.
12. As to the merits of the application I agree with Laws LJ that the Senior Immigration Judge's decision was not flawed by any error of law. In the course of this judgment I have explained why we refused to adjourn this application. I would refuse this renewed application for permission to appeal.

Lord Justice Toulson:

13. I agree with all that has been said and the observations of Laws LJ.

Order: Application refused.