AG (Eritrea) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 2007 |
| Date | 31 July 2007 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Sedley, Maurice Kay and Lawrence Collins LJJ
Representation
Mr Manjit Gill QC and Mr Edward Nicholson instructed by Messrs Clore and Co, for the Claimant;
Miss Jane Collier instructed by the Treasury Solicitor, for the Secretary of State.
Cases referred to:
Gemany v Secretary of State for the Home Department[2002] UKIAT 07099
Handyside v United Kingdom1976 ECHR 5493/72; (1976) 1 EHRR 737
Huang v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home DepartmentUNK[2007] UKHL 11; [2007] 2 AC 167; [2007] Imm AR 571; [2007] INLR 314
Huang, Abu-Qulbain and Kashmiri v Secretary of State for the Home DepartmentUNK[2005] EWCA Civ 105; [2005] Imm AR 240; [2005] INLR 247
KA (draft-related risk categories updated) Eritrea CG [2005] UKAIT 00165
Karanakaran v Secretary of State for the Home Department[2000] Imm AR 271; [2000] INLR 122
KR (Iraq) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 514; [2007] INLR 373
Krasniqi v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 391
London Regional Transport and London Underground Limited v Mayor of London and Transport for LondonUNK[2001] EWCA Civ 1491
MT (Zimbabwe) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 455
Mukarkar v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 1045; [2007] Imm AR 57; [2006] INLR 486
PO (Nigeria) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 438
R v Special Adjudicator ex parte Ullah; Do v Secretary of State for the Home DepartmentUNK[2004] UKHL 26; [2004] 2 AC 323; [2004] Imm AR 419; [2004] INLR 381
R v Secretary of State for the Home Department ex parte RazgarUNK[2004] UKHL 27; [2004] 2 AC 368; [2004] Imm AR 381; [2004] INLR 349
Human rights Article 8 of the ECHR proportionality Huang no exceptionality test
The Claimant, a citizen of Ethiopia, arrived in the United Kingdom unaccompanied when he was fourteen years old. His father was an Ethiopian national but his mother was Eritrean. The Claimant's mother had been abducted by soldiers in Ethiopia and he had been imprisoned. Following his escape from prison the Claimant came to the United Kingdom, where he applied for asylum and human rights protection. The Secretary of State for the Home Department took four years to reach a decision to refuse the application and to direct removal to Eritrea, which was neither the Claimant's country of origin nor a place where he had ever lived. An Adjudicator allowed the Claimant's appeal on asylum and human rights grounds. The Secretary of State was granted permission to appeal to the Immigration Appeal Tribunal. The grant took effect as an order for reconsideration by the Asylum and Immigration Tribunal.
At the date of the reconsideration, the judgment of the Court of Appeal in Huang v Secretary of State for the Home DepartmentUNK[2005] EWCA Civ 105 remained good law. The Tribunal held that the Adjudicator had erred in law, inter alia, in failing to adopt a test of exceptionality in applying Article 8 of the ECHR, and concluded that the Claimant was not entitled to protection on asylum or human rights grounds. The Claimant was granted permission to appeal to the Court of Appeal.
Before the date of the full hearing, the House of Lords decided Huang v Secretary of State for the Home DepartmentUNK[2007] UKHL 11, and held that there was no test of exceptionality in the application of Article 8. The main issue before the Court of Appeal was whether the Adjudicator had made any error entitling the Tribunal to reconsider the case. It was common ground that if the Adjudicator had erred, the Tribunal's determination could not stand in light of the decision of the House of Lords in Huang and the case would have to be remitted to it for further consideration.
Held, allowing the appeal and remitting the case to the Tribunal:
(1) the effect of the House of Lords' decision in Huang was not to introduce a new interpretation of Article 8 but to clarify and reiterate a well understood one: while its practical effect was likely to be that removal was only exceptionally found to be disproportionate, it set no formal test of exceptionality and raised no hurdles beyond those contained in the article itself (paras 25 and 31);
(2) the fact that in the great majority of cases the demands of immigration control were likely to make removal proportionate, and therefore compatible with Article 8, was a consequence, not a precondition, of the statutory exercise; while in this sense successful Article 8 claims would be the exception rather than the rule, to treat exceptionality as the yardstick of success was to confuse effect with cause: Mukarkar v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 1045, MT (Zimbabwe) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 455 and KR(Iraq) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 514 applied (para 31);
(3) reliance ought not to be placed by practitioners on the reasoning in PO (Nigeria) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 438, a decision in which the Court of Appeal refused permission to appeal on the ground that there was nothing so exceptional about the facts of [the] case as to make success possible (para 33);
(4) what mattered was not that courts and tribunals should adopt a set formula for determining proportionality but that they should have proper and visible regard to relevant principles in making a structured decision on a case by case basis; it was not sufficient for the Tribunal simply to characterise something as proportionate or disproportionate, as doing so could well amount to an error of law; there would, however, be many cases where it could properly be said by an appellate tribunal that on no view of the facts could removal be disproportionate, and in such cases, even if the wrong test had been applied by the Tribunal, permission to appeal to the Court of Appeal would be unlikely to be granted (para 37);
(5) the material set out or adopted by the Adjudicator in his determination was insufficient to ground a conclusion that the Claimant, if returned, would face a real risk of persecution or treatment contrary to Article 3; while the Adjudicator was to be commended for adopting the legally correct approach to Article 8 and not treating exceptionality as a precondition, he had introduced into the balancing exercise an assessment of the real risk of torture or ill-treatment, unsupported by evidence or properly made findings: to this extent the Tribunal was correct to find an error of law in his determination of proportionality (paras 9, 10, 13 and 40);
(6) the Tribunal's substituted decision was, however, vitiated by a larger, and at the time widespread, error of law; the issues had been addressed in light of what was then taken to be the law, with the result that exceptionality had been treated as a surrogate for Article 8 itself (paras 3840);
(7) the private life established by a lone fourteen year old whose asylum claim had not been processed for four years, who had no known family in Eritrea, could not speak the language, and who had acquired an education, psychological support and a social circle in the United Kingdom, not only brought him very plainly within Article 8(1) but raised an obvious question about the necessity and proportionality of removing him, notwithstanding the legality and proper objects of immigration control (para 40);
(8) the decision to direct the Claimant's removal to Eritrea, where he had never lived and when there was nothing to indicate that Eritrea would accept him, remained unexplained; it might be that the order for remission would be overtaken by a fresh Home Office decision (paras 43 and 44).
Lord Justice Sedley:
The judgment which follows is the judgment of the court.
[1] The appellant is a young Ethiopian, born in October 1984, who has sought asylum and human rights protection in this country. He was born and brought up in Ethiopa, his father being a national of that country but his mother being (or having beenhe does not know what has happened to her) Eritrean. He was sent here on his own at the age of 14 by a kinsman of his father after his mother was abducted from their home in Addis Ababa by soldiers and he himself was taken to a gaol from which, however, he was able to escape. It took the Home Office four years from his arrival and application for asylum in August 1999 to reach a decision to refuse the application and remove himnot to Ethiopia but to Eritrea, which is neither his country of origin nor a country in which he has ever lived. For reasons we will come to, the present issue is not whether he is entitled to asylum but whether, having no such entitlement, he can resist removal by relying on Article 8 of the European Convention on Human Rights.
(2) His appeal to an adjudicator, Mr J.E.Camp, succeeded in January 2004 both under the refugee convention and under arts.3 and 8 of the Human Rights Convention. Under the transitional rgime, the AIT (Mr C.P.Mather and Ms C.Jarvis) held the adjudicator's decision to have been vitiated by two errors of law: deficiency of reasoning about risk, and failure to adopt a test of exceptionality in applying ECHR Article 8. In spite of a finding that the adjudicator's Article 8 decision was perverse, which should logically have meant that only a contrary finding was possible, the AIT sent the entire case, apart from the favourable credibility findings, for a second-stage reconsideration. The reconsideration, conducted by DIJ Shaerf and IJ Traynor, resulted in a determination, promulgated in June 2006, that the appellant was not entitled to protection under either Convention.
[3] The AIT refused permission to appeal to this court, but this court in October 2006 granted it. Carnwath LJ considered it realistically arguable that the...
To continue reading
Request your trial
-
MM (Tier 1 PSW; Art 8; 'Private Life') Zimbabwe v Secretary of State for the Home Department
...9214/80, ECtHR; (1985) 7 EHRR 471 AG (Eritrea) v Secretary of State for the Home DepartmentUNK [2007] EWCA Civ 801; [2008] 2 All ER 28; [2008] Imm AR 158; [2007] INLR 407 Bensaid v United Kingdom 2001 ECHR 44599/98; (2001) 33 EHRR 10; [2001] INLR 325 Beoku-Betts v Secretary of State for the......
-
Khalid Ahmad (ap) Against The Secretaryof State For The Home Department
...reclaimed. Cases referred to: AG (Eritrea) v Secretary of State for the Home DepartmentUNK [2007] EWCA Civ 801; [2008] 2 All ER 28; [2008] Imm AR 158; [2007] INLR 407 Beoku-Betts v Secretary of State for the Home DepartmentUNK [2008] UKHL 39; [2009] 1 AC 115; [2008] 3 WLR 166; [2008] 4 All ......
-
Ogundimu (Article 8 - New Rules) Nigeria [Upper Tribunal]
...Pakistan [2008] UKAIT 00027 AG (Eritrea) v Secretary of State for the Home DepartmentUNK [2007] EWCA Civ 801; [2008] 2 All ER 28; [2008] Imm AR 158; [2007] INLR 407 Boktor and Wanis (late application for permission) [2011] UKUT 442 (IAC) DH (Jamaica) v Secretary of State for the Home Depart......
-
Younas (Section 117B(6)(B); Chikwamba; Zambrano)
...of State. Cases referred to: AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801; [2008] 2 All ER 28; [2008] Imm AR 158; [2007] INLR 407 Chikwamba v Secretary of State for the Home Department [2008] UKHL 40; [2008] 1 WLR 1420; [2009] 1 All ER 363; [2008] Imm AR 700......