Edore v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon Brown,Lord Justice Waller,Lord Justice Kay |
| Judgment Date | 23 May 2003 |
| Neutral Citation | [2003] EWCA Civ 716 |
| Docket Number | Case No: C1/2003/0425 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 2003 |
[2003] EWCA Civ 716
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 Simon Brown
(Vice-President of the Court of Appeal Civil Division)
Lord Justice Waller and
Lord Justice Kay
Case No: C1/2003/0425
Sibghatullah Kadri Esq, QC & Satvinder Juss Esq (instructed by Ikie, Solicitors) for the Appellant
Ashley Underwood Esq, QC (instructed by The Treasury Solicitor) for the Respondent
Ms Blessing Edore, the appellant, is a citizen of Nigeria now aged 39. She has been in this country since her illegal entry here in 1990. She has two young children fathered by a married man, Mr Okadiegbo, a British citizen with a wife and three older children, also living here. It is the appellant's case that to return her to Nigeria as the Secretary of State proposes would infringe her (and her children's) right to family life under Article 8 of ECHR. The Secretary of State contends to the contrary that the appellant's return is necessary and proportionate in the interests of effective immigration control.
On 20 June 2002, on the appellant's appeal under s65 of the Immigration and Asylum Act 1999 ("the 1999 Act"), a special adjudicator, Mrs Frudd, allowed the appeal: she found that "removal of the appellant and her two dependent children would be disproportionate to the aim of preserving the integrity of immigration control pursuant to article 8 of ECHR".
On 29 January 2003 the IAT allowed the Secretary of State's appeal and reinstated his decision to issue and serve removal directions.
The appellant now appeals to this court with permission granted by Latham LJ in these terms:
"It seems to me that this court should take the opportunity to consider the starred appeal of Noruwa and the way in which Adjudicators and the Tribunal should approach appeals in which proportionality is in issue."
Essentially two questions arise on the appeal: first, as suggested by Latham LJ, what approach should the independent appellate authorities bring to bear on a s65 appeal arising, as commonly such appeals do, in circumstances such as exist here. More particularly, if there is room for two views as to whether, in ordering the appellant's removal, the Secretary of State has acted proportionately and struck a fair balance between the competing interests in play, are the appellate authorities bound to dismiss the appeal or can they, if they prefer, substitute for the Secretary of State's decision one more favourable to the appellant? This first question is plainly one of some general importance. The second question arising is whether, whatever may be held to be the correct approach to its jurisdiction, the IAT was right on the facts of this particular case to have upheld the Secretary of State's decision to return the appellant and her children to Nigeria.
Before addressing either question it is convenient first to sketch in the facts of the case, noting as I do so that these have never been the subject of dispute.
The appellant entered the UK on 11 September 1990 on a visa valid for only 24 hours. In 1996 she met Mr Okadiegbo, an accountant by profession. He had just been naturalised and, as she knew, was a married man with three children, the eldest, Michael, being profoundly deaf. The appellant and Mr Okadiegbo planned a family and began to spend virtually every weekend together. After miscarrying several times in 1997 and 1998, on 29 May 1999 she bore him a son; on 11 October 2000, a daughter. He supports the family by giving her £200 per week for her council house rent and for the children's upkeep. He also buys them clothes and toys. She herself works as a cleaner, claiming family allowance but no other benefits. The children see their father every Saturday without fail. The love between them is mutual. He telephones the appellant every day and sometimes sees her and the children during the week. Were the appellant and her children to be returned to Nigeria their relationship with Mr Okadiegbo would end. He could not and would not leave his marriage to live with the appellant. He loves all his five children equally. He feels particularly responsible for Michael. His wife is aware of his relationship with the appellant and has indicated that if he were ever to seek a divorce she would make it as difficult as possible for him to see the three children of the marriage.
Having recorded the facts essentially as I have just sought to summarise them, the adjudicator continued:
"38. The two children are maintained by Mr Okadiegbo in the UK, but more importantly they appear to be dependent upon him emotionally as their father. He sees them regularly every week, at least once a week and is part of their lives. Even though they are still a tender age, he is a stable influence remaining in daily contact with them and their mother. … I find as a fact that there are substantial 'family ties' in this case and these children should not suffer because their father is in a complicated position with his wife and three children from his marriage.
39. Consequently I am satisfied that there would be an interference with the right to respect of private life and family life were the appellant and her children sent to Nigeria.
…
42. I am conscious of the fact that the appellant has flouted immigration control and has had a relationship with a man who still lives with his wife and three children which has led to the birth of two children whilst her immigration status was uncertain. Against this I have to balance the facts of this particular case in terms of the interests of the appellant and her family. There is clearly a balance of public interest and private interest to be considered.
43. Having considered all of the evidence in this matter I find that it would be disproportionate in this particular instance to return the appellant to Nigeria together with her two dependent young children because of the severe effects which it would have upon the appellant and more particularly her two children who were born in the UK."
I turn now to the IAT's determination by which it concluded, first, that the interference with family life involved in returning the appellant and her children to Nigeria flowed rather from the father's decision not to live with them there rather than the Secretary of State's decision to return them and, secondly, that in any event the removal of the appellant and her two children to Nigeria would be proportionate. Let me at once set out the most directly relevant passages from the IAT's decision:
"19. … [T]here is an interference if the children's father will not go to Nigeria but there is not if he is prepared to go. We do not accept in these circumstances that the interference follows automatically from the Secretary of State's decision; it follows naturally from the father's decision.
20. Given that what the adjudicator found were substantial family ties, she also found that there would be an interference of the right to private life and family life were the appellant and her children sent to Nigeria. This finding was only open to the adjudicator if she took no proper account of the father's choice, and we consider this was an error. We find on the particular facts of this unusual case that what would be the operative interference with family life in Nigeria is the father's choice to remain in the United Kingdom. Absent the father's decision, there is no free standing insurmountable obstacle to family life in Nigeria.
…
29. We differ from the adjudicator in her assessment of proportionality. In our view proportionality is not solely a question of fact, but is essentially a question of law, based on the facts.
30. In this particular case the applicant came to the United Kingdom illegally and has made an application for asylum which has failed. Late in the day she makes an application to stay on the basis of a potential breach of her human rights and at all stages she has known of the precarious nature of her immigration status.
31. There is no proper reasoning in the adjudicator's determination for the conclusion that the applicant's children's would be adversely affected by removal, but we accept what must be inherent in looking the facts that the children would be going to a country where they were not born and have, we assume, never visited.
…
33. There is a lack of any proper evidence before the adjudicator relating to the actual impact upon the children if they did have to live in Nigeria.
34. The family unit in question is not long established in the United Kingdom.
35. We take the view that the removal of the applicant and her two children to Nigeria would be proportionate."
I turn now to the first issue arising here: what is the correct approach to an appeal under s65 of the 1999 Act?
Clearly the starting point must be the statutory language in which the appeal jurisdiction is conferred on the adjudicator. So far as material s65 provides:
"(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision …
(2) For the purposes of this Part …
(b) an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.
(3) Subsections (4) and (5) apply if, in proceedings before an...
To continue reading
Request your trial
-
Huang v Secretary of State for the Home Department; Abu-Qulbain v Same; Kashmiri v Same
...rulings which accorded the appellate immigration authority a more limited role. Only two authorities need be cited. In Edore v Secretary of State for the Home Department [2003] EWCA Civ 716, [2003] 1 WLR 2979, para 20, the Court of Appeal, approving earlier first instance authority, ruled......
-
Minister for Justice & Equality v T.E.
...be that they had to leave with her. On the facts, it is as least as strong a case as Edore v Secretary of State for the Home Department [2003] 1 WLR 2979, where Simon Brown LJ held that 'there really is only room for one view' (para 26). In those circumstances, the Secretary of State was cl......
-
Upper Tribunal (Immigration and asylum chamber), 2017-01-10, [2017] UKUT 14 (IAC) (Kaur (children’s best interests / public interest interface))
...be that they had to leave with her. On the facts, it is as least as strong a case as Edore v Secretary of State for the Home Department [2003] 1 WLR 2979, where Simon Brown LJ held that "there really is only room for one view" (para 26). In those circumstances, the Secretary of State was cl......
-
The Secretary of State for the Home Department v MS (Pakistan)
...Department [2007] UKHL 11; [2007] 2 AC 167 where the House of Lords disapproved earlier appellate authority such as Edore v Secretary of State for the Home Department [2003] EWCA Civ 716; [2003] 1 WLR 2979 which had assigned to what was now the tribunals a more limited reviewing role. Mr ......