RU (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker,Lord Justice Richards,Lord Justice Pill |
| Judgment Date | 02 July 2008 |
| Neutral Citation | [2008] EWCA Civ 753 |
| Docket Number | Case No: C5/2007/2062/AITRF |
| Court | Court of Appeal (Civil Division) |
| Date | 02 July 2008 |
[2008] EWCA Civ 753
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM and IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Pill
Lord Justice Scott Baker and
Lord Justice Richards
Case No: C5/2007/2062/AITRF
HR001142006
Miss Charlotte Bayati (instructed by Messrs. S. Satha & Co.) for the Appellant
Mr Jonathan Auburn (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 13 May 2008
The appellant, who is aged 38, appeals with the leave of this court against the decision of the Asylum and Immigration Tribunal on 4 July 2007 rejecting his Article 8 claims on a redetermined appeal. The case has a long history and it is regrettable from everybody's point of view that it was not resolved long ago.
History
The appellant is a citizen of Sri Lanka. He arrived in the United Kingdom on 30 December 1993 and claimed asylum on arrival. His claim was rejected by the Secretary of State on 2 May 1996 and an adjudicator dismissed his appeal on 27 August 1997. On 10 October 1997 leave to appeal was refused and just 19 days later, on 29 October 1997, he made a fresh claim for asylum. An internal minute records that this was received by the respondent and that the appellant was given temporary admission until 5 May 1998. This included, in accordance with the practice at the time, permission to work.
Nothing of any significance happened thereafter until the Norfolk Enforcement Office served a form I.S.96 NW on the appellant which was dated 10 March 2005 and granted him temporary admission subject to a condition of residence and a requirement to report to the Immigration Officer on 10 May 2005. It also contained a restriction on any employment.
For reasons that are not explained, the fresh claim made in October 1997 was never dealt with and there is no documentary evidence that any action was taken on it by the respondent before 10 March 2005. It was only after the hearing before us had concluded that the respondent provided us with the I.S.96 NW form of that date. We are told by Ms Bayati, who appeared for the appellant, that it was before the original immigration judge; indeed he refers to it in his determination. We had been provided at the hearing with a later version of the I.S.96 NW dated 10 July 2005. The question is: what if any communication was there between the appellant and the respondent between the autumn of 1997 and 10 March 2005? I shall return to this shortly.
Following service of the I.S.96 NW on 10 March 2005, the appellant's solicitors wrote to the Secretary of State on 7 May 2005 requesting a grant of indefinite leave to remain due to the appellant's length of residence, his affiliations in the United Kingdom and on compassionate grounds. It is said that the appellant's solicitors (who had been instructed in place of his previous solicitors) had written an earlier letter of 24 March 2005 but neither side has provided us with a copy of that letter or the letter 7 May 2005 or indeed of a further letter from the appellant's solicitors to the respondent dated 27 May 200A minute on the respondent's file suggests the appellant was seeking reinstatement of the right to work which was granted by the further I.S.96 NW on 10 July 2005.
On 15 July 2005 the appellant's solicitors wrote to the appellant's Member of Parliament asking him to make representations for the appellant to be given indefinite leave to remain under “the new Home Office concession”. The Member of Parliament wrote promptly to the Secretary of State. Nearly 8 months later, on 6 February 2006, the appellant was refused leave to remain.
The appellant's circumstances.
On 6 April 2002 the appellant married a Sri Lankan national who had been refused asylum and whose appeal rights had been exhausted on 22 January 2002. They had met in 2000 when he was working at a petrol station. A serious relationship developed and they began living together in August 2000. The appellant has been running his own business since 2001. It is a petrol station in Norwich that is open all day every day. The business employs six people, three full-time and three part-time. The appellant's wife helps in the business which produces an annual income in the region of £38,000. She is employed as a library clerk in the records department of the Norfolk and Norwich University hospital.
The appellant and his wife bought a 3 bedroom house in 2002. Neither has been a burden on the State.
Following attendance at a fertility clinic, an IVF child was born to the appellant and his wife on 10 March 2006. The appellant has a brother in Sri Lanka, to whom he has not spoken for 6 years, and also a sister. His wife's mother is elderly and likewise lives in Sri Lanka. Both families come from the North East of the country and both were affected by the 2005 tsunami.
The appellant has a brother in the United Kingdom who has been granted British Citizenship. He sees his brother twice a week and his family provide some care for the child.
The appellate history.
The appellant appealed against the Secretary of State's decision of 6 February 2006 and the appeal was heard by Immigration Judge Oliver on 16 March 2006. Judge Oliver allowed the appeal on Article 8 grounds. On 3 April 2006 a senior immigration judge Mr Andrew Jordan, on the respondent's application, ordered reconsideration. On 15 February 2007 a panel presided over by Immigration Judge Blandy heard the first stage reconsideration and concluded that Judge Oliver had made material errors of law and directed that the appeal be set down for full reconsideration before any immigration judge other than Judge Oliver. That hearing took place before Immigration Judge Omotosho on 5 June 2007. She concluded that any interference with the appellant's Article 8 rights would be proportionate and that the respondent's decision under appeal would not put the United Kingdom in breach of the law or its obligations under the ECHR.
Ms Bayati puts the appeal before us under two heads. First she says that Judge Oliver made no material error of law and the Asylum and Immigration Tribunal had no basis for ordering a reconsideration. Secondly she submits that the second immigration judge (Omotosho) made material errors of law in dismissing the Article 8 appeal.
Immigration Judge Oliver's decision
The judge having correctly identified the questions he had to ask himself said at para 27:
“I find on the facts that there is very close family life in view of the marriage and a child has been born and private life because of the industriousness of the appellant. Obviously if he was removed there would be an interference. It must be said that his wife and child are dependants and, as has been stated above, they do not have any status in the U.K. The interference would be in pursuit of a legitimate aim and obviously in accordance with the law because he is an overstayer and has no right to remain. Thus the appellant states it is not proportionate to remove him. Therefore the burden of proof shifts to the Secretary of State on the balance of probabilities.”
He then went on in the following paragraphs to consider proportionality. In the opening paragraph of his determination Judge Oliver had set out the question he had to decide as “whether it would be proportionate or not to allow the appeal on Article 8 of the ECHR on the grounds, as it was submitted, that the Secretary of State took an unreasonable amount of time to make a decision and of course of the appellant's own personal circumstances.”
The first point made by Mr Jonathan Auburn, for the respondent, is that Judge Oliver wrongly concluded that if the appellant was removed there would be an interference with family life as well as with private life. There would, he submits, be no interference with family life because neither his wife nor child have any right to remain in the United Kingdom and they would be removed with him. There is no doubt that the real focus of the judge's decision was on proportionality and he was certainly entitled to concluded that there would be an interference of sufficient gravity with the appellant's private life as potentially to engage Article 8. It is unfortunate that he elided family life and private life in paragraph 27 in the way that he did. But he made clear in the very next sentence that the appellant's wife and child, although his dependants, had no status in the United Kingdom. Further, as Sedley L.J observed in AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 80 para 28, while an interference with private or family life must be real if it is to engage Article 8(1), the threshold of engagement is not an especially high one. There can be no doubt that that threshold was crossed in respect of the appellant's private life. Nevertheless the judge did not identify how removal would interfere with family life and Mr Auburn submits there would in reality be no interference.
The judge addressed the issue of proportionality by reference to the Court of Appeal's decision in Huang [2005] EWCA Civ 105, [2006] 1 QB 1 and whether the circumstances were truly exceptional. The law has, of course, moved on since then and following the House of Lords decision in Huang [2007] U.K. HL [2007], 2 WLR 581, exceptionality is no longer the benchmark. However, it is impossible to envisage that if the judge had applied the law as clarified by the House of Lords the result would have been different as the...
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