MA (Afghanistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE MOSES,Lord Justice Pill |
| Judgment Date | 03 October 2006 |
| Neutral Citation | [2006] EWCA Civ 1440 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C5/2006/1647 |
| Date | 03 October 2006 |
[2006] EWCA Civ 1440
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Pill
Lord Justice Moses
C5/2006/1647
[AIT No. HX/01468/2003]
MR N STANAGE (instructed by Messrs Browell Smith and Co) appeared on behalf of the Appellant.
MISS W OUTHWAITE (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
Judgement
This is an appeal by leave of the single judge, granted on paper, against a decision of the Asylum and Immigration Tribunal promulgated on 12 April 2005. An extension of time was also granted, there having been a long delay in the application to the tribunal for permission to appeal following the promulgation of its decision. It is said, and I have no reason to doubt this, that the letter went astray. While the extension of time has been granted, solicitors should not assume that waiting for 14 months after application to the tribunal has been made, in the absence of a reply having been received, will often be justified.
The appellant, Mr A, is 31 years old. He was born and lived in Afghanistan. In 1994 he went to Azerbaijan to study. He returned in 1999 and married. In 2000 he claimed to have fled from the Taliban, first to Tadjikstan and then to the United Kingdom, where he arrived on 14 May 2000. He was refused asylum both on refugee convention grounds and on human rights convention grounds. He appealed and his first appeal was dismissed by an adjudicator on 2 April 2003. He appealed to the tribunal, which remitted the appeal, but only on the Article 8 ECHR ground, for consideration by a different adjudicator. On 28 January 2004 an adjudicator allowed the appeal on the Article 8 ground. The Secretary of State applied for and was granted permission to appeal to the tribunal and it was in January 2005 that the decision allowing the appeal was made.
On behalf of the appellant, Mr Stanage submits, first, that the tribunal had no jurisdiction to consider the Secretary of State's appeal, secondly that the tribunal erred in law in purporting to find an error of law in the decision of the adjudicator. Under the law existing at the material time, section 82(1) of the Nationality Immigration and Asylum Act 2002 provided a right of appeal against an immigration decision to an adjudicator. Section 101(1) of the 2002 Act, since repealed, allowed an appeal to the tribunal only on a point of law.
The adjudicator heard oral evidence from the appellant and considered references in support which had been submitted on his behalf. While in the United Kingdom he became a Dari interpreter based in the North- East of England where, the adjudicator held, there was an acute shortage of such a skill. The adjudicator referred to letters from an NHS Primary Care Trust and from an oral health clinic stating that:
"We depend on [Mr A] to make a considerable contribution to this work level and we are anxious to retain his employment with the NHS for the long-term future."
Another letter referred to the appellant being:
"One of only two Dari interpreters in the North- East region and is essential to our work here with asylum seekers and refugees."
Reference was made to the fact that the appellant related well to both professional users and service users.
The adjudicator considered the position in Afghanistan, stating, at paragraph 9, that the appellant had been reliably informed that his (the appellant's) wife, together with most members of his family, were killed after he left Afghanistan. The appellant's claim was based upon the private life aspect of Article 8 and any reliance upon the family life aspect was expressly excluded by him. It is submitted that the appellant's work was an integral, essential part of his private life. The adjudicator found, at paragraph 13, that the appellant was:
"…in performing this work doing so to a high level of professional competence and I further find that his work is of considerable benefit to the (mostly) public authorities for whom he works."
At paragraph 18 the adjudicator said that he bore in mind:
"… as one of the relevant factors the public utility of this man's current work. I bear in mind the fact that he has been in this country for a substantial period of time".
The adjudicator also considered the possibility of return and referred to the appellant's belief that his entire family had been killed. The adjudicator added:
"As a result of this he would return (if returned) to Afghanistan to a place where he has no home and no job and from which (except for a short interval between 1999 and 2000) he has been absent since he went to Azerbaijan in 1994. I bear in mind the current somewhat turbulent state of Afghanistan even in Kabul but also the need in Afghanistan for qualified Afghans to return and assist in the rebuilding of that country. I bear in mind the private life that he enjoys in the United Kingdom has been built up throughout a period during which he has known his residence in the United Kingdom has been precarious."
The adjudicator stated, at paragraph 12:
"… the need to balance immigration control against the need to assist the wider public interest would, after the balancing exercise has been completed, come down in favour of the wider public interest even if the decision involves some abnegation of the rules relating to immigration control".
That was put by way of summary of the appellant's case.
The adjudicator's conclusions are at paragraph 20:
"It would, I think, not be helpful for me to rank the various factors that I have borne in mind in order of importance. I have, however, borne in mind the dictum of the Master of the Rolls in the case of Mahmood, set out in paragraph 55 of the judgment of the Court of Appeal. Doing the best I can to perform the balancing exercise and paying every regard to the importance of immigration control and the need to give deference to the decision of the Secretary of State taken in those matters reserved to him by Parliament, I have nevertheless come to the conclusion that in this particular case it would be disproportionate to remove this man to Afghanistan. It follows, therefore, that in my view the appeal should be allowed under Article 8 of the European Convention on Human Rights."
For the respondent, Miss Outhwaite submits that there was a fundamental error of law in the adjudicator's approach. He applied the wrong legal test in that he failed to have regard to the law which provides that only in truly exceptional cases will permission to remain be given on Article 8 grounds. It should be said, in fairness to the adjudicator, that the case of Huang had not been decided when the adjudicator made his decision and awareness of the jurisdiction to be exercised under Article 8 does not appear to have been as widely known as it should have been. There is no dispute as to the law which the adjudicator was required to apply. Points raised in written submissions as to when the decision of DM Croatia [2004] UK IAT 00024 was promulgated are not pursued, and rightly so.
In Huang [2005] EWCA Civ 105, Laws LJ stated at paragraph 59:
"The true position in our judgment is that the 1998 Act and section 65(1) require the adjudicator to allow an appeal against removal or deportation brought 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."
Paragraph 60:
"The adjudicator's decision of the question whether the case is truly exceptional is entirely his own. He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances. In our respectful view such an approach is also reflected in Lord Bingham's words in Razgar, which we have already cited: 'Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case-by-case basis.'"
The Secretary of State's grounds of appeal to the tribunal were stated by the Vice President granting leave to be "less than impressive". The view was taken that it was properly arguable that the conclusion of the adjudicator involved an error of law. As has already been stated, the claimed error of law is one that can be stated succinctly: the adjudicator applied the wrong test. In submitting that the grounds of appeal did not allege an error of law, Mr Stanage relies on the decision of this court in Krasniqi v Secretary of State for the Home Department [2006] EWCA Civ 391.
In a short supporting judgment Chadwick LJ stated at paragraph 41:
"I wish only to add that I endorse his [Sedley LJ's] observations as to the need for rigour in identifying, with an appropriate degree of precision, which amongst the issues an applicant may seek...
To continue reading
Request your trial
-
UE (Nigeria) v Secretary of State for the Home Department
...various activities to the community in the United Kingdom. In reliance upon a decision of this court in MA (Afghanistan) v SSHD [2006] EWCA Civ 1440, he held that those activities in the community were only relevant when considering the impact of removal on the appellants themselves. At par......
-
Sardabai Mansukhlal Girdharlal Thakrar v The Secretary of State for the Home Department
...8(2) the value of the appellant's various activities to the community in the United Kingdom. In reliance upon MA (Afghanistan) v Secretary of State for the Home Department [2006] EWCA Civ 1440, the judge held that those activities were only relevant when considering the impact of removal o......
-
Hamat (Article 9 — Freedom of Religion)
...that the Immigration Judge had properly in mind in his determination. 43 As to the other side of the balance, in MA (Afghanistan) [2006] EWCA Civ 1440 at paragraph 28 Moses LJ suggested that “It may well be that the benefit of the community of the work performed by the applicant diminishes......
-
Upper Tribunal (Immigration and asylum chamber), 2018-09-19, [2018] UKUT 336 (IAC) (Thakrar (Cart JR, Art 8, Value to Community))
...activities to the community in the United Kingdom. In reliance upon MA (Afghanistan) v Secretary of State for the Home Department [2006] EWCA Civ 1440, the judge held that those activities were only relevant when considering the impact of removal on the appellants At paragraph 8 of his judg......