COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
AS/00321/2007 AND AS/00322/2007
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE WILSON
| 1. VW (UGANDA)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
2. AB (SOMALIA)
- and –
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr R Drabble QC and Miss A Smith (instructed by Messrs Clifford Johnston & Co) for the Second Appellant
Miss L Busch (instructed by Treasury Solicitors) for the Respondent
Hearing date: Friday 14 November 2008
Crown Copyright ©
Lord Justice Sedley :
"While neither parent felt comfortable choosing a fate for [the daughter], they both agreed that she would be safer to remain in England with her father. They believe the risks in her moving to Uganda would be too high. However, they both stressed their belief that separating [her] from her mother, who is a significant attachment figure to her, would destabilise her and could contribute to long-term issues for her in the future."
(a) That the AIT made a material error of law by using an 'insurmountable obstacles' test of proportionality. The correct test of proportionality requires a comprehensive evaluation of what can reasonably be expected of the appellant in the light of the values protected by art.8
(b) That in weighing the factors relevant to proportionality the AIT failed to evaluate the impact of removal on the family life of VW's partner, a British citizen who had never been to Uganda, and on the child if – as the appellant indicated would happen – she was left here with her father.
(c) That, contrary to the finding of the AIT, it was for the Home Secretary to establish the justification for removal.
"Thus the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires."
"(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?
The two cases in the AIT
"89. I have found it not to be proved that there are insurmountable obstacles to the whole family living together in Uganda and I have found it proved that the appellant's partner was aware of the appellant's uncertain immigration status during the course of their relationship. I have found that it would be open to the appellant to seek entry clearance from Uganda to enter the United Kingdom as a fiancée or unmarried partner of Mr Adeyemi Olusegun Oyenuga. I note the private life which had developed in this country in the years that the appellant has been here. I also note the delay in the respondent reaching his decision on the appellant's application for further leave to remain but I note from the judgment of the Court of appeal in HB (Ethiopia)  EWCA Civ 1713, that delay in dealing with an application might increase an appellant's ability to demonstrate family or private life bringing her within Article 8(1) but, although it may be a relevant factor under Article 8(2), it would have to have very substantial effects if it was to influence the outcome. I do not find it proved that any delay there has been has prejudiced the appellant so as to have a substantial effect upon her claim. As regards the second question posed by Lord Bingham in Razgar, I am only concerned with Article 8(1).
90. Even though the threshold of engagement of Article 8(1) is not a specially high one, I find, given my findings above on whether there are insurmountable obstacles to the family living together in Uganda and the ability to seek clearance from Uganda, that the proposed interference by the respondent would not have consequences of such gravity as potentially to engage the operation of Article 8.
91. If, however, Article 8 is engaged, I go on to consider the other steps set out by Lord Bingham. I would answer the third and fourth questions in the affirmative as it is settled that this country has the right under internal law to control the entry of non-nationals into its territory and the effective enforcement of immigration control is a legitimate aim under Article 8(2).
92. The fifth and final question is whether the proposed interference by the respondent is proportionate to the legitimate aims of the respondent. "
"In this present case, I have found it not to be proved that the life of the family could not reasonably be expected to be enjoyed in Uganda. Even so [sic], I do not find it proved that the respondent's decisions do prejudice the family life of the appellants in a manner sufficiently serious to amount to a breach of the fundamental rights protected by article 8."
"Hence only around 15 of his 45 years had been spent in the UK and he has lived over 25 years in another African country (Nigeria)."
If this means no more than the appellant's partner, although a UK citizen, had not made the UK his home for much of his life, it is correct and unexceptionable; but it carries an unfortunate suggestion that one African country is very much like another, paying no regard to such things as language or culture.
"I take into account that the Sponsor has been granted Indefinite Leave to Remain in the United Kingdom but I am not persuaded by the evidence given that there are insurmountable obstacles or serious difficulties to the Appellant, Sponsor and their family establishing a family life in either Ethiopia or Somalia. I do not accept that the Appellant has shown that there would be anything more than a degree of hardship in establishing family life in either country (VW and MO – Article 8 Insurmountable Obstacles) Uganda  UKAIT 00021.)"
Back to the future
"Whether she were to be separated from her mother or her father, the secure and comfortable lifestyle her parents have created for [the child] would be taken from her. The fate of her mother would be unknown and her father would be left to readjust to life as a single protective parent, whilst dealing with his own issues of loss and concern for his partner."
Even when this is discounted for the adverse asylum finding, it is a telling passage.
"I also note from Mahmood that the removal of one family member from this country where other members of the family are lawfully resident will not necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even when this involves a degree of hardship for some or all members of the family. In this particular case, I have found that the appellant would not be on risk on return to Uganda. I note what is said by Ms Finlayson in her report and that M has a need to remain in the close proximity of both parents to whom she is securely attached. I note the fears of both the appellant and her partner, as expressed to Ms Finlayson and at court, about the conditions in Uganda for M. I do note, however, that M is very young and the respondent is not seeking to separate the appellant from her and whilst I take full note of what is said by Ms Finlayson, I do not find it proved that M would suffer harm if she traveled to Uganda with her mother. There was evidence before me of what was said to amount to insurmountable obstacles to the family living together in Uganda, but I find the obstacles put forward by the appellant's partner to be largely unresearched. He says he fears there the health, culture, health and safety, the disease, and the people the appellant mixed with there. Some of his knowledge of East Africa is simply based upon what he has heard in a pub in Edmonton. He is unemployed and there is no medical evidence before me as to why he could not live and be employed in Uganda. I have found it not proved that it would be unsafe for the appellant in Uganda. I do not find it proved that there are indeed insurmountable obstacles to the family, being the appellant, her daughter and her partner, living together in Uganda, even though this would indeed involve a degree of hardship for some or all member of the family."
But, unlike the determination in AB's case, this passage leaves open and unexamined the critical area between the want of any insurmountable obstacle and a degree of hardship.
Lord Justice Wilson:
Lord Justice Mummery: