EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Osborne Lord Reed Lord Hardie	[2009] CSIH 30 XA92/07 OPINION OF THE COURT delivered by LORD REED in the Application for Leave to Appeal under Section 103B of the Nationality Immigration and Asylum Act 2002 by K.B.O. Applicant: against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______

For the Appellant: Bovey, Q.C., Forrest; Drummond Miller

For the Respondent: A. F. Stewart; Solicitor to the Advocate General

1 April 2009

Introduction
[1] The appellant is a national of Ghana. On 2 December 2005 he applied to the respondent for indefinite leave to remain in the United Kingdom, under section 3(1)(b) of the Immigration Act 1971. On 16 February 2006 the application was refused. The appellant appealed against that decision to the Asylum and Immigration Tribunal, under section 82 of the Nationality, Immigration and Asylum Act 2002 as amended ("the 2002 Act"). The appeal was brought on the ground that the decision was unlawful under section 6 of the Human Rights Act 1998, as being incompatible with the appellant's Convention rights under Article 8 of the European Convention on Human Rights. The appeal was heard by an immigration judge. On 10 April 2006 she allowed the appeal. The respondent then applied under section 103A of the 2002 Act for an order requiring the Tribunal to reconsider its decision on the appeal. That application was decided by a senior immigration judge, in accordance with the procedure set out in Part 2 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 ("the 2004 Act") and Part 3 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005 No. 230) ("the Procedure Rules"), as amended. On 2 May 2006 the senior immigration judge ordered the Tribunal to reconsider its decision on the appeal, on the grounds set out in the respondent's application notice. The appeal was reconsidered by a senior immigration judge and a designated immigration judge: we shall refer to them, for convenience, as the senior immigration judges. On 23 April 2007 they decided that the original Tribunal (i.e. the immigration judge) had made a material error of law, and substituted a fresh decision dismissing the appeal. The appellant then applied for permission to appeal to this court under section 103B of the 2002 Act. Permission having been refused by the Tribunal, he applied to this court, which heard his application for permission together with the appeal itself.

The background circumstances
[2] The background circumstances are not in dispute and can be summarised as follows. The appellant was born in Ghana in 1982 and came to live in the United Kingdom with his parents in 1983, when he was one year old. His father was at that time a student in the United Kingdom. The family lived in Norwich, where the appellant went to primary school. In 1988 the family returned to Ghana. In 1994 they came back to the United Kingdom, as the appellant's father was undertaking further studies at the University of Strathclyde. They lived in Glasgow, where the appellant went to secondary school. In due course he passed his Highers and obtained a place at Glasgow Caledonian University to study Business Economics. He also developed a strong interest in music while at school. His father had by that time returned to Ghana, leaving the appellant and the other members of the family in Glasgow. The appellant's father disapproved of his involvement in music and refused to allow him to take up the place at Glasgow Caledonian, insisting that the appellant should instead return to Ghana and study there. In compliance with his father's wishes, the appellant returned to Ghana in 1999 and studied Economics and Psychology at the University of Accra, graduating in 2002. Apart from a visit to Glasgow of about two months' duration during 2002, he remained in Ghana until February 2004, when he returned to the United Kingdom on a working holiday-maker visa under which he was permitted to study. He obtained a place at the University of Strathclyde to study for an MSc in Business Economics, and returned to Glasgow. He graduated in November 2005. In December 2005, shortly before his visa was due to expire, he sought leave to remain in the United Kingdom, as we have explained. He was then 23 years of age, and had spent slightly more than half his life living in the United Kingdom. He has remained in the United Kingdom since making the application.

[3] In the material which he submitted to the immigration judge, the appellant founded on three matters in particular. One was the extent to which his social life was based in the United Kingdom. He maintained that he had spent the formative years of his life in the United Kingdom and had much stronger ties to this country than to Ghana. His closest friends were those he had made at school in Glasgow. He felt that this country was his home. The second matter was the extent to which his aspirations to pursue a career in the music industry depended on his remaining in the United Kingdom. He explained that, during his time at Strathclyde University, he had become involved with an organisation known as Urban Scot, which provided a platform for performances by young musicians and assisted with marketing and artistic development. Songs which he had written and produced had been played on several national radio stations. He had performed at concerts in several of the United Kingdom's largest cities. He had embarked upon the process of establishing an independent record label. He believed that he could contribute to British society. Thirdly, he had formed a close relationship with a young woman who was a student at the Heriot-Watt University. She was a national of Zimbabwe, but had been settled with her family in the United Kingdom since she was a child and had indefinite leave to remain here. They hoped to marry, but the appellant was awaiting the outcome of the appeal before asking her parents' permission. He expressed the fear that he would lose his home, his opportunity to pursue a career in the music industry and his relationship with the woman he wishes to marry, if he was forced to leave the United Kingdom.

The decision of the immigration judge
[4] As we have explained, the immigration judge decided, after hearing evidence, that the refusal of the appellant's application for indefinite leave to remain was incompatible with his Convention rights under Article 8. She stated her reasons as follows:

"14. ... This is an unusual and unique case where this Appellant has spent over half of his life in the United Kingdom. He has lived in the United Kingdom from aged 1 to 6 and then from 12 to 17. He came back when he was 20 and then from aged 22 to date. His formative years have been spent in the United Kingdom. During these periods of time in the United Kingdom he has led an exemplary life. He has studied hard and has made and established long lasting friendships. I believe that the Appellant living and studying in the United Kingdom during his formative years has made him used to the culture in the United Kingdom to the extent that he feels his home is more in the United Kingdom as opposed to Ghana. In fact in the Appellant's evidence he refers to being homesick for his life in Glasgow.

15. I can see from his immigration history that he did not wish to return to Ghana but had to because it was his father's wish. His father did not want the Appellant to continue with his music and the Appellant has used legitimate ways of returning to the United Kingdom at every opportunity to do so to continue to live in the United Kingdom. He continued to study so that his father would pay for this and allow him to come back to the United Kingdom but at the same time he was able to follow his love of music.

16. Whilst I note and accept that the Appellant is highly educated, versatile and intelligent and could return to Ghana, I believe that this Appellant in these particular and unusual circumstances has established a private life in the United Kingdom. His father is presently living in Tunisia. His parents are separated. When he was at University in Ghana he lived apart from his parents for two years because of the ongoing dispute he had with his parents about the division of his time between his music and his studies. Now, he has his mother's full support to continue his music career in the United Kingdom. Throughout the Appellant's evidence his love of music has been a constant theme. He has the opportunity in the United Kingdom to progress his music career. I note the Appellant has set up contacts and arranged his business plans in the United Kingdom, but I believe this would not be available to him in Ghana. I also note that the Appellant has a girlfriend and wishes to become engaged but does not wish to breach any immigration rules. I believe that whilst they could keep in contact if the Appellant were returned to Ghana their relationship would be difficult to continue. The Appellant has kept in contact with friends from his school days. He is familiar and comfortable with them.

17. Whilst I accept that the Respondent has every right to maintain immigration control and that a fair balance has to be struck, I believe in this particular case in terms of the case of [Huang v Secretary of State for the Home Department [2006] QB 1] the circumstances of this particular case are unique and I believe truly exceptional."

The decision of the senior immigration judges
[5] As we have explained, the senior immigration judges were ordered to reconsider the decision on the grounds set out in the respondent's application notice, namely:

"The IJ [immigration judge] failed to consider what the consequences of the interference in the appellant's private life would be, and as a result her finding that his Article 8 rights would be breached is fundamentally flawed. In addition the IJ has misdirected herself by finding the appellant's circumstances are truly exceptional when, on the facts and looking at his circumstances objectively, his is not an exceptional case."

In the event, neither of these contentions was upheld by the senior immigration judges; nor were they advanced before this court. In relation to the first, it is apparent (e.g. from paragraph 16 of her decision) that the immigration judge gave consideration to the consequences of the interference in the appellant's private life consequent on the refusal of his application. In relation to the second contention, it was noted by the senior immigration judges that it had been made clear by the House of Lords in Huang v Secretary of State for the Home Department [2007] 2 AC 167 that there was no requirement of exceptionality (contrary to the decision of the Court of Appeal, which had been cited to the immigration judge).

[6] The senior immigration judges concluded however that the immigration judge had erred in law by failing to address the second of the five questions posed by Lord Bingham of Cornhill in his speech in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 at paragraph 17:

"In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, 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?"

The senior immigration judges "assumed" that, in the case of the appellant, the first question was to be answered in the affirmative. That was also accepted by counsel for the respondent before this court. The senior immigration judges appear to have approached the second question on the basis that it imposed a stringent requirement. In that regard, they said:

"16. ... The question can be posed in terms of 'a minimum level of severity to engage the operation of the Convention'. In relation to mental health, this would mean 'something very much more extreme than relative disadvantage as compared with the expelling state' - per Lord Bingham at paragraph 10; cf. Lord Walker of Gestingthorpe at paragraph 32. Another statement of the approach to be taken is in the opinion of Lord Carswell at paragraph 72 -

'For the reasons given ... in ... R (Ullah) v Special Adjudicator [2004] 2 AC 323 article 8 could exceptionally be engaged by the foreseeable consequences for health of removal ... even though they do not amount to a violation of article 3. In order to bring himself within such an exceptional engagement of article 8 the applicant has to establish a very grave state of affairs, amounting to a flagrant or fundamental breach of the article, which in effect constitutes a complete denial of his rights.'"

The senior immigration judges then purported to apply that approach to the facts of the appellant's case:

"19. The Appellant has made a very good impression on those who know him in the United Kingdom. He made a similar impression on the Immigration Judge. However, a legal case to remain in the UK cannot be made out by academic qualifications, musical talent, character references and general personability. Nothing in Article 8 or in the European or domestic jurisprudence derived from it suggests that an appellant who has lived here for some years, attended school, and returned as a working holidaymaker might acquire a right not to be removed because of respect for his preference to develop his private life in the UK rather than in his country of origin and nationality. The consequence of being required to depart following expiry of his leave is that he has to make his private life in Ghana, where he has family and roots if not prospects which he finds equally attractive. He claims no seriously adverse consequences. His preference may be understandable, but it is no more than that ...

...

21. We note the case of MG (Assessing interference with private life) Serbia and Montenegro [2005] UKAIT 00113, which shows that sympathy for and admiration of an individual do not as such enhance or otherwise affect that person's rights under Article 8, and that errors of law can occur if fact-finders fail to address the second of Lord Bingham's five questions. The present case is another of that type.

22. ... Nothing in this case approaches the threshold of the Article 8 tests, because there are no adverse consequences of the necessary minimum level of severity."

[7] Before this court, counsel for the respondent adopted the reasoning of the senior immigration judges. The only contention advanced on behalf of the respondent, in relation to the merits of the appeal, was that the immigration judge had erred in her approach to Lord Bingham's second question, for the reasons given by the senior immigration judges.

Discussion
The jurisdiction of the senior immigration judges
[8] Before considering the merits of the decision of the senior immigration judges, it is necessary for us to consider a preliminary contention advanced on behalf of the appellant: that the jurisdiction of the Tribunal, on a reconsideration under section 103A of the 2002 Act, is confined to a consideration of the grounds on which the reconsideration was ordered. Reference was made in that regard to Miftari v Secretary of State for the Home Department [2005] EWCA Civ 481: a decision which was however concerned with the previous system of appeals from an adjudicator to the Immigration Appeal Tribunal.

[9] On the view which we have taken of the merits of the decision of the senior immigration judges in the present case, the question whether they had jurisdiction to consider an error of law which had not been identified in the order for reconsideration is not critical to our decision. We respectfully agree however with the reasoning of the Court of Appeal in DK (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1246 at paragraphs 20-21 per Latham LJ. An order under section 103A is one "requiring the Tribunal to reconsider its decision on the appeal". Such a procedure is not analogous to an appeal to a tribunal against the decision of another body, where the scope of the appeal is ordinarily defined by the grounds of appeal. The decision in Miftari is therefore distinguishable. One would not expect Parliament to have intended that the Tribunal, on reconsidering its earlier decision, should close its eyes to an apparent error of law merely because it had not been identified in the order for reconsideration: otherwise, as Latham LJ observed, the decision of the Tribunal following the reconsideration might itself be unlawful.

[10] That view is consistent with rule 31 of the Procedure Rules, which provides:

"(2) Where the reconsideration is pursuant to an order under section 103A-

(a) the Tribunal carrying out the reconsideration must first decide whether the original Tribunal made a material error of law; and

(b) if it decides that the original Tribunal did not make a material error of law, the Tribunal must order that the original determination of the appeal shall stand.

(3) Subject to paragraph (2), the Tribunal must substitute a fresh decision to allow or dismiss the appeal.

...

(5) In this rule, a 'material error of law' means an error of law which affected the Tribunal's decision upon the appeal."

In terms of rule 31(2)(a), the question to be decided by the tribunal is not defined by reference to the grounds on which the reconsideration was ordered, but is simply "whether the original Tribunal made a material error of law". It cannot have been intended, in our opinion, that the Tribunal should decide "that the original Tribunal did not make a material error of law", in terms of rule 31(2)(b), if such an error of law is apparent to it, even if the error is one which has been noticed for the first time during the process of reconsideration.

[11] We accordingly reject the contention that the senior immigration judges exceeded their jurisdiction.

The decision of the senior immigration judges
[12] The error of law which the senior immigration judges considered the immigration judge to have made consisted of a failure to address the second of Lord Bingham's five questions. It appears to us, however, that the immigration judge committed no such error, and that the senior immigration judges were themselves in error in relation to that matter.

[13] In paragraph 17 of his speech in R (Razgar) v Secretary of State for the Home Department, which we have already cited, Lord Bingham posed the five questions which, it was said, were likely to have to be answered by an adjudicator in a case where removal from the United Kingdom was resisted in reliance on Article 8. Subsequent judicial observations have shown that the precise formulation of these questions is not without difficulty (see e.g. AG (Eritrea) v Secretary of State for the Home Department [2008] 2 All ER 28 at paragraphs 21-28; VW (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 5 at paragraphs 22-23 per Sedley LJ). In particular, Lord Bingham's second question, on which the senior immigration judges focused in the present case, superimposed on the requirement that the proposed removal will be an interference with the exercise of the appellant's right to respect for his private and family life an additional requirement that the interference be "of such gravity as potentially to engage the operation of article 8". The gravity of the inference undoubtedly requires to be taken into account at the "balancing" stage with which Lord Bingham's fifth question is concerned. It is not however necessary to demonstrate that the interference is of particular gravity at the stage with which Lord Bingham's second question is concerned, namely the stage of deciding whether Article 8(1) is engaged. As was said in VW (Uganda) at paragraph 22:

"... the phrase 'consequences of such gravity' in question (2) posits no specially high threshold for art 8(1). It simply reflects the fact that more than a technical or inconsequential interference with one of the protected rights is needed if art 8(1) is to be engaged."

[14] We also note that the other judicial dicta which the senior immigration judges cited in their decision concerned "foreign" cases as defined by Lord Bingham in R (Ullah) v Special Adjudicator [2004] 2 AC 323 (at paragraph 9):

".... cases in which it is not claimed that the state complained of has violated or will violate the applicant's Convention rights within its own territory but in which it is claimed that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory will lead to a violation of the person's Convention rights in that other territory. I call these 'foreign cases', acknowledging that the description is imperfect, since even a foreign case assumes an exercise of power by the state affecting a person physically present within its territory."

In Ullah, the House of Lords held, having regard to the jurisprudence of the European Court of Human Rights, that:

"... reliance may be placed on article 8 in a foreign case where the applicant can show that removal will seriously interfere with his rights guaranteed by article 8 and such interference is not shown to be justified"

(per Lord Bingham at paragraph 18). Lord Bingham observed (at paragraph 24) that the question of justification under Article 8 depended on the striking of a balance between the right of the individual and the wider interests of the community, and that, in such cases, the removing state would always have strong grounds for justifying its own conduct. His Lordship approved of a dictum, in a decision of the Immigration Appeal Tribunal, that it was only where the treatment in the destination country would amount to a "flagrant denial or gross violation" of the Convention right that removal would breach the Convention.

[15] These matters were considered in greater detail in relation to Article 8 in Razgar, again in the context of a "foreign" case. It was in that context that Lord Bingham made the observation (at paragraph 10) with which Lord Walker of Gestingthorpe expressed agreement (at paragraph 32), in passages which were cited by the senior immigration judges at paragraph 16 of their decision. The dictum of Lord Carswell which the senior immigration judges cited at paragraph 16 of their decision, and the passage in the judgment of the European Court of Human Rights in Bensaid v United Kingdom (2001) 33 EHRR 10 which they cited at paragraph 17, were likewise concerned with "foreign" cases. These dicta appear to us however to have no relevance to the present case. As Lord Bingham observed, a person wishing to resist an expulsion decision in a "foreign" case on the basis of Article 8 would have to show more than that his medical treatment or welfare in the destination state would be less advantageous than in the United Kingdom; but, in the present case the appellant is not seeking to argue that his Convention rights will be violated in Ghana because he will enjoy less advantageous circumstances there than in the United Kingdom: his complaint is that his right to respect for his private life within the United Kingdom has been violated by the respondent's decision.

[16] A person resisting removal or expulsion in a "foreign" case in reliance on Article 8 will not succeed unless he runs a real risk of a flagrant denial of that right: EM (Lebanon) v Secretary of State for the Home Department [2008] 3 WLR 931.

As Baroness Hale of Richmond said in Razgar at paragraph 42, that is because such cases "represent an exception to the general rule that a state is only responsible for what goes on within its own territory or control". As we have explained, however, the nature of the violation of Article 8 which is alleged in the present case makes this a "domestic" rather than "foreign" case.

[17] As a consequence of their misunderstanding of Lord Bingham's second question, and their misapplication of the dicta which they cited, the senior immigration judges appear to have considered that it was necessary for the appellant to establish "a very grave state of affairs, amounting to a flagrant or fundamental breach of the article, which in effect constitutes a complete denial of his rights", before it could be decided that the admitted interference with the appellant's private life would have consequences of sufficient gravity to engage Article 8. For the reasons we have explained, that was a mistaken approach.

[18] Although that is sufficient to vitiate their decision, we have to say that we also have difficulty understanding the basis of the statement, in paragraph 19, that the appellant "claims no seriously adverse consequences", and their criticism of the immigration judge, in paragraphs 19 and 21, as having been swayed by the appellant's personability and by feelings of sympathy and admiration. The consequences of the respondent's decision which the appellant apprehended - put shortly, the loss of his home, his career and his fiancée - were plainly of some seriousness. The immigration judge accepted that the appellant had stronger cultural and social ties with the United Kingdom than with Ghana; that the opportunities which he had in the United Kingdom to pursue his musical career would not be available to him in Ghana; and that his relationship with the young woman in question would be difficult to continue if he were returned to Ghana. Given those findings, the immigration judge cannot be said to have reached her decision on the basis merely of feelings of sympathy and admiration.

[19] Since we are satisfied that the senior immigration judges erred in law, it follows that we should grant permission to appeal under section 103B(3)(b) of the 2002 Act and should in addition allow the appeal. The question then arises as to how we should exercise our discretion under section 103B(4), which provides:

"(4) On an appeal under subsection (1) the appropriate appellate court may-

...

(b) make any decision which the Tribunal could have made;

(c) remit the case to the Tribunal ..."

Since section 103B(4) applies where there is an appeal to the court following the reconsideration of an appeal by the Tribunal, the reference in section 103B(4)(b) to "any decision which the Tribunal could have made" would appear to mean any decision which the Tribunal could have made on its reconsideration of the appeal. As we have explained, the decisions which the Tribunal could have made on such reconsideration are defined by Rule 31 of the Procedure Rules. In accordance with Rule 31(2)(a), the Tribunal must first decide whether the original Tribunal made a material error of law. We therefore turn next to that question.

The decision of the immigration judge
[20] For the reasons we have explained, we consider that the immigration judge did not commit the error of law which the senior immigration judges attributed to her, namely of failing to address the second of the five questions posed by Lord Bingham in the Razgar case. It was not suggested before this court that she erred in either of the ways suggested in the respondent's application for reconsideration, or in any other respect. We have however considered whether she was led into any material error by her use of the test of "exceptionality" laid down by the Court of Appeal in Huang but subsequently disapproved by the House of Lords in the same case.

[21] In a case where the proposed removal of a person from the United Kingdom will interfere with the exercise of his Article 8 right to respect for his private and family life within the United Kingdom, it is necessary to consider whether the interference is in accordance with the law, has a legitimate aim, and is necessary in a democratic society: Article 8(2). These are the matters with which the third, fourth and fifth questions posed by Lord Bingham in the Razgar case are concerned. In particular, the question whether the interference is necessary in a democratic society involves, as Lord Bingham noted, a test of proportionality in assessing whether the relationship between the interference and its legitimate aim is acceptable. In Huang, the Court of Appeal accepted that the Immigration Rules reflected the respondent's assessment of how the balance between Convention rights and immigration policy should be struck for the general run of cases; that the court should defer to that assessment; and that, in consequence, an adjudicator should allow an appeal against removal or deportation brought on Article 8 grounds

"if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules".

[22] As we have explained, that approach was disapproved by the House of Lords, who held that the question of proportionality should be decided without deference to the respondent's view of that matter. The immigration judge's use of the test of exceptionality does not however appear to us to have been an error which affected her decision upon the appeal: since she was satisfied that the appellant passed the test of exceptionality, it follows that she must have been satisfied that "proportionality demands an outcome in the appellant's favour", and would therefore have upheld the appeal in any event.

[23] Whether the respondent's refusal to allow the appellant to remain in the United Kingdom, notwithstanding its effects on his life, was proportionate to the legitimate aims of immigration control, was a question to be determined by the immigration judge. It has not been suggested that she erred in law in her determination of that question.

[24] In these circumstances, we conclude that the senior immigration judges should have decided that the original Tribunal did not make a material error of law, and should therefore have ordered that the original determination of the appeal should stand, in accordance with Rule 31(2)(b) of the Procedure Rules. It is therefore open to this court, under section 103B(4)(b) of the 2002 Act, to make a decision in those terms. That appears to us to be the most appropriate way of disposing of this appeal.

Conclusion
[25] We shall accordingly grant the appellant permission to appeal, allow the appeal and order that the original determination of the appeal, allowing the appeal, shall stand.