PO (interests of the state –Article 8)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Storey |
| Judgment Date | 24 October 2006 |
| Neutral Citation | [2006] UKAIT 87 |
| Court | Asylum and Immigration Tribunal |
| Date | 24 October 2006 |
[2006] UKAIT 87
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Senior Immigration Judge Storey
Ms S S Ramsumair
Mrs J Harris
For the Appellant: Mr A N Ikie, Solicitor, from Ikie Solicitors
For the Respondent: Ms Lee Ong, Home Office Presenting Officer
PO (interests of the state -Article 8) Nigeria
When addressing the issue of proportionality (Lord Bingham's question 5 in Razgar [2004] UKHL 27 ) it is only in very limited circumstances that the interests of the state and wider community in the maintenance of effective immigration control will not carry a heavy weight. Whilst the interests of the state and wider community do not carry a fixed weight ( GS (Article 9 -public interest not a fixity) Serbia and Montenegro [2005] UKIAT 00121), the only factors that might justify heavy weight not being given are likely to be where the state has shown by its own action or inaction that immigration control considerations require modification e.g. where it has adopted but not applied a policy to allow certain categories otherwise subject to strict immigration control exceptional leave to remain.
) The appellant is a citizen of Nigeria. On 24 January 2002, in a decision taken under the Immigration and Asylum Act 1999, the respondent refused her application to vary leave to remain under paragraph 322(with reference to paragraphs 18–20 of HC 395 as amended. The appellant's appeal was heard by the Adjudicator, Mr R J Oliver. In a determination notified on 24 August 2004 he dismissed her appeal both under the Immigration Rules and Article 8. By virtue of transitional provisions made under the Asylum and Immigration (Treatment of Claimants etc) Act 2004 her application for permission to appeal took effect as an application for reconsideration. This was refused by a Senior Immigration Judge but succeeded on statutory review.
) At the appeal before the Adjudicator the appellant did not seek to pursue any argument under the Immigration Rules, nor was such an argument raised in the grounds of reconsideration. The sole issue in this case concerns Article 8.
) At the outset of the appeal an issue arose concerning whether the Adjudicator was right to determine the Article 8 issue in the light of JM* (Rule 62(7); human rights unarguable) Liberia [2006] UKAIT 00009 and whether, in consequence, we were bound to say that Article 8 had no prospect of success in view of the need for there to be a further (appealable) immigration decision to remove. There was also an issue of whether in any event, in relation to an appeal such as this, one arising under the Immigration and Asylum Act 1999 and not under the Nationality, Immigration and Asylum Act 2002, the case of R (Maksimovic v Secretary of State for the Home Department [2004] EWHC 1026 Admin should be followed. This case considered that in the context of a s.69(2) appeal under the 1999 Act, human rights had to be dealt with. Prior to completing this determination it has been brought to our notice that the Court of Appeal on 6 October 2006 decided that JM* is wrong on the Article 8 arguability point. Therefore, although we have yet to see the written judgment, we are prepared on the basis of this information to approach this appeal on the basis that the appellant was entitled to rely on Article 8 and that we must make a decision on whether the Adjudicator erred in law in finding that the decision was a proportionate one.
) We are persuaded that the Adjudicator materially erred in law. He applied the principle set out in ( M (Croatia) v Secretary of State for the Home DepartmentM* Croatia [2004] UKIAT 24, [2004] INLR 327) which prohibited adjudicators on appeal from considering the merits of the Article 8 claim: indeed he expressly rejected a submission reliant on the House of Lords judgment in Daly [2001] 1 WLR 840, to consider the appellant's Article 8 claim on its merits. Partly on the basis of what had been held in Daly, the Court of Appeal in Huang [2005] INLR 247 decided that M* (Croatia) was wrong and that adjudicators were obliged to decide Article 8 claims on their merits.
) Additionally we also consider that the Adjudicator erred in law in failing to show that he had, when considering proportionality under Article 8(2), taken into account all relevant considerations. Indeed it is difficult to see that he conducted any kind of balancing exercise at all.
) Having decided that the Immigration Judge materially erred in law, we next considered whether we were in a position to decide the appeal for ourselves. We decided that we were, since Mr Ikie was unable to identify any evidence concerning recent developments...
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Upper Tribunal (Immigration and asylum chamber), 2014-02-26, [2014] UKUT 85 (IAC) (Shahzad (Art 8: legitimate aim))
...GS (Article 8, public interest not a fixity) Serbia and Montenegro [2005] UKAIT 00121; PO (interests of the state –Article 8) Nigeria [2006] UKAIT 00087, Nasim and others (Article 8) Pakistan [2014] UKUT 25 (IAC)[14], [19]; Blake J in Mansoor [2011] EWHC 832 (Admin) [38]. (Indeed in the SSH......
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Shahzad (Art 8: Legitimate Aim) [Asylum and Immigration Tribunal]
...GS (Article 8, public interest not a fixity) Serbia and Montenegro [2005] UKAIT 00121; PO (interests of the state -Article 8) Nigeria [2006] UKAIT 00087, Nasim and others (Article 8) Pakistan [2014] UKUT 25 (IAC) [14], [19]; Blake J in Mansoor [2011] EWHC 832 (Admin) [38]. (Indeed in the ......
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KL (Article 8-Lekstaka-delay-near-misses)
...to the interests of the state in the maintenance of effective immigration control: see PO (Interest of the state-Article 8) Nigeria [2006] UKAIT 00087. A further point of importance is that although once a person has turned 18 and so can no longer benefit from immigration rules or policies ......
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Upper Tribunal (Immigration and asylum chamber), 2007-05-18, [2007] UKAIT 44 (KL (Article 8, Lekstaka, delay, near-misses))
...to the interests of the state in the maintenance of effective immigration control: see PO (Interest of the state-Article 8) Nigeria [2006] UKAIT 00087. A further point of importance is that although once a person has turned 18 and so can no longer benefit from immigration rules or policies ......