Secretary of State for the Home Department v Akaeke

In the present case we are concerned with the application of the principle of proportionality for the purposes of Article 8 of the Human Rights Convention, in the consideration of an appeal under immigration law. In Huang v Secretary of State [2005] EWCA Civ 105, it was established that a tribunal in such a case, when exercising jurisdiction over both fact and law, is not bound by the Secretary of State’s assessment of proportionality, but must form its own judgment on the issue. It was emphasised that this does not entitle the tribunal to question the merits of immigration policy, which is set by the immigration rules, under the mandate given by Parliament. An adjudicator could in a proper case allow an appeal against removal on Article 8 grounds –

“… if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the Appellant’s favour, notwithstanding that he cannot succeed under the rules”.

The essential facts of the present case can be shortly stated. The claimant entered the country illegally not later than November 1994. She claimed to have been persecuted in Nigeria, and made a claim for asylum which was refused in December 1995. In February 1996 she married her present husband, who is a British citizen. Her application to remain on the basis of her marriage was refused in September 1996, because the marriage post-dated enforcement action. Further claims were made and rejected. In December 1998 she was detained pending removal, but was released following an application for judicial review of the Secretary of State’s rejection of her latest claim. That application was dismissed. She then made a further application in February 1999 to remain on the basis of her marriage, relying also on Article 8 of the Convention (although at this time the Human Rights Act 1998 had not come into force). That application was not determined for over three years. There was then a successful appeal by her to the adjudicator, followed by an unsuccessful appeal by the Secretary of State to the IAT, the decision on which was given in August 2003. The subsequent delay in the case reaching this court was apparently due to the fact that this case, along with others which depended on proportionality, was awaiting the decision in Huang,

Thus, by one means or another she has been able to stay in this country unlawfully for over 10 years. It should be emphasised, however, that, following her marriage to Mr Akaeke (which, I understand, is accepted as perfectly genuine), the issue is not whether she will in due course be able to live lawfully in this country. In normal circumstances her marriage would entitle her to that. The issue is whether she should be required to return to Nigeria in order to make her application, and take her place in the queue.

Maintenance of a fair and consistent immigration policy demands that even applicants with an indisputable claim to enter the country should not be able to jump the queue by entering illegally (see R (Mahmood) v Secretary of State [2001] 1WLR 840). It is clear therefore that, once her asylum application had failed, and notwithstanding her marriage to a British citizen, immigration law required the claimant to leave the country and renew her application from Nigeria. In normal circumstances, there would be strong objections to her being allowed to gain an advantage from the fact that she failed to do so. Her claim to be treated by the adjudicator as an exception to that normal rule depended, not on any special merit on her side, but principally on failures on the part of the Secretary of State.

As I have said, more than three years elapsed between the making of the claimant’s renewed application in February 1999, and the determination in May 2002. In the meantime, her solicitors had written on numerous occasions to the Secretary of State requesting a decision, but without any satisfactory answer or explanation. The only response was a reply to her former MP in June 2000. This stated –

“I do appreciate that there have been delays in this case and unfortunately owing to the large number of applications currently being processed by the Immigration and Nationality Directorate, I am still not in a position to give any indication as to the likely outcome of Mrs Akaeke’s application, or when she will receive notification of the decision. However, when a decision is reached, Mrs Akaeke will be advised as soon as practical by her appointed representatives”.

Although it was almost two years following that letter before a decision was reached, no other explanation was ever given to her for the delay, and no explanation has been given to this court.

The IAT (Chairman J. A. Freeman) commented in strong terms:

“We have now reached the decision under appeal. It took over three years and three months from the solicitors’ application, nine letters by them trying to get something done about it, and (which seems to have been what eventually brought about any action at all), the intervention of two successive MPs. Before that process even began, there had been two years (late 1996 to late 1998) in which neither side did anything at all, though the Home Office knew the claimant was here without any authority, following refusal of leave to appeal against Mr Disley’s decision; and only two months at most where the claimant delayed her own removal by applying for judicial review.

“There was no reason whatsoever why the solicitors’ application of 22 February 1999 should not have been dealt with in a matter of weeks: even if it had taken over 18 months, there would have been no further appeal to the Appellate authorities, so long as it had been dealt with before 2 October 2000 (when the relevant provisions of the 1999 Act came into force). The case was never let go to sleep by the solicitors, and the IND had every opportunity to give it its proper priority. That they did not do so is a public disgrace.”

Mr Robb, on behalf of the Secretary of State, has not sought to persuade us that these criticisms, from a very experienced chairman of the IAT, were unjustified.

The Adjudicator and the IAT held that taking into account the delay and the other factors in the case, it would be disproportionate for the claimant to be required to return to Nigeria.

The Adjudicator had no illusions about the lack of legal merit in her claims, whether to asylum, or to remain here on the grounds of her marriage under the immigration rules. Indeed, on the former, he noted that there was a doctor’s letter showing that she had registered in January 1994, and was therefore in this country at the time that she was claiming to have been suffering persecution in Nigeria.

In her favour, he noted that, since arriving in the United Kingdom, she had worked regularly, having obtained the necessary work permits; and that she was now a full time student at Westminster University, studying software engineering. He also formed a favourable view of her husband, who was a credible and honest witness, and was “clearly very hard working” having obtained a law degree in Nigeria. He had been working for the Post Office in this country for many years. The couple lived in rented accommodation and had not relied on benefits, and they were hoping to start a family.

For the purposes of Article 8 of the Convention, he had no doubt that the claimant had a family life in the United Kingdom, and that there would be an interference with that family life, if she were required to return to Nigeria even temporarily. (This aspect of the decision is not now in dispute). The only question therefore was whether the interference was “necessary and proportionate” under Article 8. He concluded that it was not:

“I accept that in normal cases an Appellant should return to her Country of origin, make the appropriate application for entry clearance and she should not normally be permitted to ‘jump the queue’ in this way. However, I take into account the special circumstances of the case, including the length of the relationship and the marriage, the fact that the parties are not receiving benefit, the university course, the employment record of the Appellant and her husband and the unfortunate delay of the Respondent. After taking all these matters into account, I consider it would be disproportionate for the Appellant (and possibly her husband) to return to Nigeria.”

This decision was upheld by the IAT (still exercising jurisdiction in respect of both fact and law). I have already referred to its criticisms of the Department’s inaction. On the proportionality issue it concluded as follows:

“Even though the delay in this case has not resulted in the birth of any children to the parties…, and even though there are no special circumstances beyond it, and even though refusal at the proper time would have been unchallengeable, we have no doubt that the average right-thinking citizen of this island would agree with the Adjudicator that what has happened in effect makes the decision reached, in the words of Edore, disproportionate and not striking a fair balance between the competing interests in play.

The public are entitled to have anyone without lawful right to be here removed from this island to pursue any claim to family reunion in the proper way, but both they and those concerned are entitled to expect that this should be done in a reasonable time, and with some regard by the authorities to the fact that they are dealing with human beings, whose lives go on, whatever the administrative basis for them.”

The IAT’s decision was promulgated on 28^th August 2003. It refused permission to appeal. On 2^nd December of that year the Secretary of State was granted permission to appeal by this court. The principal issue raised by the appeal is whether the IAT adopted the correct approach on the issue of proportionality, and in particular whether it was entitled to treat the Secretary of State’s delay in reaching a decision as determinative. In granting permission, Simon Brown LJ (as he then was) said:

“I grant permission with no particular enthusiasm essentially to argue the central point of principle said to arise here: whether delay (however long and inexcusable, as here) which causes the applicant no substantial prejudice can ever of itself make it necessarily disproportionate to remove an applicant.

Given the further lapse of time which must now occur until this appeal is determined, consideration should be given to whether this court, even if it upholds the view the appellant seeks to establish, should grant the relief sought.”

Since then, as I have said, the correct approach to the issue of proportionality has been explained by this court in Huang, and it is against that criterion that the appeal must be considered. The case mentioned by the IAT (Edore [2003] EWCA Civ 716) has been overtaken by Huang. However, it is rightly not suggested that that fact in itself is a ground for impugning the decision, since the Edore test was if anything more favourable to the Secretary of State than Huang.

Article 8 confers a right to respect for “private and family life”. At the heart of the present debate is paragraph 2 which prohibits any interference by a public authority with the exercise of the right –

“… except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

For the Secretary of State, Mr Robb accepts that the word “necessary” imports considerations of “proportionality”, and that this in turn requires a balance to be drawn between interference with family life and the competing considerations of public interest. However, in that balance, he submits, the importance of maintaining immigration control is to be taken as a fixed factor, or “a prior axiom of the debate”, in the words of Laws LJ in Huang:

“The adjudicator has no business whatever to question or pass judgment upon the policy given by the Rules. In our judgment his duty, when faced with an Article 8 case where the would-be immigrant has no claim under the Rules, is and is only to see whether an exceptional case has been made out such that the requirement of proportionality requires a departure from the relevant Rule in the particular circumstances. If that is right, the importance of maintaining immigration control is a prior axiom of the debate before him. It is not at all the subject of that debate…. The adjudicator is not required to address the relative importance of the public policy and the individual right. ” (Huang para 56)

Thus, says Mr Robb, delay is only relevant if it causes substantial prejudice to the claimant, and therefore adds weight to the matters to be put into the balance on her side of the scales. An example of such a case is Shala [2000] EWCA Civ233. The applicant had entered the country from Kosovo in 1997, but his application for asylum had not been decided until 2001. During that period he had married and formed a strong family relationship with his wife’s children. It was argued that the delay had caused prejudice because the policy had changed to his disadvantage in the meantime:

“The respondent’s delay in dealing with the appellant’s asylum application had meant that the appellant had been physically in this country for over 4 years before any decision was made, a period of such length that it is not surprising that he had formed an enduring relationship. Yet because of the delay he was treated as not having entered the United Kingdom but as merely having temporary admission. Had his application been dealt with with reasonable promptness, he would as a refugee from Kosovo been granted refugee status or at least exceptional leave to remain. This was the respondent’s policy up until mid – 1999 as the decision letter in this case shows. In that case the appellant would not have been required to leave this country and to apply from Kosovo but could have made his application for a variation in his leave from within the United Kingdom. There would then have been no interference with his family life. The delay on the respondent’s part in dealing with his asylum claim has disadvantaged the appellant and rendered the decision to remove him disproportionate.” (para 9, emphasis added)

The court accepted that this disadvantage was “an exceptional factor” which the tribunal had wrongly failed to take into account. Mr Robb contrasts that with the present case, where the delay caused no prejudice to the claimant. (If anything, it improved her position, as the IAT noted, in that the law changed so as to give her a further procedural means to challenge her removal.)

Arguably of more direct assistance to the claimant is another recent decision of this court, Senthuran [2004] 4 All ER 365 [2004] EWCA Civ 950. S had arrived in this country from Sri Lanka at the age of 17 in 1997, and applied for asylum. Thereafter he had lived with one of his adult brothers or sisters until 2001, when his application was refused. The adjudicator dismissed the asylum claim, but allowed his appeal under Article 8:

“The Appellant arrived in this country when he was 17 years of age and, even though he was a minor, the Home Office took an extraordinarily long period of time, namely over four years, to make a decision on his case. That was unreasonable, in my view, and gave the Appellant an expectation that he would in due course be entitled to remain in this country, and cashing in on that expectation he regarded himself as settled and found a job and studied as well. That progress, as far as he is concerned, has been continuing to date. The Appellant supports himself and lives in a close family unit with his mother, brothers and sister.”

The IAT allowed the Secretary of State’s appeal, on the grounds that any family life in this country was “tenuous”, and that in any event the immigration laws must take precedence. The Court of Appeal held that the IAT’s conclusion was not adequately supported by its reasoning, and remitted the matter for rehearing. Wall LJ, giving the judgment of the court (which included the President, and Laws LJ) said

“18.

Firstly, it is a striking feature of this case that the Appellant arrived in the United Kingdom in 1997 at the age of 17, and has been living continuously with one or more of his siblings ever since. These two aspects of the case immediately distinguish it, on its facts, from both Advic and Salad.

19.

Secondly, an equally striking feature of the case is that more than four years elapsed between the Appellant's arrival in the United Kingdom and the Secretary of State's refusal letter. The Adjudicator described the length of time taken by the Secretary of State to make a decision on the Appellant's case as "unreasonable". It is difficult to quarrel with that observation.

20.

In our judgment, the facts we have identified in the preceding two paragraphs are manifestly relevant to the IAT's consideration of Article 8, both in relation to the existence of family life and the proportionality of any interference with it. Yet it is clear from the IAT's reasoning (the whole of which we have set out) that it did not bring them into the equation. To put the matter in a slightly different way, the recitation of the Appellant's circumstances contained in paragraph 4 of the adjudication upon which the IAT founds its conclusion that there is no family life (alternatively that it is tenuous and interference by removal from the United Kingdom would be proportionate) appears to leave wholly out of account the highly relevant factors identified in paragraphs 18 and 19 of this judgment.” (emphasis added)

Mr Robb points out correctly that in that case it was during the period of delay that the claimant developed a family relationship with his siblings; in the present case it had already been formed by the claimant’s marriage. He also relies on the fact that in that case removal would lead to permanent rupture of family life, whereas the immigration rules provide the means for it to be renewed by an application for entry clearance as a spouse.

Neither point in my view detracts from the force of the judgment as authority on the narrow point identified by Simon Brown LJ when giving permission: that is, whether unreasonable delay, without substantial prejudice, can ever be enough to make removal being disproportionate. It is clear from the passage emphasised in the quotation, that Wall LJ was treating the delay as relevant, not only to the extent of the interference with family life, but also to the proportionality of removal. It is also implicit in paragraph 19 that he was treating “unreasonable delay” as in itself material to that issue, without needing to identify any specific prejudice. Although the adjudicator spoke of the delay creating “an expectation” that S would be allowed to remain, this was not a point mentioned in terms by Wall LJ. It is difficult to see any legal basis for such an expectation. It is perhaps no more than an expression of the general truth that (in the words of the present tribunal) immigration control is concerned “with human beings, whose lives go on”.

Mr Robb’s answer is that, if that is part of the ratio of the judgment, it is inconsistent with the later decision in Huang, and also with other cases which were not cited, notably (in this court) Anufrijeva v Southwark LBC [2004] QB 1124, adopting the approach of the Commission decision in Askar v UK (application No 2773/95, unreported).

The latter cases do not assist in my view. They show that culpable delay in handling an immigration application by itself may not amount to an interference with family life for the purpose of Article 8. Neither case was concerned with the present question: that is, whether, such an interference having been established, removal was a “proportionate” response. Had that line of authority been regarded as relevant to the facts of Senthuran, one would have expected it to have been relied on by counsel for the Secretary of State. It would certainly be a bold submission that the court (composed as it was) acted per incuriam in failing to have regard to it. I do not understand Mr Robb to go so far.

Nor do I see any necessary inconsistency with Huang. The “prior axiom” to which Laws LJ referred was immigration policy as established under parliamentary mandate, through the immigration rules. That, in my view, means immigration policy operated as Parliament intended. There was no issue there as to the conduct of the Secretary of State in giving effect to the mandate, nor as to the effect of unreasonable delay in handling applications. It is in that context that one must read Laws LJ’s statement that the adjudicator was not required to address “the relative importance of the public policy and the individual right”. He was not saying, as I understand it, that the public side of the balance is immutable. If there are factors which, in the special circumstances of a particular case, reduce the significance of the public policy considerations underlying immigration control in general, there is nothing in Huang, or in Article 8 itself, which requires them to be excluded.

Mr Robb is entitled to rely on the fact that the IAT did not in terms apply the test as later enunciated by Huang: that is, whether the case was “so exceptional on its particular facts” that the “imperative of proportionality” demanded an outcome in the claimant’s favour. However, where the management of immigration control had broken down to the extent that the IAT felt bound (without contradiction in this court) to describe it as “a public disgrace”, it hardly lies in the Secretary of State’s mouth to say that the facts were not “exceptional”. In any event, the appeal to this court is on a point of law only. Once it is accepted that unreasonable delay on the part of the Secretary of State is a capable of being a relevant factor, then the weight to be given to it in the particular case was a matter for the Tribunal, subject only to the constraints imposed by judicial review principles. In considering the application of those principles by this court , in my view, it is necessary to bear in mind the special nature of the tribunal, as one established by Parliament with specific responsibility for reviewing ministerial decisions in this field of law.

In Cooke v Secretary of State for Social Security [2002] 3 All ER 279, Hale LJ commented on the need for the courts to take “an appropriately modest view” of their supervisory role, when dealing with such specialist tribunals. Speaking in that case of the Social Security Commissioners, she said:

“Firstly, this is a highly specialized area of law which many lawyers - indeed, I would suspect most lawyers - rarely encounter in practice. Secondly, there is an independent two-tier appellate structure…. After the initial decision there is a fresh hearing before a specialist tribunal which is chaired by a lawyer and has an appropriate balance of experience and expertise amongst its members. After that there is an appeal on a point of law to a highly expert and specialized legally qualified body, the Social Security Commissioners. Thirdly, it is essential that that tribunal structure is sufficiently expert to be able to take an independent and robust view, particularly in cases where the government agency has gone wrong. It must be in a position to see through what the relevant sponsoring department is saying when it is arguing the case.

It is also important that such appeal structures have a link to the ordinary court system, to maintain both their independence of government and the sponsoring department and their fidelity to the relevant general principles of law. But the ordinary courts should approach such cases with an appropriate degree of caution. It is quite probable that on a technical issue of understanding and applying the complex legislation the Social Security Commissioner will have got it right. The Commissioners will know how that particular issue fits into the broader picture of social security principles as a whole. They will be less likely to introduce distortion into those principles. They may be better placed, where it is appropriate, to apply those principles in a purposive construction of the legislation in question. They will also know the realities of tribunal life. All of this should be taken into account by an appellate court when considering whether an appeal will have a real prospect of success. ” (para 15-16)

Similar caution was advocated by the House of Lords in Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, when Lord Hoffmann criticised the Court of Appeal for interfering with the decision of the Commissioners on the interpretation of the provisions relating to overpayments. As he said –

“(The Commissioners) have practical experience of the day-to-day working of the benefit system and I think that the principles they have devised to give effect to the legislative scheme dealing with overpayments are entitled to great respect.”

Such views echo those expressed 30 years ago by Lord Denning MR in R v Preston Supplementary Benefits Appeal Tribunal [1975] 1 WLR 625, 631-2, when he urged the courts-

“… to leave the tribunals to interpret the Act in a broad and reasonable way according to the spirit and not the letter… The courts should only interfere when the decision of the tribunal is unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision…”

He emphasised that “in order to ensure “uniformity of decision” the courts should remain “ready to consider points of law of general application”.

Hale LJ thought that a similar approach would be appropriate for other specialist tribunals, such as employment tribunals and immigration tribunals. I agree. Previous concerns at the variable quality of decisions of the Immigration Appeals Tribunal (see Koller [2001] EWCA Civ 1267) have been overtaken by improvements made under successive Presidents, which have been carried through into the work of the new combined Asylum and Immigration Tribunal. Indeed, perhaps one indication of the Government’s confidence in the work of the tribunal was that initially it was proposed to remove the control of the courts altogether, although that proposal was rejected by Parliament as constitutionally unacceptable (for a detailed account, see Rawlings: Review, Revenge and Retreat (2005) 68(3) MLR 378).

As Lord Denning recognised, the courts of course retain a vital role as final arbiters in relation to genuine issues of law, such as the interpretation of the relevant statutes, and in relation to the overall fairness of the procedures. However, they should, in my view, be cautious before interfering with decisions on matters within the special expertise and competence of the Tribunal. In this field, such matters include, not only the evaluation of the difficult and often harrowing evidence produced in support of individual claims, but more generally questions of general principle relating to the conditions in particular categories of claimant or particular countries (see, for example, the “country guidance” practice explained by Ouseley J as President of the IAT, in NM Somalia CG [2005] UK IAT 00076).

Judgments on questions of proportionality in particular cases are likely to fall into the same category. Within the parameters laid down in Huang, the tribunal, against the background of its day-to-day experience, is much better placed than the courts to judge whether the circumstances of a particular case are sufficiently exceptional to justify a departure from the ordinary policy approach. That applies not only to the assessment of the circumstances of a particular applicant, but also to judgments about the management of the system by the Secretary of State. In my view, the making of such judgments in exceptional cases is well within the proper boundaries of the supervisory role given to the tribunal by Parliament. (I accept of course that, to accord with Strasbourg jurisprudence, a judicial review court may sometimes find itself conducting a more intensive review in the human rights context than is required by conventional Wednesbury principles: see Huang para 43ff, applying Lord Steyn in Daly [2001] 2 AC 532, para 27-8. However, that was in the context of a court reviewing an executive decision, rather than, as here, the decision of a subordinate tribunal which was itself able to conduct the independent judicial review required by the Convention.).

The question for the adjudicator and the tribunal was whether, on the particular facts of this case, it was “necessary” for the maintenance of immigration control that the applicant should be sent back to Nigeria. In normal circumstances the answer would undoubtedly be yes, even though her application for entry is likely ultimately to be successful. The temporary disruption to her family life would be justified by the need to maintain public confidence in the fairness of the system overall. However, where the operation of the system had broken down to the extent shown in this case, the tribunal was entitled to take the view that confidence was unlikely to be materially improved by maintenance of a rigid policy of temporary expulsions. That judgment in my view was well within the proper sphere of the tribunal, and the court should respect it.

For these reasons, I would dismiss the appeal. (For completeness, I should note that I have had regard to the very recent decision of this court in Strbac v Secretary of State [2005] EWCA Civ 848. However, the factual context was wholly different, because the applicant had no separate claim to be allowed to enter under the rules.)

I agree.

I also agree.