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/06597/2007]

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th January 2009

Lord Justice Scott Baker:

1. This is an appeal from a determination of Senior Immigration Judge Martin promulgated on 16 May 2008, when she upheld the decision of Immigration Judge Abebrese of 26 June 2007 dismissing the appellant's appeal against the respondent's decision not to give him leave to remain in the United Kingdom.
2. The facts can be fairly shortly stated. The appellant is aged 28 and a citizen of Bangladesh. He claims to have arrived in this country illegally in June 1995, alone, aged fourteen and a half. I say alone, that is that he was the sole member of his family who came.
3. On 2 July 2004 he applied for leave to remain under the long residence provisions in paragraph 276B of HC 395. The respondent refused the application on the basis that the appellant could not establish either ten or more years lawful residence or fourteen or more years unlawful residence. The refusal was on 18 April 2007. The respondent also concluded that removal to Bangladesh would not involve violating Article 8 of the European Convention on Human Rights.
4. The appellant appealed and his appeal was dismissed by Immigration Judge Abebrese on 26 June 2007. On 20 November 2007 Wilkie J ordered a reconsideration on the ground that the immigration judge had given inadequate consideration to Article 8. On 18 May 2008 the reconsideration came on before Immigration Judge Martin and she decided that while Immigration Judge Abebrese's consideration of Article 8 was cursory and amounted to an error of law, it was not a material error because it was inconceivable that any immigration judge would have allowed the appeal on Article 8 grounds.
5. It is helpful to have in mind the brief chronology in this case and to point out how it comes about that this appeal is taking place about fourteen years after the appellant's unlawful arrival in this country. He arrived in the United Kingdom in June 1995. The appellant gives little detail of when, where and how he arrived, and there was no evidence to support his account from any independent source that he came here in 1995 and had been here ever since; on the other hand nor there was there any evidence to suggest that he did not.
6. Since the commencement of this appeal before us we have been shown the appellant's statement which he confirmed in his evidence before the first immigration judge, and it was his case that his activities and documentation were sufficient for the inference to be drawn that indeed he did come to this country in 1995. I shall return to that question shortly.
7. The appellant was born on 29 December 1980 and so he was about fourteen and a half at the time that he came here, although it seems to have been assumed by everybody that he was in fact fifteen but it has been pointed out that his true age if he arrived in June 1995 would have been fourteen and a half. Something approaching three years after his arrival he became eighteen. There then followed a gap of about six years until at the age of twenty three and a half he sought to regularise his position by asking for leave to remain on 30 June 2004. It then took the Home Office two and three quarter years to deal with his application. Eventually they refused it on 19 April 2007. There is said to have been one letter of enquiry on his behalf in the meantime as to what was happening to his application, and that is said to have been in or about February 2005. The 21 months or so from April 2007 have been taken up with the appeal process.
8. In the Home Office refusal letter it was pointed out that the appellant had provided no evidence to substantiate his claim that he arrived in the United Kingdom in 1995 and had been here ever since. The Secretary of State accepted that he may have established a private life but it was in the context that he was liable to be removed at any time. Any interference with it was necessary and proportionate in the wider interests of the maintenance of immigration policy, and accordingly his Article 8 claim failed.
9. The first immigration judge summarised the appellant's evidence at paragraph 7 at page 39:

"He entered the United Kingdom in June 1995 at the age of 15 [we now know that that was fourteen and a half]. He is unable to provide any documentary evidence confirming how he arrived and also when he arrived in the United Kingdom. He claims that he did not come to the United Kingdom on his own free will and that it was with members of his family who decided to send him to the United Kingdom for a better life. He claims that when he first arrived he was not fully aware of the circumstances which he was now in and he was advised by the family members around him to stay away from the authorities, in particular the family who brought him to the United Kingdom. He never attended the British High Commission in Bangladesh for any visa. He noted that there were many Indian Bangladeshi restaurants in the United Kingdom run by Bengali-speaking people. He did not have any language difficulties and was able to secure accommodation in one of these restaurants in return for his labour and pocket money. In 1995 through a friend he made an application for a Bangladeshi passport and this was issued to him on 6 November 1995. Using this passport and his address he was able to open a bank account at the beginning of 1996. He then also began attending college from 2001 and he continued to work at the Indian restaurant whenever he was able to find employment. The appellant claims that he has been resident in the United Kingdom from 1995. The [respondent] disagrees with this and [the appellant] contends that the fact that he has produced his original passport and bank book is sufficient evidence of him being in the United Kingdom since 1995. He has never been out of the United Kingdom and he has never made any claims on public funds or committed any act against the state

8. He purchased property in Birmingham in 2001 from his savings and he was able to put down a deposit of £3,000. When he left his country his parents were already aged and they have subsequently died. He had a younger brother who is now living in Dubai. He does have occasional contact with him. The basis of his appeal is therefore that he has lived in the United Kingdom since the age of [14 and a half], and that he has established ties in the United Kingdom. He has many friends in this country with whom he enjoys regular contact…"

10. The first immigration judge found that the appellant had not been able to show when he arrived here or that he was fifteen (or, as we now know, fourteen and a half) at the time that he did. He further found that he did not believe that the appellant had no family in Bangladesh or the reasons that he had given for leaving Bangladesh. He cursorily dismissed the Article 8 claim, saying that even if Article 8 was engaged interference would be reasonable and proportionate. He could go back to Bangladesh and make a claim for entry clearance from there. He speaks the language fluently. There are no insurmountable obstacles, and there must be other members of his family in that country with whom he could make contact.
11. There is no doubt that the first immigration judge's assessment of the Article 8 claim was flawed in a number of respects. He did not apply the various criteria set out in the case of Razgar [2004] UKHL 27. He was mistaken about the possibility of making a claim for entry clearance from Bangladesh, a point pointed out by the second immigration judge, and in addition to that he made in my judgment two findings of fact that were on examination unsustainable. The first finding of fact related to his not being satisfied that the appellant had been here since 1995, and the second finding of fact related to the appellant having family members in Bangladesh.
12. There was before the immigration judge simply the evidence of the appellant, tested in cross-examination and uncontradicted by any other evidence. As to the time that he arrived in this country, the appellant was able to support his account by references to opening bank accounts and so forth, so there was some documentary support.
13. Wilkie J ordered reconsideration on the basis that the Article 8 claim had not been properly considered, and plainly it had not because the judge did not go through the step by step approach required in Razgar.
14. The grounds of appeal also took issue with the two findings of fact to which I have referred. The appropriate test in Razgar, the step by step approach that is appropriate, is referred to in paragraph 7 of Lord Bingham of Cornhill's speech in EB (Kosovo) v SSHD [2008] UKHL 41. It runs thus:

"In a case where removal is resisted in reliance on article8, these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"

In practice, both the fourth and fifth questions, said Lord Bingham in EB Kosovo, are usually and unobjectionably taken together.

15. The second immigration judge, Immigration Judge Martin, did go through the Razgar approach. At paragraph 24 she said:

"24. In this case the answer to the first of the questions posed by Razgar is certainly yes.

25. The answer to the second of the questions posed by Razgar is likely to be no. The consequences of removal for this Appellant are that he is a healthy 24-year old, with the benefit of a British education and substantial assets in the form of property. He will be returning to a country where he lived until the age of 15, where the Immigration Judge found he is likely to have extended family and where he will have no difficulty setting himself up. He remains fluent in the language. It is difficult to see that his removal will have consequences of such gravity as to engage the operation of Article 8. However, it has been established that the threshold for engaging Article 8 is low and I shall therefore give the Appellant the benefit of the doubt and find Article 8 is engaged and go on to consider the remaining questions."

And then she did.

16. It is plain that the second immigration judge had some hesitation in concluding that Article 8 was engaged on the facts of this case, and in the course of that hesitation she appears to have, on the face of it, accepted the first immigration judge's finding that the appellant is likely to have extended family in Bangladesh.
17. I referred a moment or two ago not only to that finding of fact which in my judgment was unsustainable on the evidence but also the other finding that was unsustainable, namely the disagreement of the first immigration judge that the appellant had indeed been here since 1995. At no point does the second immigration judge tackle these findings of fact head on and deal with them, no doubt for the reason that her attention was really directed primarily to the Razgar questions and the applicability of Article 8. It is plain, however, that she proceeded with her redetermination throughout on the basis that the appellant had indeed been here since 1995, and plainly by implication she on that point disregarded the first immigration judge's findings of fact.
18. Having given the appellant the benefit of the doubt on the engagement of Article 8(1), the second immigration judge then went on to consider the remaining Razgar questions. She did so in the context of what she had said earlier in her judgment at paragraph 15:

"I found that the error of law made by the Immigration Judge is not material because it is inconceivable that any Immigration Judge would have allowed the appeal on Article 8 grounds on the facts for the following reasons."

That paragraph begs the question of on what facts, and in particular whether the facts included or did not include the erroneous findings of fact in the two respects made by the first immigration judge. But at paragraph 24, having decided that the answer to the third Razgar question was clearly yes, that the appellant's removal would be lawful, she went on to say this:

"That leaves the fourth question and an assessment of proportionality; whether it is proportionate in the interests of maintaining immigration control to interfere with the Appellant's private life that he has established in the UK. This is a balancing exercise. On one side is public policy to remove persons with no right to be in the UK and who cannot meet any of the Immigration Rules. That carries considerable weight. Also on that side of the balance is the fact that this Appellant did nothing to regularise his position for nine years and thereafter acquiesced in the Home Office delay in reaching its decision. On the other side of the balance is the fact that the Appellant has become accustomed to and would have settled into life in the UK. He has no doubt made friends. He has committed no crimes, claimed no public funds (other than the cost of education and healthcare), he has worked and purchased a property. I have no difficulty in finding on this basis that it is proportionate to remove this Appellant. For the reasons I have indicated in paragraph 18 and 19 above there is absolutely no reason why this Appellant cannot be expected to return to Bangladesh. Indeed, he will be returning as an educated man of substance and in a far better position than many of his compatriots."

19. Mr Daniel Coleman, who has appeared for the appellant, focuses on paragraph 28 and says that a startling omission in the balancing exercise is that there is no reference to whether or not the appellant has an extended family in Bangladesh, to which the judge had earlier referred in paragraph 25. Mr Coleman submits that the implication is that the judge, having referred to there being an extended family in the previous paragraph, that that was still in his mind and that he, accordingly, by implication, did take it into account in the balancing exercise in paragraph 28.
20. The point does not entirely end there because there is the other side of the argument that there is no reference to this in the balancing exercise in paragraph 28 and therefore the implication is the opposite, that the judge did not take it into account. However, it seems to me that on the facts of this case it was a consideration in the balancing exercise whether the appellant did or did not have some family still in Bangladesh, and this point is left open by the second immigration judge. Mr Coleman submits that that is fatal to this redetermination by Immigration Judge Martin. The balancing exercise was not conducted properly. There is no alternative. That is not only an error of law but a material error of law. The case must go back for reconsideration.
21. Ms Lisa Busch's response for the Secretary of State, first, is that she does not accept that it is an error of law at all, and secondly, if the court is against her on that, that it was such a small pebble in the balancing scales that it could not possibly have made any difference. In my judgment this is a matter to which it would have been appropriate for Immigration Judge Martin to have referred and taken into account in the balancing exercise, but in the context of this case as a whole it seems to me that it is of very little significance indeed. The history of this appellant shows that he is a man in his mid-twenties who has survived very well on his own for a number of years in this country. He is resourceful and does not let the grass grow under his feet and has not set down any very firm roots in any one place, moving from place to place with regard to bettering himself, the one firm root that he has, being the property that he has purchased in Birmingham. There is in my judgment no reason to suppose that he will have any particularly great difficulties in settling down on his own in another country such as Bangladesh, even in the event that there is no extended family who might be able to help him in a way that has never been particularised in the decisions of the court.
22. This is a case where there is a considerable element of delay. It is in my judgment a case where Article 8, on the basis of private life, not family life, I would emphasise, is engaged, but it is far from the strongest case on private life. The appellant is single, as I have said, in his mid twenties, and he has survived successfully in this country for nearly fourteen years but his roots do not have the kind of depth that they might have done were he, for example, married with children. It is true that the delay has helped him to establish his private life, but the first eight and a half years of it were, to a considerable extent, it seems to me, self-imposed. Even if one excludes the first period of approaching nearly three years when he was a minor, there was still a period of six years when he remained in this country with absolutely no right to be here and made no attempt to regularise his position.
23. The real relevance of delay in this case is in what Lord Bingham described as the third category of possible relevance, in his speech in EB Kosovo. He had this to say at paragraph 14:

"It does not, however, follow that delay in the decision-making process is necessarily irrelevant to the decision. It may, depending on the facts, be relevant in any one of three ways. First, the applicant may during the period of any delay develop closer personal and social ties and establish deeper roots in the community than he could have shown earlier. The longer the period of the delay, the likelier this is to be true. To the extent that it is true, the applicant's claim under article 8 will necessarily be strengthened. It is unnecessary to elaborate this point since the respondent accepts it."

Well the delay plainly was relevant in that way in the present case. Lord Bingham went on at paragraph 15:

"Delay may be relevant in a second, less obvious, way. An immigrant without leave to enter or remain is in a very precarious situation, liable to be removed at any time. Any relationship into which such an applicant enters is likely to be, initially, tentative, being entered into under the shadow of severance by administrative order. This is the more true where the other party to the relationship is aware of the applicant's precarious position."

This is not a case where there is any other party. The applicant has throughout been on his own. And then at paragraph 16:

"Delay may be relevant, thirdly, in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes. In the present case the appellant's cousin, who entered the country and applied for asylum at the same time and whose position is not said to be materially different, was granted exceptional leave to remain, during the two-year period which it took the respondent to correct its erroneous decision to refuse the appellant's application on grounds of non-compliance."

The only culpable delay in the case of the respondent in this case, if indeed it can be categorised as culpable delay, is in relation to the three-and-a-half-year period that it took the Secretary of State to determine the application. That period is small, and indeed very small compared to the earlier period that had already passed since the appellant arrived in this country. In my judgment this is not a case where anything has happened that has caused the appellant to lose a right during a period of delay by the Secretary of State or whereby his position has been in any way prejudiced by some intervening event.

24. I then return once again to the final issue of the proportionality exercise. True it is that this is a case where Article 8 was engaged, but only in respect of the appellant's private life and in the manner that I have described. It is a very strong factor to the contrary that the immigration laws of this country should be complied with. Concessions are available in respect of those who have been here for ten years lawfully and even unlawfully if the period exceeds fourteen years. This appellant does not come within either of those categories. The sole question was and is whether it would be a violation of his Article 8 rights for him to be returned now to Bangladesh. In my judgment the answer to that question is so overwhelmingly clear that even though the second immigration judge made what I would classify as a minor error in paragraph 28 of her determination, and it was an error of law, it would not in all the circumstances in my judgment qualify as a material error of law. I would therefore dismiss this appeal.

Lord Justice Ward:

25. I agree

Lady Justice Smith:

26. I am afraid I also agree.

Order: Appeal dismissed