QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
(on the application of)
(1) VARAJANIKANT NARANBHAI PATEL
(2) SHAVIKUMAR VARAJANIKANT PATEL
(3) DHRUKUMAR VARAJANIKANT PATEL
(4) SONALBEN VARAJANIKANT PATEL
|- and -
|UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
The Defendant did not appear and was not represented
Andrew Deakin (instructed by The Treasury Solicitor) for the Interested Party
Hearing date: 17 May 2012
Crown Copyright ©
Mr Justice Wyn Williams:
"30. The body of evidence before me demonstrates that the Appellants have established 'private life' in the UK in the long years they have been here without leave. However, I do not find that their removal, as a family of four, is an interference with their rights under Article 8.
31. I next turn to other four steps and consider both 'family life' and 'private life' aspect of Article 8. The first of the remaining four starts with B if so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8? The answer is again in the negative for reasons set out in preceding paragraphs."
"(1) The Immigration Judge's consideration and conclusion that the Appellants' removal did not engage Article 8 and would not amount to an interference with their rights is arguably perverse;
(2) The Immigration Judge failed to properly or at all consider that the second and third appellants had remained in the United Kingdom for a considerable period of time as children."
"The Second and Third Appellants are both adults and the case law with respect to children is therefore not relevant. The Immigration Judge was plainly aware of the factual matrix underpinning their claims."
She also said that the assessment of proportionality was a matter for the Immigration Judge and "absent a misdirection in law" that assessment would not be overturned by an appellate authority.
"The Immigration Judge was correct to suggest that the ECHR in Nnyanzi v The United Kingdom – 21878/06  ECHR 286 did not find that the appellant's accountancy studies, church activities and an unspecified friendship with a man in the United Kingdom during her ten year stay constituted private life within the meaning of article 8 but this was only because the Court felt that it was unnecessary to do so since it found, on the hypothesis that they did, that the appellant's removal would not amount to a disproportionate interference with her article 8 rights. In the present case although it is arguable that it was an error of law for the immigration judge not to find article 8 engaged in respect of the appellants' private lives, nonetheless the immigration judge went on to consider the remaining steps as per the opinion of Lord Bingham in Razgar, R (on the application of) v Secretary of State for the Home Department  UKHL 27 which included the issue of proportionality. The immigration judge took account of the fact the second and third named appellants had been in the United Kingdom since they were 11 and 15 years old respectively. They were adults at the date of the hearing and the immigration judge was not required to have regard to their best interests. He did not hold it against them that they had remained in the United Kingdom unlawfully. That they had done so was clearly the case and a factor to be taken into account. He specifically considered the opinion of the House of Lords in EB (Kosovo) v Secretary of State for the Home Department  UKHL 41 and the relevance of the delay of the respondent as paragraphs of the determination 38, 39 and 40 show. The grounds amount to an attempt to re-argue the merits of the appellants' appeal but they do not disclose an arguable error of law in the determination of the appeals."
"35. Judicial guidance in the leading case of Uphill emphasised the narrowness of the exception. The prospects of success should normally be "very high" or (as it was put in Cart para 131) the case should be one which "cries out" for consideration by the court. The exception might apply where the first decision was "perverse or otherwise plainly wrong", for example because inconsistent with authority of a higher court. Alternatively a procedural failure in the Upper Tribunal might make it "plainly unjust" to refuse a party a further appeal, since that might, in effect, "deny him a right of appeal altogether". In Cart Lord Dyson, following Laws LJ, characterised such a case as involving "a wholly exceptional collapse of fair procedure" (para 131). Similarly, Lord Hope in EBA referred to cases where it was "clear that the decision was perverse or plainly wrong" or where, due to some procedural irregularity, the petitioner had not had a fair hearing at all".
36. It is true that Lady Hale and Lord Dyson in Cart acknowledged the possible relevance of the extreme consequences for the individual. However, as we read the judgments as a whole, such matters were not seen as constituting a free-standing test. In other words "compelling" means legally compelling, rather than compelling, perhaps from an political or emotional point of view, although such considerations may exceptionally add weight to the legal arguments."
"a) will the proposed removal be an interference by a public authority with the exercise of the Appellant's right to respect for his private or family life?; b) if so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?; c) if so, is such interference in accordance with the law?; d) if so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic wellbeing 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?; and e) if so, is such interference proportionate to the legitimate public end sought to be achieved?"
There can be no doubt that if the Immigration Judge lawfully applied questions 3, 4 and 5 it would matter not that he had, arguably, fallen into error in his assessment of the first two questions.