KM v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE BUXTON: There are two appeals before the court. One is in KM v Secretary of State for the Home Department , and the other in Mando & Ors v Secretary of State for the Home Department . Put quite briefly, both of these cases involve the same issues and, save for one point, the same points of law as were before this Court in the case that it determined last week, ZT v Secretary of State for the Home Department .

2. In the light of the judgment of this Court in that case, Mr Rabinder Singh QC, realistically if I may say so, accepts that at least in this Court, he cannot continue to assert the main points that he otherwise would have wished to assert in these two appeals, since, as has always been recognised, they are substantially the same as those determined in ZT .

3. Therefore in those circumstances he has very properly indicated that in the case of Mando, he cannot further promote that appeal, and in the light of that concession, that appeal is dismissed. It is dismissed for the reasons and following the judgment in the case of ZT .

4. The same point applies in the case of KM , save for one particular aspect of that case, not addressed in ZT , which has been part of the argument in KM throughout.

5. That concerns the question of the Immigration Appeal Tribunal's decision on the aspect of proportionality in the case of the removal or proposed removal to Zimbabwe of a person suffering from the condition that the Applicant in KM suffers from.

6. The Immigration Appeal Tribunal addressed this matter on the basis of its own decision in the case of M (Croatia ), at the time when it was considered to be the law that the test for a Tribunal of whether a decision was proportionate under Article 8 of the European Convention on Human Rights was whether the Secretary of State's decision to expel the person, despite that involving an interference with her rights under Article 8, was such as no Secretary of State could reasonably have reached. In other words, without expounding the matter fully, effectively a Wednesbury test.

7. The law on that matter has now been altered by the decision of this Court in the case of Huang , where this court held that, far from the Tribunal's task being simply one of bringing test of unreasonableness to the Secretary of State's decision, the Tribunal itself must make its own decision on that matter.

8. Proportionality was addressed by the Immigration Appeal Tribunal in paragraphs 33 to 36 of its determination:

"33. This then brings the Tribunal to the question of a proportionality and the question of whether the Respondent's decision, namely to refuse the Appellant leave to remain such that she faces an imminent return to Zimbabwe, is unlawful by reason of being a disproportionate interference with her rights under Article 8. The Tribunal has in mind paragraph 28 of M (Croatia) starred and we therefore consider whether the Respondent's decision is unlawful because there is a disproportion which is so great that no reasonable Secretary of State could reach the conclusion he did, namely to refuse leave to remain.

"34. The Tribunal has considered the reasons given by the Respondent in the refusal letter of 26th October 2002. This letter does not expressly refer to Article 8, but after considering the Appellant's case for granting leave to remain on an exceptional basis and her case under Article 3 of the ECHR, the Respondent stated:

'In reaching a decision on this case the Secretary of State has balanced Ms Munyoro's rights against the rights and freedom of others and the general public interest. In particular he has observed that the resources of the National Health Service are limited and according to the Department of Health the cost of treating a HIV/AIDS patient could be as much as £18,000 per patient per year. In view of this, it would be unrealistic to expect the NHS to treat everyone who could not obtain treatment of a similar standard in his or her own country. To do so would both overload the NHS and be unfair to British citizens who, as nationals and taxpayers, have first call on the National Health Service.'.

"In the light of these considerations the Tribunal is wholly unable to conclude that the Respondent's decision to refuse leave to remain was a decision which no reasonable Secretary of State could take or was in any other unlawful. In reaching this conclusion the Tribunal has had well in mind the point raised by Mr Walsh as described in paragraph 20 above.

"35. Quite apart from the foregoing considerations, the Tribunal concludes that, while we have assumed in the Appellant's favour that Article 8 is potentially available, there would in our view have to be exceptional and clear reasons for concluding that the Respondent's decision to refuse leave to remain was unlawful under Article 8 in a case where it was lawful under Article 3. While it is for the Court of Appeal to carry out the further scrutiny regarding Article 8 and Razgar (as mentioned in Laws LJ's judgment at paragraph 42 of N ) we recognise the difficulties of justifying an analysis which enables an Applicant, who has failed under Article 3 on the grounds that the circumstances of the case are not sufficiently extreme, to succeed on Article 8 (supposing it to be available in theory to the Applicant) on the basis that the interference is a disproportionate interference with private life. We note the observations of Simon Brown LJ in Djali [2003] EWCA Civ 1371 at paragraph 29. We consider that the same arguments as inform the conclusion under Article 3, and which lead to the conclusion that only extreme case can succeed under Article 3, are also highly relevant on the question of proportionality under Article 8. They may not be necessarily determinative. The position might possibly be different (we express no view) in a case where the Applicant suffers from a rare condition for which inexpensive treatment is available in the United Kingdom and no treatment is available in the country of origin, and where to allow the particular Applicant to remain would have no significant consequences for the provision of health services to British citizens (as nationals and taxpayers) because of the particularly rare nature of the condition in question. However bearing in mind the AIDS epidemic and the consequences to the National Health Service for allowing anyone with HIV/AIDS to remain in the United Kingdom so as to achieve the better treatment available here (as compared with the worse or no treatment which would be available in the country of origin) we conclude that on the facts of the present case the decision under Article 8, so far as concerns lawfulness and proportionality, follows the conclusion on Article 3. There is no justification for reaching a different conclusion.

"36. We recognise that this is indeed a case which demands sympathy on pressing grounds. However such sympathy cannot translate into a successful appeal under either Articles 3 or 8 of the ECHR."

9. Mr Rabinder Singh's short point is this. It is apparent from paragraphs 33 and 34 that the Immigration Appeal Tribunal applied, as was understandable, the jurisprudence of M(Croatia) , and came to the conclusion in paragraph 34 that:

"The Tribunal is wholly unable to conclude that the Respondent's decision to refuse leave to remain was a decision which no reasonable Secretary of State could take or was in any other way unlawful."

10. If the Tribunal had stopped at that point, then it would undoubtedly be the case that there had been an error on the law as it now stands after Huang , and that it had determined the proceedings before it on the basis of that incorrect legal view. However, it then went on in paragraph 35 to address the case from its own perspective. Mr Rabinder Singh argues that that passage was simply a continuation of or reference to the legal basis that it had used in paragraphs 33 and 34.

11. The issue is simply, I think, a question of the reasonable construction and understanding of the Tribunal's judgment. Paragraph 35, starts with the words, "Quite apart from the foregoing considerations", words that, as it seems to me, are departing from what was said in paragraphs 33 and 34, and quite consciously going on to explain the Tribunal's own view of the question of proportionality. The Tribunal then does that in some considerable detail in the remainder of paragraph 35. In those circumstances, I think there is no doubt that the Tribunal did in fact express its own view on the issue of proportionality and came to a conclusion on that matter that is properly reasoned and is clearly open to it.

12. Therefore in practical terms the Tribunal did apply its mind to the task that this court has now imposed on it in Huang , and therefore did not determine the case solely or dispositively upon its view of what a reasonable Secretary of State could have done. In those circumstances, the error of law which, in the law as it now stands, is undoubtedly to be found at paragraphs 33 and 34, cannot be said to have been determinative of the Tribunal's decision. The Tribunal would have decided the case in exactly the same way had the law in Huang been before it. In those circumstances it cannot be said that the error of law was material to the Tribunal's decision and there are therefore no grounds for remitting the matter to that Tribunal as Mr Rabinder Singh asked us to do.

13. I should say as a footnote, and as Mr Rabinder Singh accepted, the question of the materiality of an error of law is to be determined according to the effect of the error upon the Tribunal's determination at the time it was made. It is not to be determined according to how the Tribunal might approach the matter were it to be considering the matter in the state of facts and the state of knowledge about the situation in Zimbabwe that now exists. As to that I say no more, some observations having been made about that matter in the judgment in ZT . That issue, for the reasons I have indicated, cannot be relevant to the decision that this Court has to make today.

14. I therefore would dismiss this appeal both on the same grounds as were apparent in Mando and also in respect of the particular point put before us by Mr Rabinder Singh today.

15. LORD JUSTICE SEDLEY: I agree.

16. LORD JUSTICE BROOKE: I also agree, both appeals are therefore dismissed.