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 Nos. IM/13599/2006 & HR004892005]

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th June 2008

Lord Justice Sedley:

1. Before the court are two appeals which were conjoined in the AIT at the point of second stage reconsideration. At that point both claims under Article 8 to remain in this country were dismissed by the AIT. The question before this court, however, is whether in either case the AIT, in the person of Senior Immigration Judge Chalkley, was justified in sending the case on for second stage reconsideration. It is submitted by Mr Patrick Lewis in both cases that Senior Immigration Judge Chalkley erred in finding any error of law in either first instance determination, which in each case had been a determination in favour of the individual appellant such that they were to be allowed to stay.
2. I will turn first to the case of Raquel Peters, who is a Zimbabwean by nationality and is now 23. Her mother has a temporary right of abode here as a person with a UK ancestry visa. The parents, in the exercise of the rights which such a visa affords, have decided to settle here with her younger sibling. They have done so principally because of the deteriorating situation in Zimbabwe, but they did not come as asylum seekers. They sold up their property there, and this appellant consequently now has neither immediate family nor assets in Zimbabwe to which she can look for support.
3. She herself came here first in 2002 on a working holiday visa. She stayed with her uncle and his family in West Sussex but after a few months returned to Zimbabwe because she missed her family. A year later in May 2004 she returned with her mother, and in November 2004 applied for leave to remain as a dependent of someone with an ancestry visa. The father brought the rest of the family over the following month. But the Home Office declined to allow the appellant to remain here. On appeal to the AIT, however, Immigration Judge Powell accepted that hers was an exceptional case in which the breach in family and private life which removal to Zimbabwe would entail was disproportionate to the legitimate aim of removal.
4. Senior Immigration Judge Gill considered it arguable that the immigration judge had given no or inadequate reasons for finding that Article 8(1) was engaged, and ordered reconsideration. On first stage reconsideration Senior Immigration Judge Chalkley held that there had been a failure to explain

"…why he found that this appellant enjoys a family life with her parents, 'siblings and other relatives'."

He so held because, as it seemed to him, the immigration judge had given only these reasons for his finding at paragraph 29:

"I am satisfied that the appellant enjoys a mix of family and private life in the United Kingdom with her parents, sibling and other relatives. I am satisfied she has only lived within a family environment whether in Zimbabwe or the United Kingdom."

5. The error, in the view of Senior Immigration Judge Chalkley, arose out of the want of an adequate explanation of why Article 8 was engaged at all. The question for this court is thus not whether the immigration judge's determination was vitiated by any error of reasoning in relation to the proportionality of invading the appellant's Article 8 rights; it concerned solely whether he had adequately explained why Article 8 was engaged at all.
6. In my judgment there was no such error or omission in Immigration Judge Powell's decision. Indeed, when the case came on for a second stage reconsideration, the Home Office Presenting Officer accepted that there was no issue but that the appellant enjoyed a family life in this country. Given the uncontested evidence before the immigration judge that the appellant had lived pretty well continuously with her parents and siblings all her life and that she was still doing so, any other submission or finding would have been quite unreal. Before the immigration judge himself, it is recorded at paragraph 11 that the Home Office did not contend otherwise. Its case was that removal was nevertheless a proportionate interference with the appellant's family life. In this situation there was in my judgment no need whatever for the immigration judge to have said any more than he said on the subject at paragraph 29; neither before him nor since has there been any suggestion that he was incorrect in so finding.
7. I would add for my part that if I had considered that the second stage determination was warranted I would have had some serious reservations about the reasoning which led the tribunal which conducted it to substitute an opposite finding to that of Immigration Judge Powell on proportionality. They thought it appropriate to hold against the appellant's family the fact that they had chosen to leave Zimbabwe when they were not being persecuted to an extent entitling them to claim asylum, apparently overlooking the fact that they had come here as of right. They also thought it right to make other comments suggestive of a settled hostility to Article 8 claims. In the event, however, there has been no need to canvass these issues because in my judgment no second stage consideration ought to have been ordered at all. The decision of Immigration Judge Powell was free of error of law. In that situation the determination of Senior Immigration Judge Chalkley falls to be overturned and the appeal to be allowed.
8. I turn to the case of Rodney Peters who is Raquel's cousin. He too is a Zimbabwean national of mixed African and Asian descent. I mention that for a reason. He is now 25 years old and is single, but it is undisputed that economically and emotionally he is a dependent member of his immediate family, all of whom -- that is, his parents and his two sisters -- are now lawfully resident here on the basis of the mother's UK ancestry visa, a residence which, as I understand it, will after four years enable them to seek indefinite leave to remain. He is also close to two male cousins on his mother's side, both of whom now live here. There is therefore no question but that his proposed removal to Zimbabwe will disrupt close family ties. It is also common ground that although the appellant has grandparents in Zimbabwe, they are elderly and infirm. He is nevertheless a fit young man with a BA in psychology from Rhodes University in South Africa; but Zimbabwe is a country with 80% unemployment where people of mixed race face discrimination.
9. This appellant appealed on Article 8 grounds against the Home Office's decision to refuse an extension of his leave to remain. In July 2005 Immigration Judge Oakley allowed his appeal. Following a consensual remission on a jurisdictional issue, a reconsideration was ordered by Senior Immigration Judge Storey on the ground that the decision was arguably perverse:

"If correct [it] would entitle virtually every second person facing return to the Third World to succeed on Article 8 grounds."

On a first stage reconsideration, Senior Immigration Judge Chalkley found there to be this, as well as another, error of law and sent the case for second stage reconsideration, which in due course was determined on its merits against the appellant.

10. Although it has been sought to impugn the second stage consideration on its own merits, Sir Henry Brooke refused permission to appeal either against that decision or against the first stage reconsideration which resulted in it. On renewal, Moses LJ gave permission solely to challenge Senior Immigration Judge Chalkley's determination that Immigration Judge Oakley had erred in law and it is on this issue alone that the appeal had consequently been conducted before us.
11. Senior Immigration Judge Chalkley found two errors of law. The first was that, having reached a properly reasoned conclusion that the appellant had established a family life here but that return would be lawful, and before turning to the question whether, even so, it would be proportionate, the immigration judge had turned aside to deal with a point which had been raised not by the appellant but by the Home Office Presenting Officer: that the appellant, if returned, could perfectly well apply to come back to this country on a student or working visa. The immigration judge had dismissed this in the following terms in paragraph 35 of his determination:

"…so far as a student visa is concerned there would need to be, for this to be granted, an intention by the Appellant to return, and I can only view such an application being considered by the Respondent as an attempt by the Appellant to circumvent the Immigration Rules and his intention at the completion of any studies would be not to return and therefore there is no certainty whatsoever that such an application would be successful."

In spite of some convoluted syntax, it is clear that Immigration Judge Oakley was saying that any such endeavour would be viewed with complete scepticism by the Home Office and, in so holding, he was clearly right.

12. Senior Immigration Judge Chalkley was scathing about this, as indeed he was about the generality of Immigration Judge Oakley's determination, which he called "rather confused", a criticism which, in my respectful opinion, was unfair. He went on to write in his first stage reconsideration decision at paragraphs 25-29:

"25. However, he went on in paragraph 35 to consider the prospect of the appellant being able to return to the United Kingdom and concluded that he would not be. That, with respect, was an error. The Immigration Judge clearly demonstrated at paragraph 35 of his determination that he speculated on the appellant's apparent difficulties which he would face in making an application to return to the United Kingdom.

26. In R v Secretary of State for the home Department, Ex parte Ekinci [2003] EWCA Civ 765, the court said (at paragraph 17):

'It would be a bizarre and unsatisfactory result if, the less able the applicant is to satisfy the full requirements for entry clearance, the more readily he should be excused the need to apply.'

27. The Immigration Judge's consideration of the question of whether or not an application for a visa would be successful was irrelevant and one which should not have been included in the Immigration Judge's consideration of the question of proportionality.

28. The Immigration Judge went on in paragraph 36 to say:

'The appellant does not have any qualifications on which he could make an application for employment in this country until he has a further education and obtained professional qualifications and therefore there is no likelihood the present time of him being in a position to apply for a work permit to come to the United Kingdom.'

29. Apart from the fact that the Immigration Judge appears not to understand that work permits are applied for by employers and not employees, that paragraph also demonstrates a further concern by the Immigration Judge as to whether or not the appellant would be able to return to the United Kingdom."

13. It is patent that all that Immigration Judge Oakley had been doing was deal with an endeavour by the Home Office presenting officer to play down the effects of return by suggesting that the appellant could anyway rejoin his family in fairly short order with the help of a student visa or a work permit. The immigration judge, as I have said, quite legitimately anticipated that the Home Office would view such an application for what it was -- a device to rejoin the family from which he had been lawfully separated - and so would reject it. He would have been rightly criticised if he had failed to deal with this argument; he cannot in my judgment possibly be criticised instead for having dealt with it. True, he might have done better to discountenance the argument entirely. Miss Sen Gupta has drawn our attention to the decision of this court in the case of SB (Bangladesh) v SSHD [2007] EWCA Civ 28, where an argument which was analogous though not the same had been advanced below and where, at paragraph 36, giving the judgment of the court, Ward LJ said:

"Accordingly, we conclude that the Tribunal erred in this one respect: when deciding whether the removal of the applicant to Bangladesh would be disproportionate, whether her case was truly exceptional, they should not have carried out, or taken into account, their own assessment of her prospects of coming back to the United Kingdom on an indefinite basis pursuant to an application which she might make from Bangladesh for entry clearance under the Immigration Rules."

That is not a general proposition of law. It is a proposition which concerned the relevance of the issue in that particular case. Insofar as it applies by analogy here it seems to me to assist Mr Lewis rather than the Home Office. But if Miss Sen Gupta's reliance on it is justified, it prompts this reflection: that a party would have only to make an irrelevant submission and persuade the immigration judge to deal with it in order to have a ground of appeal in their hip pocket should the decision thereafter go against them. The Home Office would be the first to be exercised if appellants started doing this. It may, as I say, be that the immigration judge could legitimately have brushed it aside, but there is nothing wrong in his having dealt with it in the way he did. If he had gone the other way on the point, indeed Mr Lewis might have had an argument that it had no bearing, but it does not arise here.

14. More problematical, on the face of it, is the error of law adumbrated by Senior Immigration Judge Storey in ordering reconsideration and adopted by Senior Immigration Judge Chalkley. It is said to lie in paragraph 37 of Immigration Judge Oakley's determination which, together with paragraphs 36 and 38, deals with the proportionality factors in this appellant's case. They read as follows:

"36. The Appellant does not have any qualifications upon which he could make an application for employment in this country until he has a further education and obtain professional qualifications and therefore there is no likelihood at the present time of him being in a position to apply for a work permit to come to the United Kingdom.

37. I have concluded that the Appellant's removal from the United Kingdom would be disproportionate to the need of immigration control on the basis that the Appellant would be returned to Zimbabwe where there would be no obvious prospect of him being able to support himself and no persons available there to support him other than his parents who would have to send money from the United Kingdom which would be a much larger amount than would be required if he was to be supported as he has been living with them in the United Kingdom.

38. The circumstances furthermore in respect of the Appellant's claim are in my judgement exceptional. There is no Immigration Rule that is applicable to the Appellant, notwithstanding the fact that he is the remaining dependent of the child of his parents and part of a complete family that now lives within the United Kingdom. Whilst the Appellant's family, it is accepted, do not have settled status, under Rule 192 of the Immigration Rules it is clear that their continuous presence for four years in the United Kingdom with an Ancestry Visa would lead to indefinite Leave to Remain in the United Kingdom."

15. As to this passage, Senior Immigration Judge Chalkley wrote at paragraph 28 of his first stage determination:

"Paragraph 37 of the determination demonstrates that the Immigration Judge erred in failing to conclude that, through a combination of his family in the United Kingdom and elsewhere, the appellant could not at least obtain subsistent support. The appellant is a young fit, twenty-two year old male with a university degree. He has one set of grandparents living in Zimbabwe, an uncle who apparently spends time in both Zimbabwe and South Africa and another set of grandparents who were living in Zimbabwe but who, in addition to the appellant's family in the United Kingdom, may be in a position to offer financial support to the appellant."

This, on the face of it, as Miss Sen Gupta rightly accepts, is a finding of perversity, holding, in other words, that on the evidence the only conclusion open to the immigration judge was that it would not be disproportionate to return the appellant to Zimbabwe.

16. The court has raised the possibility that the Senior Immigration Judge may, in the phrase "failing to conclude", have meant "failing to consider". If so, he would not have been justified in so holding because there was no failure to consider this aspect of the case. The immigration judge's paragraph 37 has to be read in the context of his determination as a whole, which included in paragraph 16 the recital of evidence (which was evidently uncontested) about the paucity of the appellant's prospects of employment as a lawyer in Zimbabwe, even if he were to qualify as a lawyer there.
17. So I return to the prima facie meaning of paragraph 28. It is first to be observed that if the perversity finding which it contains was right, no second stage reconsideration would have been required. In law the appellant's case on this point had to fail. There is no explanation of why the Senior Immigration Judge did not follow the logic of his own conclusion in this regard, but the more immediate question is whether he was entitled to hold that Immigration Judge Oakley had reached a decision on the evidence which no rational immigration judge could reach. That is a question which has always to be scrupulously disentangled from the question whether the second decision maker simply entertains a strong disagreement with the first, and I am not satisfied that that scrupulous separation was made here.
18. The Senior Immigration Judge's paragraph 28, which contains the entirety of his reasoning on the issue, does not attempt to set out the competing factors so as to demonstrate that on balance only one view of them -- an adverse one -- was possible. It sets out only those which militate in favour of removal. Nowhere do we find it demonstrated in his determination, as has to be done on a successful perversity challenge, how, even accepting those factors which militate against it, removal can only be rationally regarded as proportionate.
19. The underlying concern articulated by Senior Immigration Judge Storey in giving the initial leave is real, but a decision such as Immigration Judge Oakley's does not represent -- and Miss Sen Gupta, to her credit, has not suggested it does -- a backdoor route to ad hoc family reunion for over-18s who can and arguably ought to be independent. It requires proof, first and foremost, of an extant family life in the United Kingdom of sufficient reality to engage Article 8. Such proof existed here and its existence is not contested. It does not mean that anyone threatened with return to a poor or disturbed country can, for that reason alone resist removal. As the second stage reconsiderations in this and its associated case show, more than one view may be taken of the proportionality of removal in such cases, although I reiterate we have not had to embark upon the tenability of that view in the present case; but unless the decision on a first instance Article 8 appeal is vitiated by an identifiable error of law, which may in an extreme case include perversity on the facts, it cannot be overset on a first stage reconsideration. In my judgment, in Rodney Peters' case as in Raquel Peters' case, there was no such error, and in his case too the initial decision should stand. I would accordingly allow both appeals.

Lord Justice Ward:

20. I agree

Lord Justice Longmore:

21. I also agree.

Order: Appeals allowed