UE (Nigeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir David Keene,Lord Justice Richards,Lord Justice Ward |
| Judgment Date | 18 May 2010 |
| Neutral Citation | [2010] EWCA Civ 975 |
| Docket Number | Case No: C5 / 2009 / 1291 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 May 2010 |
[2010] EWCA Civ 975
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
Before: Lord Justice Ward
Lord Justice Richards
and
Sir David Keene
Case No: C5 / 2009 / 1291
[AIT Nos: IA/13561/2008, IA/13562/2008, IA/13566/2008, IA/13565/2008, IA/13564/2008, IA/13567/2008]
Mr Stephen Knafler QC and Mr Patrick J Lewis (instructed by Messrs Fisher Meredith) appeared on behalf of the Appellants.
Mr Jonathan Auburn (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
Sir David Keene:
This appeal raises an interesting and not unimportant point about the factors relevant to an assessment of proportionality in an Article 8 immigration case. None of the other grounds of appeal are being pursued.
The appeal comes from the Asylum and Immigration Tribunal (“the AIT”), which on the 13 February 2009 dismissed the appellants’ appeals against the Secretary of State's decision to refuse them leave to remain and to issue removal notices. That decision by the AIT was on a reconsideration, as I shall describe.
There are six appellants, a husband and wife and their four children, all of them being citizens of Nigeria. They first arrived in the United Kingdom in 1996, the father having leave to enter for employment purposes until 8 October 1997. Applications to remain beyond that date were refused and they left the United Kingdom in July 1999 and travelled to Ireland. They returned from there in August 2002. They then made applications for indefinite leave to remain in March 2005 and January 2006 outside the Immigration Rules but were refused on 28 May 2008 and notices of removal were issued.
Their appeals came first before Immigration Judge Dean in September 2008. All the children were by that date aged 18 or over. Their appeals relied upon their removal constituting a breach of their rights under Article 8 of the European Convention on Human Rights (“the ECHR”). The Immigration Judge, however, found that it would not amount to such a breach. Reconsideration was ordered on the basis that there were errors of law in her decision and fresh findings of fact were required on all issues. That reconsideration was carried out by Immigration Judge Youngerwood, whose determination is the one now under challenge. Unhappily the Immigration Judge did not have the benefit of any representative of the Secretary of State being present on that latter occasion.
The Immigration Judge found that the appellants had been lawfully in this country for about one year up to October 1997, but they had then remained without any legal status until July 1999 when they went to Ireland where they stayed for three years, returning to this country without leave in August 2002, and that the authorities were hardly in a position to know of their presence here until their applications in March 2005. The judge found that their right to family life under Article 8 was really only relevant to the first two appellants, the husband and wife, because the children were not merely adults but had shown a significant amount of independence and achievement. Removal of the father and mother to Nigeria would not interfere with their right to family life because they would be returned there together.
So the judge focussed upon the right to private life under Article 8, which he went on to consider in respect of each appellant. He found that Article 8 was engaged in relation to the right to private life. He also found that the interference with that right was in accordance with the law and was necessary for the promotion of immigration control. Consequently he regarded the ultimate question as being one of proportionality, what he described as “the balancing exercise”. On that he took into account the fact that there had been a delay of about three years by the Home Office in dealing with the appellants’ applications for leave to remain, though he noted also that the appellants appeared to have acquiesced in that delay. He took into account the fact that the appellants had known during the period since 2002 that they had no legal status in the United Kingdom and had taken no steps to bring themselves to the attention of the authorities for two-and-a-half years after their return from Ireland. In addition he took account of the effect of removal on each of the appellants in terms of their individual activities: in one case as a writer, poet and performer; in other cases on their educational progress and their work and cultural activities.
But what the judge was not prepared to put into the balancing exercise was the value of the appellants’ 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 paragraph 45 of his decision he said this:
“Although there is hardly an abundance of authority on this important issue I am firmly of the view that the proper approach, in considering the appellants’ individual Article 8 rights, is to take into account, in the balancing exercise, the impact of their work and activities in the community including their public recognition for those activities, only insofar as those activities impact on their individual development, autonomy and integrity. I do not consider that apart from those considerations I can or should take into account, as a stand-alone factor, of their contributions and value to the community as a form of utilitarian exercise divorced from the actual impact of removal of those appellants.”
It is that part of the decision which gives rise to the real issue in this appeal. It may be expressed thus. When the decision-maker is carrying out the balancing exercise required to determine whether removal is proportionate in an Article 8 case, is it relevant on any basis that the person in question is of value to the community in the United Kingdom, a value of which that community would be deprived if he were to be removed?
It should be noted that this is a different question from asking what would be the impact on the individual in question of removing him, even though that question also would involve considering the extent to which he may have been involved in community activities. That latter question is directed at ascertaining the strength of the individual's own ties to this country and the degree, consequently, of private life which he has established here, whether in terms of friends, education, work or leisure activities. That latter question considers the extent to which his right to private life would be interfered with by removal, an issue which arises both under Article 8(1) and then if there would be such interference again under Article 8(2) as part of the balancing exercise. But the first question, that now under scrutiny, is dealing with the effect of his removal on the community in the United Kingdom and, if relevant at all, is exclusively an Article 8(2) question.
On behalf of these appellants Mr Knafler QC submits that there is ample authority establishing that what is required in the proportionality exercise is a broad exercise of striking a fair balance between the individual and the interests of the community. He relies on decisions in R (Razgar) v SSHD [2004] UKHL 27, [2004] 2 AC 368 and Huang v SSHD [2007] UKHL 11 [2007] 2 AC 167. It is submitted that there is no reason why the interests of the community should be circumscribed in any way or confined solely to the maintenance of firm immigration control. There may be additional factors which strengthen the public interest in removal but equally there may be additional factors which point the other way. Mr Knafler also refers to the House of Lords decision in R v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1986] 1 WLR 910 where it was held that in deportation cases the effect on third parties of the deportation, including any loss of value to parts of the community in this country, was a relevant consideration to the exercise of discretion under the Immigration Rules. It is argued now that if those consequences of removal are not reflected in an Article 8 decision, then the interference with private life would not be “in accordance with the law” as required by Article 8(2).
But the main thrust of the appellants’ case goes to the need for the proportionality exercise to take account of the loss of benefit to the public. For the Secretary of State it is submitted that the public interest in Article 8 cases is confined to those interests of the state which go to justify the interference with the individuals’ Article 8 rights, that is to say, only those factors which in an immigration case relate to the need for his removal are to be reflected in the assessment of the public interest. One must look solely, contends Mr Auburn on behalf of the respondent, at the legitimate aim being pursued by the proposed removal and the factors which are relevant to that, which in immigration cases means the maintenance of firm immigration control. The rights conferred on individuals under the European Convention, he argues, are not a reward for good behaviour or for their contribution to society but are intrinsic. Such matters as delay by the Home Office in dealing with an application may sometimes be relevant, but only because they relate directly to immigration control and not because they have any freestanding status....
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