COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THOMAS
LORD JUSTICE MOORE-BICK
| TK (Burundi)
|- and -
|Secretary of State for the Home Department
Mr Alan Payne (instructed by Treasury Solicitor) for the Respondent
Hearing date: 10 December 2008
Crown Copyright ©
Lord Justice Thomas:
The initial determination
i) He had started to work in the United Kingdom in 1997; since 2000 he had been working for the NHS; it was anticipated he would complete his staff nurse training by December 2005.
ii) He had had a relationship with Miss Mutoni (who had been born in Rwanda) and they had a daughter who was born on 11 February 2004. He saw her frequently and regularly, three times a week for periods of three to four hours at a time. He had since separated from his daughter's mother but he supported both financially.
There was no independent evidence in relation to Miss Mutoni or her daughter. The Adjudicator concluded without such evidence he could not make substantial findings in the appellant's favour. He concluded, however, that although 20 months of delay had been due to the appellant's solicitors, the remaining delay was caused by the Secretary of State and attached to this last very considerable weight. He decided the appellant should not be removed, as it would constitute a disproportionate interference with his right to a private life.
The hearing before Immigration Judge Scobie
i) He did not live with his first daughter because he did not have a good relationship with her mother, Miss Mutoni; however he saw that daughter regularly.
ii) He had a current partner and a daughter born 16 March 2007 (about a month before the hearing). The evidence in respect of this partner was recorded as, "Tailynne's mother's asylum application is somewhere in the system". The appellant did not live with his daughter or his current partner, but they visited him on a frequent basis; his evidence was that they proposed to move in with him very shortly and hopefully they would get engaged.
However, no statements were provided from either of the mothers nor was there any written evidence of any financial contribution made. The appellant's explanation for this was that his relationship with the mother of his first daughter was not particularly good and she did not wish to become involved in matters relating to his immigration status. If he had pushed the matter he was frightened he would lose contact with his daughter which had been freely given by the mother. As regards his current partner, "he had not been asked to bring her along or to get evidence from her". At the hearing the Secretary of State disputed the strength of the family life presented by the appellant and relied on the absence of written statements and other evidence to which I have referred.
i) The Judge concluded there was no doubt the appellant had made a private life for himself in the UK and, regardless as to the views that he had as to the strength of the appellant's family life, the appellant did have a family life with which his proposed removal would be an interference.
ii) He found that Miss Mutoni, the mother of the first daughter, had indefinite leave to remain; his present partner had made an asylum claim, "and the best information I had was that it had not been finally resolved". It would be extremely difficult for the appellant to keep in touch with his family from Burundi and he would lose his job. He therefore concluded that Article 8 was potentially engaged.
iii) After dealing with the third and fourth questions in Razgar (which were common ground) he turned to the fifth question as to whether the interference was proportionate in pursuit of the aim of having in force an effective immigration control policy. He concluded that on balancing the following factors that the balance came down in favour of the appellant's removal:
a) The appellant had been in the UK for a number of years. There had been significant delay in dealing with his application. That had assisted him in building a private and family life in that he had an important job and two daughters. However, against him was the fact that there was a complete absence of evidence from the mothers of the two children; they had neither given oral evidence nor provided statements.
b) He did not consider that the explanations I have set out in relation to the absence of supporting evidence were satisfactory. As regards Miss Mutoni, the mother of the appellant's first daughter, whilst he could understand the reluctance of the mother to get involved in an immigration issue he considered it would have been relatively straightforward for her to sign a statement and found it difficult to understand her reluctance in circumstances where if the appellant were returned to Burundi she would lose £150 per month which he contributed towards his daughter's upkeep. As regards the appellant's current partner, he concluded as follows:
"I found the appellant's reason for absence of evidence or a witness statement totally unacceptable. The appellant has been represented by legal representatives for some time who have done a very thorough job in connection with the case. To suggest that his partner is not here and did not give a statement because nobody mentioned the benefit of having her do so is in my mind totally lacking in credibility."
c) There was no independent evidence as to the money which the appellant claimed to put towards their keep. There was nothing about this apart from his own word. Although he had had the benefit of legal advice it was inconceivable that his legal representatives would not have understood the benefit of having documentary evidence relating to finances.
iv) All of these factors went to the strength of the relationship with his daughters. He concluded that in the light of what he had set out, "the appellant's family life was not as strong as he indicated".
v) He also referred to further matters counting against the appellant, including the fact that he had developed his family life in the UK in the full knowledge of his uncertain status.
vi) He concluded that, although the appellant would suffer from losing his job and he would suffer to some degree from any contact he had with his children, nonetheless the balance came down in favour of his removal.
The service of further materials by the Secretary of State
The submissions of the appellant on the appeal to this court
i) Immigration Judge Scobie had not properly applied the law as laid down in Razgar (and the guidance of Lord Bingham at paragraph 20 as to the way in which the question of proportionality should be approached) and in Huang at paragraphs 14-15 and 19-20. If the Judge had done so he would have considered the evidence with more care and made clear findings of fact. He should have made proper findings on the level of family life and not merely left the position as he had done. It was also wrong in the circumstances for the Judge not to have accepted the appellant's evidence and explanation for not providing statements. He had speculated about the evidence that might have been before him instead of concentrating on the evidence that was actually before him. He should have assessed the appellant's credibility in the light of that. He had been wrong to place the emphasis he did on the evidence in relation to the finances; he should have followed the guidance given by Baroness Hale of Richmond in Beoku-Betts v SSHD  UKHL 39 at paragraph 4 where she stated that the central point about family life was that the whole was greater than the sum of its parts. The Immigration Judge's reliance on what the former partner might have done to assist the appellant was misplaced. He had no control over her. The effect of the approach of the judge had been erroneous in law and had prejudiced his consideration of the appellant's case.
ii) The Immigration Judge had failed to follow the Strasbourg Jurisprudence. There had been no references at all to Strasbourg Jurisprudence in the decision.
The weight to be attached to the evidence of the appellant and the findings on family life
i) The rejection by Mr Martineau of the appellant's case on asylum where he had not been believed.
ii) The reference by Mr Martineau as to the lack of independent evidence of the status or plans of the mother of his first daughter and his express statement that he could not make substantial findings in the appellant's favour about her.
iii) The opportunity afforded to the appellant by the delay that had occurred dealing with his asylum claim. It was clear from the decision in February 2007 that it was expected that he would have further evidence to support his claim.
iv) When the matter came on before Immigration Judge Scobie in April 2007, the appellant was represented, as the determination makes clear, by experienced and competent counsel. There can be little doubt that the judge had well in mind the background to which I have referred and the need for the appellant to produce some independent evidence to support his claim in respect of family life.
The further evidence of the appellant served on 11 December 2008
No other error of law
Lord Justice Moore-Bick:
Lord Justice Waller: