Dbeis and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Lord Justice Longmore,Lord Justice Chadwick |
| Judgment Date | 19 May 2005 |
| Neutral Citation | [2005] EWCA Civ 584 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 May 2005 |
| Docket Number | Case No: C4/2004/2187 |
[2005] EWCA Civ 584
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Immigration Appeal Tribunal
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Chadwick
Lord Justice Longmore and
Lord Justice Carnwath
Case No: C4/2004/2187
Ken McGuire (instructed by Moss Beachley Mullem and Coleman) for the Appellant
Eleanor Grey (instructed by The Treasury Solicitor) for the Respondent
This is an appeal from the Immigration Appeal Tribunal ("IAT"), who on 3 rd September 2004 refused an appeal against a decision of an Adjudicator dated 28 th July 2003. The only live issue concerns the treatment of the applicant's case under Article 8 of the European Convention of Human Rights.
Background
The appellant is a citizen of the Lebanon who arrived in the UK with her two young sons in February 2003 and claimed asylum. She claimed that she faced a risk of persecution on account of her religious beliefs. However that claim was not accepted and is no longer in issue. Her claim under Article 8 was based in particular on the personal circumstances of her son, Tarek, who suffers from cerebral palsy.
I can take a description of his condition from a letter dated 1 st December 2003 from Jan Hennessey, Senior Paediatric Physiotherapist at Hounslow NHS Primary Care Trust (which was before the Tribunal, but not the Adjudicator):
"Tarek has cerebral palsy affecting all four limbs. This is a permanent non-progressive condition due to damage of the developing brain. It affects muscle control, balance and posture. Without appropriate treatment it can result in joint deformities which are painful and are further disabling."
The letter noted that since May 2003 Tarek had been attending Hounslow Heath Infants' School, which has specialist support for children with physical disabilities. It continued:
"Tarek shows potential for increased independence and development of his physical skills given the right environment, therapy treatment, and specialist equipment. His condition, however, is permanent and he will always require support and equipment…"
The adjudicator's decision
The Adjudicator dealt with the various grounds on which asylum was claimed including the claim in respect of Tarek's condition. (The appellant had been represented by counsel, Miss J Fisher.) He said:
"39. I note the medical evidence concerning the appellant's son and the treatment that he is receiving. It is clear from the appellant's oral evidence that the medical facilities which would be available to her son in the Lebanon are perfectly adequate and it appears that the only aspect of the appellant's son's care which is in any way different is the assistance which he is obtaining at school in the United Kingdom where I note that he attends a normal school but has been assessed with special educational needs and obtains that additional tuition and assistance which are given once such a special educational needs requirement has been established."
Later in his decision he specifically addressed Article 8:
"46. I have also considered Article 8 and under this Article I have to determine the following separate questions:
1. Is there an interference with the right to respect for private life (which includes the right to physical and moral integrity) and family life?
2. Is that interference in accordance with the law?
3. Does that interference have legitimate aims?
4. Is the interference proportionate in a democratic society to the legitimate aim to be achieved?
47. I have concluded from the objective evidence before me that it would be proportionate to return the Appellant to the Lebanon with her two children. There is objective evidence to show that there are adequate medical facilities available and this has already been conceded in any event by the Appellant in her own evidence.
48. The Appellant seeks now to try and obtain a better education for her children and in particular the child who has been assessed with special educational needs in this country but from the objective evidence before me there is an education system existing in the Lebanon and I see no reason at all why the Appellant's children could not take advantage of that system, notwithstanding the fact that it may be not as sophisticated as the one that exists in the United Kingdom and in coming to those conclusions I have taken in to account what has been stated in Bensaid and I have concluded that this is not a case where the Appellant's child is entitled to better treatment where both adequate medical facilities are available and education is also available. There are therefore, according to the principles set out in Mahmoud no insurmountable obstacles for the return of the Appellant and her two children"
Accordingly he rejected the appeal on both asylum and human rights grounds.
The appeal to the IAT
Since this decision was promulgated after 9 th June 2003, any onward appeal to the IAT was limited to issues of law (see CA v Secretary of State [2004] EWCA Civ 1165, para 10, applying s 101 (1) of the Nationality, Immigration and Asylum Act 2002). It has become apparent in a number of cases in this court that this limitation was not widely appreciated at the time (see e.g. B v Secretary of State [2005] EWCACiv 61, para 2). Although the grounds of appeal to the IAT covered a range of issues of fact arising from the Adjudicator's decision, permission to appeal seems to have been granted on all of them without distinction. However, the only ground which is now material is 5, which stated:
"The Adjudicator failed to consider that the applicant's right under Article 8 of the Human Rights Act would be breached if returned to the Lebanon."
Before the IAT she was represented by Mr Jaffar. In its decision, the tribunal noted that he conceded that all the grounds other than the Article 8 ground were unarguable. It continued:
"5… He requested that the decision of the Adjudicator be set aside as he had, according to Mr Jaffar, failed to give any consideration to the appellant's claim under Article 8. He said that in the circumstances the tribunal should direct a fresh hearing before a different Adjudicator. When we drew Mr Jaffar's attention to paragraph 46 to paragraph 48 of the determination which clearly and manifestly showed that the Adjudicator had not only considered but had also applied the relevant principles established in leading cases on Article 8 to the facts of this case, Mr Jaffar contended that the facts of the case before us were 'rare' and 'exceptional' due to 'compassionate circumstances' and the Adjudicator had failed to gave due weight to the compassionate circumstances as a consequence of which his balancing exercise was flawed. Mr Jaffar asked that we pay particular attention to the health and educational needs of the appellant child who suffers from cerebral palsy. Mr Jaffar said that this appellant requires special attention in his education which he gets here and if he were removed from this environment it 'could lead to an infringement of his rights under Article 8'. He said that the right to private life which is protected by Article 8 includes the ability of an individual to develop and form relationships with others."
The tribunal was referred (apparently without objection) to a bundle of letters and other documents relating to Tarek's condition, which had been expanded from those before the Adjudicator.
The tribunal expressed its conclusions on this issue as follows:
"7. Whilst we have some sympathy for the appellants, particularly the principal appellant for having to look after a child who suffers from a life long condition, we note from all the evidenced that is before us that cerebral palsy is not a condition that can be treated here or by being allowed to remain here the child will get better. We see no basis for concluding that the Adjudicator's conclusions were wrong either in law or on facts. None of the cases which Mr Jaffer so studiously has brought to our attention is even of the remotest assistance to the appellants, despite the gloss that he has attempted to put on some of the dicta. …
10. The only basis upon which the appeal was argued before us was that their removal to the Lebanon would be disproportionate and therefore in breach of their rights under Article 8 of the ECHR. We have of course looked at all the relevant evidence, medical as well as other. We have reminded ourselves that the Secretary of State has the statutory duty to maintain a fair and effective immigration control. The removal of the appellants has the legitimate aim of maintaining such control. It is trite law that no right of an alien to enter or to reside in a particular country is guaranteed by the European Convention on Human Rights. It is for the Contracting States to maintain public order by exercising their right, as a matter of well-established international law and subject to treaty obligations, to control the entry and residence of aliens.
11. The factual matrix at the time when the Secretary of State made the decision to remove in this case was no different to what it was before the Adjudicator or indeed before us. The Secretary of State carried out the balancing exercise as did the Adjudicator. We are far from persuaded that the decision made by the Secretary of State in this case was such that no reasonable Secretary of State would have made it. As one responsible for maintaining immigration control, the respondent has a margin of discretion and in our judgement, his decision to remove the appellants from the United Kingdom is...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2006-01-19, [2006] UKAIT 11 (SA (Entry Clearance Application in Jordan, Proportionality))
...Appeal judgments, R v Secretary of State [2004] EWCA Civ 1328, and ZT [2005] EWCA Civ 1421. Mr Bruten produced copies of Huang, Dbeis [2005] EWCA Civ 584, and SM and Others (Kurds - protection - relocation) Iraq CG 2005 UKIAT 00111. Both representatives indicated that they were ready to pro......
-
SA (Entry clearance application in Jordan – proportionality)
...Appeal judgments, R v Secretary of State [2004] EWCA Civ 1328, and ZT [2005] EWCA Civ 1421. Mr Bruten produced copies of Huang, Dbeis [2005] EWCA Civ 584, and SM and Others (Kurds — protection — relocation) Iraq CG 2005 UKIAT 00111. Both representatives indicated that they were ready to pro......