PO (Nigeria) v THE Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Wilson |
| Judgment Date | 18 April 2007 |
| Neutral Citation | [2007] EWCA Civ 438 |
| Docket Number | Case No: C5/2007/0265 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 April 2007 |
[2007] EWCA Civ 438
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. TH/05664/2004]
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Dyson and
Lord Justice Wilson
Case No: C5/2007/0265
MR D COLEMAN (instructed by Messrs Ikie Llp) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
This is a renewed application for permission to appeal against the decision of the AIT promulgated on 24 October 2006 dismissing the appellant's appeal on a reconsideration, following dismissal by the adjudicator by a decision promulgated on 24 August 2004. The adjudicator had dismissed her appeal against the refusal of the Secretary of State to grant her indefinite leave to remain in the United Kingdom. The appellant is a citizen of Nigeria. She was born in 1960. She entered the United Kingdom in December 2000 and was given six months leave to enter as a visitor. Her appeal before the adjudicator was based on the Immigration Rules as well as Article 8 of the European Convention on Human Rights. Her appeal to the AIT was confined to the Article 8 issue.
She first came to the United Kingdom when she was 9 years of age and was at school here for 9 years. She then returned to Nigeria where she went to university and from there into the teaching profession. She rose to a position equivalent to Deputy Head of a school. She married, but tragically after six years of marriage, her husband died of cancer.
As I have said, in December 2000 she came to the United Kingdom. She was lonely and wanted to be near her three adult siblings, who were all in this country. Whilst here, she strengthened her knowledge of teaching and undertook several courses. She has received glowing references from senior teachers in this country.
The AIT decided that the adjudicator had erred in law in his approach to the Article 8 issue, not least because he had not undertaken the balancing exercise that is required by Article 8(2). It was common ground that the appellant had established a private and family life in the United Kingdom and that the decision refusing to vary her leave to remain amounted to an interference with it. The sole issue was whether the interference was disproportionate.
At paragraph 9 of its decision, the AIT referred to the decision of GS (Article 8 – public interest not a fixity) Serbia and Montenegro [2005] UKIAT 00121, a decision given by a tribunal presided over by Dr Storey, who also presided in the instant case. In paragraph 9 of the decision in the present case, the tribunal said that Mr Ikie, who then represented the appellant, had misunderstood the ratio of GS. The tribunal then said:
“That case, it is true, does highlight the point that the public interest side of the (imaginary) scales does not bear a fixed weight. However, the only factors it identified as justifying normally heavy weight not being given to the interest of the state in the effective maintenance of immigration control were of limited scope. They arose only where the state has shown by its own action or inaction that immigration control considerations required modification e.g. where it has adopted but not applied a policy to allow certain categories otherwise subject to strict immigration control. This reflects the observation made by Lord Bingham in Razgar at [19], when dealing with the [question 4] issue of whether the proposed removal is an interference which pursues a legitimate aim, that:
'… implementation of a firm and orderly immigration policy is an important function of government in a modern democratic State. In the absence of bad faith, ulterior motive or deliberate abuse of power, it is hard to imagine an adjudicator answering this question [question 4] other than affirmatively'.
At paragraph 10 the tribunal continued:
“Plainly, therefore, when addressing the issue of proportionality (Lord Bingham's question 5) it is only in very limited circumstances that the interests of the state and wider community in the maintenance of effective immigration control can not carry a heavy weight.”
At paragraph 11:
“In the type of circumstance described by Mr Ikie, by contrast, there has been no conduct of the state so as to justify modifying immigration control...
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AG (Eritrea) v Secretary of State for the Home Department
...to be compliant with art. 8.” 33 In the light of what we have said, reliance ought not to be placed by practitioners on the reasoning in PO (Nigeria) [2007] EWCA Civ 438, a reportable decision of this court refusing permission to appeal following their Lordships' decision in Huang on the g......
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AG (Eritrea) v Secretary of State for the Home Department
...Home DepartmentUNK[2006] EWCA Civ 1045; [2007] Imm AR 57; [2006] INLR 486 PO (Nigeria) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 438 R v Special Adjudicator ex parte Ullah; Do v Secretary of State for the Home DepartmentUNK[2004] UKHL 26; [2004] 2 AC 323; [2004] Imm AR ......