VW (Uganda) v Secretary of State for the Home Department; AB (Somalia)
|England & Wales
|Lord Justice Sedley,Lord Justice Wilson,Lord Justice Mummery
|16 January 2009
| EWCA Civ 5
|Case No: C5/2008/1098 & C5/2008/1441
|Court of Appeal (Civil Division)
|16 January 2009
 EWCA Civ 5
Lord Justice Mummery
Lord Justice Sedley and
Lord Justice Wilson
Case No: C5/2008/1098 & C5/2008/1441
AS/00321/2007 AND AS/00322/2007
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
Mr R Drabble QC and Mr R Khubber (instructed by Islington Law Centre) for the First Appellant Mr R Drabble QC and Miss A Smith (instructed by Messrs Clifford Johnston & Co) for the Second AppellantMiss L Busch (instructed by Treasury Solicitors) for the Respondent
Hearing date: Friday 14 November 2008
Lord Justice Sedley:
We have heard these appeals together for two reasons. One is that the decision in was explicitly predicated on the decision in , so that it was thought that the two would stand or fall together. The other is that both sides have invited the court, in the light of recent jurisprudence, to set out the correct approach to ECHR art. 8 in the context of removals or refusals of entry clearance. In this we have had the advantage of informed and constructive submissions from Richard Drabble QC for the two appellants and Lisa Busch for the Home Secretary, as well as the full and scholarly decision of the AIT (Hodge P and SIJ Storey) in .
VW is a national of Uganda. Now aged 23, she entered the UK illegally on 23 December 2001, two days short of her 17 th birthday. Her case —omitting detail which might identify her —was that she had been forced to flee Uganda because, for political reasons, she and other family members were first placed under house arrest and then held prisoner by soldiers who occupied the house, repeatedly raped the Appellant, struck her in the face with a pistol and threw chemicals in her face. She applied for asylum in the UK on 27 December 2001. The application was refused by the Respondent on 13 February 2002 but the Appellant was granted exceptional leave to remain until 24 December 2002 when she would become 18. The Appellant submitted an application for further leave to remain on 20 December 2002 for herself and her daughter, M, who had been born in the UK in November 200This application was refused by the Respondent on 11 May 2007.
The appellant's partner, the father of her daughter, is of Nigerian ethnic origin but is a citizen of the United Kingdom, having been born here. At the age of 3 he went with his family to the United States and then to Nigeria, where he lived from 1966 to 1992, when the family moved back here. There was no suggestion that he had any familiarity with Uganda or with the languages spoken there.
Their daughter, born in November 2004, is accordingly a British citizen. Although it was not until after the first AIT decision that a certificate of citizenship was obtained for her, this has always been her legal status.
A measured report from a social worker, Ms Finlayson, said:
“While neither parent felt comfortable choosing a fate for [the daughter], they both agreed that she would be safer to remain in England with her father. They believe the risks in her moving to Uganda would be too high. However, they both stressed their belief that separating [her] from her mother, who is a significant attachment figure to her, would destabilise her and could contribute to long-term issues for her in the future.”
The immigration judge dismissed her appeal both on asylum and human rights grounds, concluding that although the Appellant and her daughter enjoy a family life with her partner, the child's father, who is a British citizen, and that although removal may involve a degree of hardship, there were no insurmountable obstacles to the family living together in Uganda, so that the proposed interference by the Respondent would not have consequences of such gravity as to potentially engage the operation of Article 8. Further and alternatively, if Article 8 was engaged, removal would not be disproportionate because there were no insurmountable obstacles to the whole family living together in Uganda.
The AIT ordered reconsideration in relation to Article 8. Before the hearing of the first stage of the reconsideration before the AIT, the Appellant's daughter obtained a certificate of British citizenship, to which she had been entitled from birth. Following a hearing on 15 January 2008 the AIT concluded that, although there had been an error of law, it was not material. They ordered the dismissal of the appeal to stand.
VW now appeals, by permission of Buxton LJ, on the following grounds:
(a) That the AIT made a material error of law by using an 'insurmountable obstacles' test of proportionality. The correct test of proportionality requires a comprehensive evaluation of what can reasonably be expected of the appellant in the light of the values protected by art.8
(b) That in weighing the factors relevant to proportionality the AIT failed to evaluate the impact of removal on the family life of VW's partner, a British citizen who had never been to Uganda, and on the child if – as the appellant indicated would happen – she was left here with her father.
(c) That, contrary to the finding of the AIT, it was for the Home Secretary to establish the justification for removal.
The Appellant and her six children, aged between 7 and 19, are Somali nationals from Mogadishu living without permission in Ethiopia. The sponsor is the Appellant's husband. They fled from their home country, Somalia, when civil war broke out in 1991, and settled in Nairobi, Kenya, where he and his wife made a living as tea merchants. Their children were all born during the ten years for which they lived there, but the family began to be harassed by the police as illegal immigrants.
In November 2000 the sponsor flew to the UK and claimed asylum. The application was refused and an appeal failed, but he was granted exceptional leave to remain in the UK until 19 January 2005. In February 2005 he was granted indefinite leave to remain because it was recognized that it was not right to expose anyone to the violence and lawlessness then prevailing in Somalia. Also in 2005, the appellant and her children, on the sponsor's instructions, crossed into Ethiopia, where they have since lived without permission and in straitened circumstances, though with sufficient income to have at least some of the children privately educated. The sponsor in 2006 visited them there.
The Appellant applied for entry clearance to join her husband in December 2005. This was refused. In November 2006 the appeal against refusal was heard by Immigration Judge de Haney who dismissed the appeal on the ground that the family could not be adequately provided for without recourse to public funds. He made no assessment under Article 8 of the ECHR. An application for reconsideration on human rights grounds was refused by Senior Immigration Judge Spencer, but on renewal before the High Court, Dobbs J ordered reconsideration of the immigration judge's approach to Article 8.
On a first stage reconsideration the AIT found that IJ de Haney had materially erred in law by failing to make proper findings under Article 8 and adjourned the matter for a second stage reconsideration hearing on human rights grounds. The Respondent accepted that the Appellant and her six children had established an extant family life with the sponsor. But in a determination promulgated on 16 April 2008, Immigration Judge Mather, while accepting that art. 8(1) was engaged by the refusal to grant the family entry clearance, dismissed the appeal on the grounds that there were no 'insurmountable obstacles or serious difficulties' preventing the Appellant, the sponsor and their children from maintaining their family life in either Ethiopia or Somalia.
The Appellant sought permission to appeal to the Court of Appeal. This was refused by SIJ Perkins on the ground that 'The grounds complain with some justification that the Immigration Judge tried to apply the 'insurmountable obstacles' test but, as is explained in , although the test can be formulated in many ways, each of the correct formulations is equally demanding. Nothing turns on this alleged error.'
Permission to appeal was, however granted by Scott Baker LJ, who considered that the AIT's determination and reasons did not fit easily with paragraph 12 of Lord Bingham's opinion in EB (Kosovo).
The first ground advanced by the Appellant in this case is that the AIT have improperly applied an ' ' test in the assessment of the issue of proportionality.
The second ground is that the immigration judge did not give adequate reasons for his conclusion that the family would not face anything more than a degree of hardship in establishing family life in Somalia or Ethiopia. In reaching this conclusion, the Immigration Judge noted that the sponsor has indefinite leave to remain in the UK, is fit, well and capable of working, and the ages of the children. The Appellant argues that a proper consideration of proportionality under Article 8(2) requires a balancing of all relevant circumstances. These include the fact that Somalia has been accepted as being too dangerous to return the sponsor to, and that he and his family have no legal right to be in Ethiopia.
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