VW and MO (Article 8-insurmountable obstacles)
|England & Wales
|Asylum and Immigration Tribunal
|Mr Justice Hodge OBE,Storey
|15 January 2008
| UKAIT 21
|15 January 2008
 UKAIT 21
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Mr Justice Hodge OBE, President
Senior Immigration Judge Storey
For the appellants: Mr R Khubber of Counsel instructed by Islington Law Centre
For the respondent: Mr J Wright, Home Office Presenting Officer
VW and MO (Article 8-insurmountable obstacles) Uganda
(i) The case of (HL) has not affected the need for a structured approach to Article 8. Subject to the need to avoid applying too high a threshold to the issue of interference, and not applying a legal test of “truly exceptional”, the five-stage approach set out in (HL) remains correct.
(ii) The test or criterion of “insurmountable obstacles” remains part of UK and Strasbourg jurisprudence on Article 8. The fact that both UK and Strasbourg decisions sometimes formulate this test in terms of “reasonableness” or “seriousness” shows that it is not a test subject to strict definition. Whichever of these formulations is used, however, an applicant must show more than a degree of hardship.
(iii) If there are no insurmountable obstacles or serious difficulties in the way of family members accompanying an applicant abroad, special reasons need to be shown for why an adverse decision is not to be considered proportionate.
The first appellant is a national of Uganda. On 13 February 2002 her asylum claim was refused but she was granted Exceptional Leave to Remain (ELR) until 24 December 2002 to coincide with her 18 th birthday. The second appellant is her daughter who was born in the United Kingdom on 11 November 2004 (her father is a British citizen). On 11 May 2007 the respondent decided to refuse to grant the first appellant further leave and to refuse to vary leave to remain in the United Kingdom. The second appellant was refused on the same basis. In a determination notified on 18 September 2007 Immigration Judge Bryant found that the first appellant had not given a credible account of her past experiences in Uganda and dismissed both their appeals on asylum, humanitarian protection and Article 3 grounds. He also rejected their Article 8 grounds of appeal.
The grounds for review were limited to challenging the immigration judge's decisions in relation to Article 8 ECHR. The immigration judge had accepted that the appellants had a private and family life in the United Kingdom but did not consider that their proposed removal (which would arise in consequence of the immigration decisions made against them) would amount either to interference or to a disproportionate interference with the right to respect for that family life.
The grounds submitted that the immigration judge erred in several respects: (1) in finding that there was no interference; (2) by relying unduly in assessing the issue of proportionality on an “obsolete” test of “insurmountable obstacles”; (3) by failing to give proper weight to the degree of disruption the appellants' removal would cause both to them and to the second appellant's father; (4) by failing to consider and appreciate the relevance of the Home Office delay in making a decision; and (5) in overemphasising the relevance of the first appellant's precarious immigration status when embarking on a relationship with her British citizen partner.
In his skeleton argument Mr Khubber contended, inter alia, that the appellants' submissions on Article 8(2) had been strengthened by the recent decision of the Court of Appeal in , which concerned the threatened removal of a person who had a settled British citizen husband. In oral submissions Mr Khubber contended that the effect of recent United Kingdom and Strasbourg case law on Article 8 was to require far greater weight to be placed on the notion of striking a fair balance and on the degree of disruption that a removal decision caused to a person's right to respect for family life.
Contrastingly, Mr Wright asked us to find that the immigration judge had properly applied the approach set out by the House of Lords in and . He had taken into account all relevant family details, including the social worker report. The position of the appellant's partner in was significantly different from that of the appellant's partner in the instant case.
We find that the immigration judge erred in law but that his error was not material.
We turn to the first ground of review, which was that the immigration judge erred in finding that the proposed removal of the two appellants would not amount to an interference. Mr Khubber submitted that the immigration judge's approach to this issue ran contrary to the approach set out by Lord Bingham in , since elaborated in . In one respect this submission cannot be right. Confining ourselves purely to the immigration judge's wording of the test relating to interference, error is hard to find, since it was the same as that adopted by Lord Bingham in : at paragraph 90 (reiterating paragraph 88) the immigration judge specifically reminded himself that the second question which he had to ask was that posed by Lord Bingham, namely whether “the proposed interference by the respondent would not have consequences of such gravity as potentially to engage the operation of Article 8”. However, so far as concerns the immigration judge's application of this test, we accept that he fell into precisely the type of error highlighted in , and , in that he effectively applied a test of “exceptionally grave interference” and so wrongly treated the threshold for the engagement of Article 8(1) as being especially high. In the Court of Appeal stated at para 28 that:
“It follows, in our judgement, that while an interference with private or family life must be real if it is to engage art 8(1), the threshold of engagement (the “minimum level”) is not a specifically high one.”
In Sedley LJ stated:
“…I agree nevertheless with Auld LJ that the essential change in our approach following will be that rather than take the threshold of entry into Article 8(1) to be some exceptionally grave interference with private or family life, tribunals and courts will take the language of the article at face value and wherever an interference of the kind the article envisages is established, consider whether it is justified under Article 8(2).”
We deduce that the immigration judge applied just such a test from his evident unwillingness, when considering the issue of interference to treat as of any significance the fact that the first appellant had been in the United Kingdom since December 2001, had been granted (albeit only until her 18 th birthday) ELR, had commenced family life with a partner who was a British citizen and had had a child with him. The immigration judge had regard to these factors when considering proportionality but only obliquely referred to them when considering interference and its gravity: indeed, at paragraph 89 he appeared to regard the above factors as relevant (along with Home Office delay) only to whether they “might increase [her] ability to demonstrate family or private life bringing her within Article 8(1).”
However, as Mr Khubber conceded, this error could not in itself be material, since the immigration judge went on to make alternative findings regarding proportionality and so assumed that Article 8(2) was engaged. Nonetheless, argued Mr Khubber, that did not rescue matters, since the immigration judge's error of law in relation to the issue of interference “contaminated” his findings under Article 8(2) dealing with proportionality. He confirmed that no challenge was made to the immigration judge's assessment that the proposal to remove was “in accordance with the law” and pursued a legitimate aim within the meaning of Article 8(2).
So we must turn to examine the immigration judge's treatment of the issue of proportionality. One thing which will already be clear from our earlier references to post- cases is that there is no question of meaning that decision-makers are no longer to apply the same structured approach to Article 8 as before. Subject to the clarification that (i) to establish interference the threshold is not an especially high one and (ii) that in assessing proportionality there is no legal test of “truly exceptional circumstances”, Lord Bingham's five-stage set of questions as set out in remain the correct framework for making structured decisions. That is made abundantly clear in . In that schema the issue of proportionality under Article 8(2) arises under Lord Bingham's fifth question.
In general terms we consider that the immigration judge's approach to the balancing exercise under Article 8(2) was exemplary. Having identified the relevant guidance of the higher courts in and in , he set out the factors, counting for and against the appellants which had particular relevance in this case. At para 84 he did not find it proved “that there are indeed insurmountable obstacles to the family, being the appellant, her daughter and her partner, living together in Uganda, even though this would indeed involve a degree of hardship for some or all members of the family” and at para 92 he stated:
“The fifth and final question is whether the proposed interference by the respondent is proportionate to the legitimate aims of the respondent. I take into account my findings under the Refugee Convention and Articles 2 and 3 of the Human Rights Convention; the length of time the appellant has been in this country and the length of her partnership with Mr A;...
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