Akaeke v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Carnwath,Lord Justice Rix,Lord Justice Chadwick
Judgment Date27 July 2005
Neutral Citation[2005] EWCA Civ 947
Docket NumberCase No: C4/2003/2274
CourtCourt of Appeal (Civil Division)
Date27 July 2005

[2005] EWCA Civ 947




Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Chadwick

Lord Justice Rix and

Lord Justice Carnwath

Case No: C4/2003/2274


Secretary of State for the Home Department
Elizabeth Titilayo Akaeke

Adam Robb (instructed by Treasury Solicitor) for the Appellant

Peter Jorro (instructed by Messrs. Wilson & Co) for the Respondent

Lord Justice Carnwath



1. In the present case we are concerned with the application of the principle of proportionality for the purposes of Article 8 of the Human Rights Convention, in the consideration of an appeal under immigration law. In Huang v Secretary of State [2005] EWCA Civ 105, it was established that a tribunal in such a case, when exercising jurisdiction over both fact and law, is not bound by the Secretary of State's assessment of proportionality, but must form its own judgment on the issue. It was emphasised that this does not entitle the tribunal to question the merits of immigration policy, which is set by the immigration rules, under the mandate given by Parliament. An adjudicator could in a proper case allow an appeal against removal 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”.


2. The essential facts of the present case can be shortly stated. The claimant entered the country illegally not later than November 1994. She claimed to have been persecuted in Nigeria, and made a claim for asylum which was refused in December 1995. In February 1996 she married her present husband, who is a British citizen. Her application to remain on the basis of her marriage was refused in September 1996, because the marriage post-dated enforcement action. Further claims were made and rejected. In December 1998 she was detained pending removal, but was released following an application for judicial review of the Secretary of State's rejection of her latest claim. That application was dismissed. She then made a further application in February 1999 to remain on the basis of her marriage, relying also on Article 8 of the Convention (although at this time the Human Rights Act 1998 had not come into force). That application was not determined for over three years. There was then a successful appeal by her to the adjudicator, followed by an unsuccessful appeal by the Secretary of State to the IAT, the decision on which was given in August 2003. The subsequent delay in the case reaching this court was apparently due to the fact that this case, along with others which depended on proportionality, was awaiting the decision in Huang,


3. Thus, by one means or another she has been able to stay in this country unlawfully for over 10 years. It should be emphasised, however, that, following her marriage to Mr Akaeke (which, I understand, is accepted as perfectly genuine), the issue is not whether she will in due course be able to live lawfully in this country. In normal circumstances her marriage would entitle her to that. The issue is whether she should be required to return to Nigeria in order to make her application, and take her place in the queue.


4. Maintenance of a fair and consistent immigration policy demands that even applicants with an indisputable claim to enter the country should not be able to jump the queue by entering illegally (see R (Mahmood) v Secretary of State [2001] 1WLR 840). It is clear therefore that, once her asylum application had failed, and notwithstanding her marriage to a British citizen, immigration law required the claimant to leave the country and renew her application from Nigeria. In normal circumstances, there would be strong objections to her being allowed to gain an advantage from the fact that she failed to do so. Her claim to be treated by the adjudicator as an exception to that normal rule depended, not on any special merit on her side, but principally on failures on the part of the Secretary of State.


“A public disgrace”


5. As I have said, more than three years elapsed between the making of the claimant's renewed application in February 1999, and the determination in May 2002. In the meantime, her solicitors had written on numerous occasions to the Secretary of State requesting a decision, but without any satisfactory answer or explanation. The only response was a reply to her former MP in June 2000. This stated –

“I do appreciate that there have been delays in this case and unfortunately owing to the large number of applications currently being processed by the Immigration and Nationality Directorate, I am still not in a position to give any indication as to the likely outcome of Mrs Akaeke's application, or when she will receive notification of the decision. However, when a decision is reached, Mrs Akaeke will be advised as soon as practical by her appointed representatives”.


Although it was almost two years following that letter before a decision was reached, no other explanation was ever given to her for the delay, and no explanation has been given to this court.


6. The IAT (Chairman J. A. Freeman) commented in strong terms:

“We have now reached the decision under appeal. It took over three years and three months from the solicitors’ application, nine letters by them trying to get something done about it, and (which seems to have been what eventually brought about any action at all), the intervention of two successive MPs. Before that process even began, there had been two years (late 1996 to late 1998) in which neither side did anything at all, though the Home Office knew the claimant was here without any authority, following refusal of leave to appeal against Mr Disley's decision; and only two months at most where the claimant delayed her own removal by applying for judicial review.

“There was no reason whatsoever why the solicitors’ application of 22 February 1999 should not have been dealt with in a matter of weeks: even if it had taken over 18 months, there would have been no further appeal to the Appellate authorities, so long as it had been dealt with before 2 October 2000 (when the relevant provisions of the 1999 Act came into force). The case was never let go to sleep by the solicitors, and the IND had every opportunity to give it its proper priority. That they did not do so is a public disgrace.”


Mr Robb, on behalf of the Secretary of State, has not sought to persuade us that these criticisms, from a very experienced chairman of the IAT, were unjustified.


Proportionality—the tribunal decisions


7. The Adjudicator and the IAT held that taking into account the delay and the other factors in the case, it would be disproportionate for the claimant to be required to return to Nigeria.


8. The Adjudicator had no illusions about the lack of legal merit in her claims, whether to asylum, or to remain here on the grounds of her marriage under the immigration rules. Indeed, on the former, he noted that there was a doctor's letter showing that she had registered in January 1994, and was therefore in this country at the time that she was claiming to have been suffering persecution in Nigeria.


9. In her favour, he noted that, since arriving in the United Kingdom, she had worked regularly, having obtained the necessary work permits; and that she was now a full time student at Westminster University, studying software engineering. He also formed a favourable view of her husband, who was a credible and honest witness, and was “clearly very hard working” having obtained a law degree in Nigeria. He had been working for the Post Office in this country for many years. The couple lived in rented accommodation and had not relied on benefits, and they were hoping to start a family.


10. For the purposes of Article 8 of the Convention, he had no doubt that the claimant had a family life in the United Kingdom, and that there would be an interference with that family life, if she were required to return to Nigeria even temporarily. (This aspect of the decision is not now in dispute). The only question therefore was whether the interference was “necessary and proportionate” under Article 8. He concluded that it was not:

“I accept that in normal cases an Appellant should return to her Country of origin, make the appropriate application for entry clearance and she should not normally be permitted to ‘jump the queue’ in this way. However, I take into account the special circumstances of the case, including the length of the relationship and the marriage, the fact that the parties are not receiving benefit, the university course, the employment record of the Appellant and her husband and the unfortunate delay of the Respondent. After taking all these matters into account, I consider it would be disproportionate for the Appellant (and possibly her husband) to return to Nigeria.”


11. This decision was upheld by the IAT (still exercising jurisdiction in respect of both fact and law). I have already referred to its criticisms of the Department's inaction. On the proportionality issue it concluded as follows:

“Even though the delay in this case has not resulted in the birth of any children to the parties…, and even though there are no special circumstances beyond it, and even though refusal at the proper time would have been unchallengeable, we have no doubt that the average right-thinking citizen of this island would agree with the Adjudicator that what has happened in...

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