LM (DRC) v The Secretary of State fo Home Department

JurisdictionEngland & Wales
JudgeLord Justice Sedley,Lord Justice Ward,Lord Neuberger
Judgment Date17 March 2008
Neutral Citation[2008] EWCA Civ 325
CourtCourt of Appeal (Civil Division)
Date17 March 2008
Docket NumberCase No: C5/2007/2152

[2008] EWCA Civ 325




Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Ward

Lord Justice Sedley and

Lord Neuberger

Case No: C5/2007/2152

[AIT No: AA/06699/2005]

Lm (drc)
The Secretary Of State For The Home Department

Mr R Husain (instructed by TRP Solicitors) appeared on behalf of the Appellant.

Ms P Patel (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.

Lord Justice Sedley

The appellant, who is now 22, came to this country with her two younger siblings in May 2002 when all three of them were minors, one of them born on 13 October 1992, the other on 21 July 1988. They had fled from the Democratic Republic of Congo where their parents, who were Burundian, had been abducted and (as the immigration judge was in due course to find) probably killed by Congolese soldiers. The father was a doctor; the mother was a diamond trader. The children thereafter lived from hand to mouth until by selling one of the mother's diamonds they were able to reach the United Kingdom. Here they have been cared for and fostered by a couple, Mr and Mrs Hodgson. They have no other family and no remaining links with the Democratic Republic of Congo.


The Home Secretary declined to grant the appellant either a variation of her leave to remain here or further leave to remain. She appealed to the AIT on both asylum and human rights grounds. Before Immigration Judge Salmon in August 2005 the asylum claim failed but the human rights claim succeeded, both under Article 3 and under Article 8 of the Convention. A reconsideration of the human rights determination was ordered because of arguable errors of law. No attempt was or has since been made to revive the asylum claim.


In April 2006 Senior Immigration Judge Southern held not only that Immigration Judge Salmon had erred in law but that the human rights claim was unarguable because it was not justiciable. He therefore substituted a decision dismissing the appellant's human rights appeal without proceeding to a second-stage hearing.


It is now common ground that Senior Immigration Judge Southern himself erred in law in holding that in a variation appeal, as opposed to a removal appeal, human rights were not justiciable. That had been the view of the law prevailing at the time of his determination by virtue of the AIT's decision in JM v Liberia [2006] AIT 00009. That decision was overset by this court: [2006] EWCA Civ 1402. It follows that Senior Immigration Judge Southern's conclusion that Immigration Judge Salmon had determined the human rights issues without jurisdiction to do so has to be abandoned. The question which remains is whether the consequence should be, as Parish Patel for the Home Secretary submits, a remission to the AIT for reconsideration of the merits of the human rights claim or, as Raza Husain for the appellant submits, the restoration of Immigration Judge Salmon's determination that removal of the appellant would breach Article 8.


Mr Husain is able to limit his submission to Article 8 without seeking to defend the favourable decision of the Immigration Judge under Article 3, a more formidable task, since the appellant need succeed on only one limb of the ECHR in order to remain here.


Before I turn to this, however, I need briefly to record that the appellant's lawyers at the time of Senior Immigration Judge Southern's decision told the Home Office that if the case of JM (Liberia) was overset on appeal they would seek to appeal the appellant's case out of time. Instead, however, they closed their file. It was not until her present solicitors were instructed in July 2007 that the Home Office was asked now to give effect to the Article 8 decision of Immigration Judge Salmon and it was when this was declined that permission to appeal out of time was sought. This was granted by Moses LJ.


Whether to remit or to restore depends on whether Immigration Judge Salmon's determination on Article 8 contains any appealable error of law. I put it in this way because it is common ground that one error in it is not appealable. The immigration judge, adopting what was the conventional approach at the time, decided the Article 8 issue by reference to whether the case was “truly exceptional”. For reasons which it is unnecessary to explore but which are detailed in this court's decision in AG (Eritrea) [2007] EWCA Civ 801 it is now established, or rather re-established, that the test under Article 8(2) is proportionality, not exceptionality. Where, as here, the higher hurdle of exceptionality has been found to have been surmounted the error cannot be said to be material, and Mr Patel rightly does not attempt to say it is. What Mr Patel submits are material are two further matters, both amounting in his submission to errors of law. In his skeleton argument he puts them this way

“32…Whilst it is true to say that Immigration Judge Salmon's assessment of proportionality by reference to the “truly exceptional” standard was an error of law which was not material to his conclusion there were two other errors in his determination which make it impossible to know whether he would have decided the appeal in the appellant's favour.

(1) In IJ Salmon's assessment of proportionality he puts into the balance the fact that the appellant 'has no contacts whatsoever left in the DRC'. He relies upon that factor, along with the fact that there is a strong link between the appellant and her siblings, as making the appellant's removal to the DRC a disproportionate interference with her family life (as he concludes that her removal would 'split apart the family'). However the first factor has to be seen in the context of IJ Salmon's finding that her lack of contacts in the DRC (coupled with her ethnicity, sex and age) put her at risk of treatment contrary to Article 3 and that such finding was found by SIJ Southern to be erroneous as being contrary to the objective evidence. By reference to the observations of the Court of Appeal in AG {Eritrea) that introduces into a 'labile balance' a factor which was not properly made.

(2) IJ Salmon concluded that the appellant's removal would cause an interference with her Article 8(1) right to a family life. In reaching that conclusion he stated 'it is unrealistic to expect [the appellant's siblings] to leave their foster home and return voluntarily to the DRC'. That is not the correct approach. The immigration judge should have considered the issue of interference by reference to whether 'there are insurmountable obstacles' to family life being enjoyed elsewhere so that unless there were there was no interference caused by the appellant's removal (see Mahmood…). That is clearly a higher hurdle to overcome from whether it is 'unrealistic'. In the circumstances had the immigration judge considered the appellant's circumstances by reference to the proper approach it is impossible to know whether he would have reached the same conclusion.”


The material findings and conclusion of the immigration judge are found at paragraphs 31 and 33 of his determination, but in order to examine Mr Patel's first argument it is necessary to include paragraph 32:

“31. I find that although the Appellant and her siblings are Congolese her parents originated in Burundi. They were seized by Congolese soldiers in 1998 or 1999 and have not been seen since. There is no evidence of...

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