Mukarkar v Secretary of State for the Home Department

The appellant was born in January 1942 and is a citizen of the Yemen, where he lived until April 2000. He had been working with the Ministry of Labour until 1998, when he was injured in an accident. He came to this country in April 2000, ostensibly as a visitor, and was given 6 months leave to remain. He had given false information in order to obtain a visa. In November 2000 he applied, out of time, for indefinite leave to remain as a dependent relative under rule 317 of the Immigration Rules.

Rule 317 of the Immigration Rules makes provision for indefinite leave to be given to certain categories of dependant relatives of persons settled in the United Kingdom, under strictly defined conditions. They include (in summary) a parent who is over 65 and living alone, and who is financially dependent on a relative settled in this country. In the case of a parent who has not reached 65, the conditions are more rigorous; it is necessary to show that he is (or would be) “living alone outside the United Kingdom in the most exceptional compassionate circumstances…” (r 317((i)(e)). The application would normally have to be made from outside the country.

The appellant has been married twice (the second wife being the sister of the first), but is now separated. Both former wives now live in this country. Numerous family members are living in the UK, including three children by his first marriage, four children by his second marriage, twelve grandchildren (as at August 2005), and two brothers. In April 2000 he travelled with his son, Adel, with whom he had been living in the Yemen. Adel also is now lawfully settled here. The only members of his close family still in the Yemen are two sisters, with whom he has had no contact for many years.

His application under the rules was refused in October 2001. At that time a report from his doctor (dated September 2001) showed that he was suffering from various medical problems, including damage to his left shoulder, osteoarthritis in his knees, degenerative back pain, and intermittent confusion (Adjudicator para 14). In November 2001 he made an application under the Human Rights Act (relying on Articles 3 and 8 of the Convention). It was refused in March 2002.

His appeal came before an Adjudicator, Mr Ince, in July 2004. By that time evidence before the Adjudicator showed that his medical condition had deteriorated seriously. A social work report showed that he was diabetic, frail, and prone to falling, and could be doubly incontinent. A letter from his doctor, Dr Mothersdale, stated that he was not mentally or physically capable of giving evidence, that he would not be able to survive without someone caring for him, and that he had a tendency to self-neglect (para 20-21). He was living with, and being looked after by, his son Khalid (helped by his siblings). Khalid’s evidence (which I take to have been accepted by the Adjudicator) was that:

The Adjudicator reviewed the evidence of the medical facilities available in the Yemen, and of the appellant’s ability to pay for them. He accepted that that appellant’s need was not for particular medical treatment or for hospital care, but for “permanent and constant home help” which was currently being provided by his family. He also accepted that it was not reasonable to expect any of his children –

He held that there would be a breach of both Article 3 and Article 8 of the Convention. Of the former he said:

On Article 8 he said:

Although I will deal with the legal arguments in more detail, there is often a danger of over-complication in these cases. I will say at once that my initial view was that this was a straightforward case, and that Mr Ince’s decision should have been allowed to stand under Article 8. As will be seen, that remains my view.

The relevant legal principles in relation to Articles 3 and 8 are now well settled, notably by the House of Lords decisions in N v SSHD [2005] UKHL 31 and Razgar v SSHD [2004] UKHL 27, respectively. In the light of the former (given since Mr Ince’s decision) the Article 3 claim was in my view unarguable. By contrast, the case was clearly within the ambit of Article 8, in view of Mr Mukarkar’s strong family ties and dependency in this country, and the serious disruption which would be caused by his removal, even for a short period. That much is not in dispute.

As Mr Ince recognised, the only issue was that of proportionality. In normal circumstances interference with family life would be justified by the requirements of immigration control. However, it is recognised that a different approach may be justified in “in a small minority of exceptional cases, identifiable only on a case by case basis” (per Lord Bingham, Razgar para [20]). The House of Lords has declined to lay down a more precise legal test. Accordingly, whether a particular case falls within that limited category is a question of judgment for the tribunal of fact, and normally raises no issue of law (see Secretary of State v Akaeke [2005] EWCA Civ 947).

On any view there were persuasive arguments of compassion and common sense for allowing a frail and ageing man to remain in the care of his close family, all of whom are now lawfully settled in this country. But there were strong arguments the other way. The question for the Adjudicator was whether these circumstances were sufficiently exceptional to override the ordinary requirements of immigration control, taking into account also the deceptive means by which he had entered the country. That issue was one of factual judgement, not law. Mr Ince, having identified the correct legal tests, and for reasons which were carefully and fully explained, decided that issue in the appellant’s favour. Normally that would be expected to be the end of the matter.

However, I will now turn to consider the subsequent procedural history, before considering the legal arguments.

The Secretary of State applied for permission to appeal against the Adjudicator’s decision on a number of grounds. Permission was granted by a Vice-President of the IAT on 24^th January 2005. In doing so he invited the Secretary of State to reconsider the case, in view of the likely delay in listing the appeal and the Adjudicator’s “thoughtful” comments.

On 4^th April, 2005 the IAT was abolished and replaced by a single tier Tribunal, the Asylum & Immigration Tribunal (“AIT”). A useful summary of the relevant rules and practice direction applicable to appeals pending at that date is to be found in the judgment of Collins J in R (Wani) v Secretary of State [2005] EWHC Admin 2815 (attached as an appendix to this judgment). No issue was raised before us as to the correctness of that summary.

As an appeal which was pending before the IAT at the commencement date, the case had to be treated as though it had been ordered for reconsideration under Section 103A of the amended Act. On 24^th May 2005, a panel (chaired by a Senior Immigration Judge, Mr H Latter) decided that the determination was erroneous in law. They mentioned three points, to which I shall come below. They added -

The case came before a single Immigration Judge (Mr Fountain) in August 2005. He recorded that, to give effect to the panel’s direction and in compliance with the practice direction and the rules, he had agreed with the parties that he should:-

Mr Fountain’s “Determination and Reasons” runs to 33 pages. He conducted a detailed review of the relevant rules and case-law; he set out the “pertinent facts found by Mr Ince” (consisting of a verbatim quotation of twelve paragraphs from Mr Ince’s determination); and he summarised the additional oral and written evidence which had been presented to him (not apparently limited to the scope of para (2) of his direction).

Mr Fountain held that, in the light of the decision of the House of Lords in N, the claim under Article 3 could not succeed. Under Article 8, like Mr Ince, he accepted that there would be a serious interference with his family life, and that the only issue was that of proportionality. In respect of that he identified the relevant factors as being: (i) the deception practised by the appellant when he first entered the United Kingdom; (ii) his present circumstances and his reliance on his family for daily care; and (iii) the need to maintain immigration control. He concluded that it was not a “truly exceptional case” (the term used by the Court of Appeal in Huang – see below) so as to justify a departure from ordinary rules. In summary, the appellant’s medical condition was not life-threatening, and if it worsened, medical services were available in the Yemen; there was “no compelling evidence” that a member of his family could not return to the Yemen “for a short period”; and he had property in the Yemen which could be used to pay for care if not available from his family.

Accordingly he dismissed the appeal under both articles of the Convention. He concluded by recording the earlier request of the Vice-President for reconsideration of the case by the Secretary of State, commenting:

Quite apart from legal analysis, the immigration judge’s comment raised a serious question about the practical utility of spending further public money on this litigation. Regrettably, Mr Patel for the Secretary of State was unable to assist as to whether either request had been considered by the Secretary of State, or with what result.

I turn to consider the errors of law identified by the AIT panel, and the additional points on which the Secretary of State relies (based on the original grounds of appeal).

The following errors were identified by the panel:

Failing to apply the test set out in N v SSHD [2005] UKHL 31 to the claim under Article 3 (“the Article 3 issue”).

Failing to consider the relevance of the fact that it was doubtful whether the appellant fulfilled the requirements of rule 317, taking into account the case of Ekinci v SSHD [2003] EWCA 765 (“the Ekinci issue”).

Failing to apply the correct test in respect of proportionality, as set out in Huang [2005] EWCA Civ 105 (“the Huang issue”)

The other grounds relied on by the Secretary of State are (in summary):

The Adjudicator erred in law when transferring the burden of proof to the Secretary of State in relation to the availability of care in the Yemen.

He erred in law in concluding that the appellant would be unable to fund private care in the Yemen.

He erred in law in concluding that the appellant’s ability to fund private care in the Yemen was relevant to the issue of proportionality.

He failed to take proper account of the appellant’s “queue jumping”.

I will assume for present purposes that it is open to the Secretary of State to advance all these grounds, even though they were not part of the grounds on which the case was transferred for reconsideration by the AIT at the first stage.

As I have said, I regard the Article 3 claim as unarguable, in the light of the decision in N and the cases referred to in it. The threshold of suffering or degradation is set very high. In the words of Lord Hope (who gave the leading speech):

Mr Gill attempted to argue otherwise. He said that the case was distinguishable from N, because it was within the spirit of rule 317; because it did not depend on a comparison of facilities in the Yemen, but on his own special circumstances; and because the appellant’s circumstances were truly exceptional - “limited by a range of factors in a way which the category of single foreign AIDS victims who have no family life in the UK is not.” Those arguments seem to me, with respect, to miss the point. The significance of N is not so much in its particular facts, but in its confirmation of the high threshold of suffering required to engage article 3. Arguments based on comparisons with rule 317, and the nature of the appellant’s family life, have no bearing on the issue; their proper place, if anywhere, is in the context of Article 8.

The precise nature of the error of law which the AIT panel identified under this head is not wholly clear from their brief decision. In R (Ekinci) v Secretary of State [2003] EWCA Civ 765, the appellant, a Turkish citizen, had been refused asylum in this country, but before his removal he had married a British wife and claimed that his removal would breach Article 8 of the Convention. The Secretary of State certified that this allegation was “manifestly unfounded”, thereby disentitling him from an appeal under the statute. The interference with family life was clearly justified by the need to maintain effective immigration control, and there was no reason to allow him to avoid the ordinary requirement under the rules that someone seeking entry as a foreign spouse should obtain prior entry clearance for that purpose. That decision was challenged by an application for judicial review, which failed in the Administrative Court and Court of Appeal.

In the Court of Appeal the appellant argued that the interference would in practice be much more serious, because he would be unable to meet the requirement of the rules to be able to maintain himself without recourse to public funds, and his application would therefore fail. This contention was understandably described by Simon Brown LJ as “bizarre”, since it would involve the surprising result that, the worse the appellant’s prospects of qualifying under ordinary immigration control, the better his chances of qualifying under article 8 (paras 16-17). However, I do not read that passage as any more than a comment on the particular case. The ratio of the decision, as I understand it, was, as the Secretary of State submitted, that on the facts of that case the outcome of a future application under the rules was irrelevant; the only matter to be considered at that stage was the “relatively short” period of interference with family life which would elapse before his application for entry clearance could be properly considered; any “longer term Article 8 claim” would fall for consideration at that stage (paras 2, 19).

In the present case, Mr Patel for the Secretary of State seeks to use Ekinci to attack Mr Ince’s reasoning in paragraph 31. He had there referred to potential difficulties for the appellant, if returned to the Yemen, in being able to establish a case under rule 317 that he was “living alone in the most exceptional compassionate circumstances”. This led to the conclusion that “entry clearance might not be a formality”, and that accordingly “it is not necessarily the case that the appellant would only have to return for a limited period of say 3 months or slightly longer” (para 33). Mr Patel submits that this was an error of law. As in Ekinci, the prospects of an eventual application under the rules should have been treated as irrelevant.

I do not accept that argument. The passage must be looked at in context. I read it as part of the Adjudicator’s response to the submission on behalf of the Secretary of State that his return to the Yemen “would possibly only be for a few months”, and that it was not unreasonable to expect his son or one of the other siblings to go with him for that period (para 25). The Adjudicator was not prepared to make that assumption; he did not think it reasonable to expect the children to run the risk of losing their jobs to go with him to the Yemen for what might be “an indeterminate period of time” whilst the application is being considered (para 40).

Like most cases decided by this court in the field of asylum law, Ekinci was a decision on its own facts; it did not purport to lay down any general proposition of law. In any event, the issue in this case is different. The Adjudicator was not concerned with the ultimate outcome of an application under rule 317, but with the timescale likely to be involved and its consequences for the care of the appellant in the meantime. In considering the reasonableness of expecting one or more of his children to leave their commitments in this country to look after him on his return to the Yemen, it was material to consider whether such absence would be for a defined and limited period, or indeterminate. I can see no legal objection to that approach.

It is convenient to deal with the next three points ((iv)-(vi)) together. They all in different ways attack the Adjudicator’s findings that public or private care would not be in practice available to the appellant, but in different ways in my view they are all attempts to challenge the weight given to particular aspects of the evidence, and raise no issue of law.

Arguments about burden of proof should not be taken too far. The two part structure of Article 8 implies that, given a serious interference with family life under 8(1), it is for the Secretary of State to show that it is justified in the public interest under 8(2). However, since that requirement is normally satisfied by the needs of immigration control, it is for the appellant to show the exceptional circumstances which justify special treatment. To that extent there is a burden on him. However, the evidence in such cases will come from a number of different sources, and will often be incomplete. The parties and the tribunal share the task of assembling the best available information, and the tribunal will have to make an overall judgment on that information.

That is what the Adjudicator has done here. As he makes clear, the appellant’s need is not for particular treatment, or hospital care, but for “permanent and constant home help”. The same point was made later by Mr Fountain (para 35.15). While noting the lack of specific evidence as to provision of care for the elderly in the Yemen, he accepted the argument that “in normal circumstances such care is provided by an extended family”. Both tribunals in effect were saying that the availability of medical care (public or private) was no substitute for the ordinary expectation that an elderly and ailing parent would be looked after by his family, and that the ability to do that was an important part of family life for both the carers and the cared-for. The specific criticisms made under this head do not undermine the validity of that conclusion.

Specific criticism is directed at the concluding comment of Mr Ince –

I agree that this sentence is not very happily expressed, but I do not think that it was intended to suggest any connection between the illness and the queue-jumping; rather to emphasise that the decision should not be seen as a reward for deception. Nor do I read the sentence as essential to the decision. The exceptional circumstances which the Adjudicator has identified are not in doubt. They are found in the current condition of the appellant requiring full time care, his special relationship with his family all settled in the UK, and the unavailability of any equivalent care if he is forced to return to the queue in the Yemen.

Since neither Article 8 nor the case-law lays down any specific limits to what may reasonably be regard as “exceptional” in this context, a legal challenge would have to be one of perversity. That is not in terms asserted, and rightly so in my view. Nor is this conclusion inconsistent with the reasoning of Huang. Indeed there are some parallels with the case of Mrs Huang herself. Although she could not bring herself within rule 317, this court evidently thought that her “substantial family life” in the UK, and her other special circumstances, made her case a potential candidate for exceptional treatment under Article 8 (see Huang paras 6-9, 64).

For these reasons I do not consider that the Grounds identified by the Secretary of State provide any reason for holding that Mr Ince’s conclusion was erroneous in law. Accordingly the AIT should have upheld it. This view makes it unnecessary to consider the other Grounds advanced by Mr Gill for challenging Mr Fountain’s decision. I accordingly would allow the appeal.

Factual judgments of this kind are often not easy, but they are not made easier or better by excessive legal or linguistic analysis. It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case (as is indeed illustrated by Mr Fountain’s decision after the second hearing). The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law, so as to justify an appeal under the old system, or an order for reconsideration under the new. Nor does it create any precedent, so as to limit the Secretary of State’s right to argue for a more restrictive approach on a similar case in the future. However, on the facts of the particular case, the decision of the specialist tribunal should be respected.

There is a more general point. One of the main purposes of the 2005 reforms was to streamline the appeal process, and reduce the scope for onward appeals. If this legislative policy is to be successful, it must work both ways, and those advising the Secretary of State may be expected to give a lead. That requires restraint by them, as well as by judges considering applications for the grant of leave. If this means living with some decisions which go against the grain of current government policy, that is a price which may have to be accepted in the interests of the wider objective.

I agree, for the reasons given by Lord Justice Carnwath, that this appeal should be allowed.

I would add this on the procedural aspect of the case. Had the tribunal been right in its critique of the first determination in relation to Rule 317, it should have included in its order a direction that the immigration judge who was to continue the reconsideration should do so on the basis that the facts found by Mr Ince were to stand save insofar as the issue to be reconsidered required their significance to be re-evaluated.

The reason why it is important to be rigorous about this is that reopening a concluded decision by definition deprives a party of a favourable judgment and renders uncertain something which was certain. If a discrete element of the first determination is faulty, it is that alone which needs to be reconsidered. It seems to me wrong in principle for an entire edifice of reasoning to be dismantled if the defect in it can be remedied by limited intervention, and correspondingly right in principle for the AIT to be cautious and explicit about what it remits for redetermination.

I also agree that the appeal should be allowed for the reasons given by Carnwath LJ

On 4 April 2005 s.103A of the 2002 Act came into force and the Immigration Appeal Tribunal (I.A.T.) was abolished to be replaced by the single tier Tribunal, the Asylum and Immigration Tribunal (A.I.T.) The transitional provisions in the relevant Commencement Order [SI.2005/565] provide that any pending appeal to the I.A.T. should continue as an appeal to the A.I.T. and Article 5(2) of the Order reads:-

Reconsideration is dealt with in s.103A of the 2002 Act. So far as material, this provides:-

The appropriate court in relation to England and Wales is the High Court (s.103A(9)). However, transitional provisions in Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (the 2004 Act) (which inserted s.103A into the 2002 Act) provide by paragraph 30, that while the Lord Chancellor so directs, an application for reconsideration is to be dealt with by a member of the A.I.T. and, if it is refused, the applicant may renew the application to the High Court. The Lord Chancellor has so directed and that regime is in place.

The procedure of the A.I.T. is governed by the Asylum and Immigration Tribunal (Procedure) Rules 2005 (2005 No.230). Reconsideration is dealt with in Section 2 of Part 3. The relevant rule is 31 which, after requiring that a reconsideration must be carried out as soon as reasonably practicable, provides by paragraph (2) :-

The Tribunal had to decide the most expeditious and cost effective system to deal with reconsiderations. Some errors of law would not require reconsideration of the original findings of fact or the hearing of further evidence. An example might be where the original Tribunal had failed to follow a Country Guidance case for no good reason and so the facts would have to be reassessed in the light of such guidance. The contrary would be likely to be the case where, for example, the findings of fact were not supported by evidence or the reasons for such findings were so poor that it was apparent that the original Tribunal had failed to have regard to important factors. It would accordingly be a waste of money to require the parties to attend with their witnesses when the reconsideration was to be commenced. If the Tribunal then decided that there was no error of law or that it could reconsider the appeal without hearing any further evidence, it would be able to dispose of the appeal. Otherwise, if it decided that there were any errors of law, it would adjourn the reconsideration. It would often be impractical for the rehearing to be by the same constitution, particularly where the appellant was located outside London so that it would be sensible and more cost effective to hear the appeal locally. Furthermore, the number of reconsiderations is substantial and so those that require evidence and fresh findings of fact will often have to be decided by single immigration judges. Whether the final determination of a reconsidered appeal is by a single immigration judge or by a panel, an appeal lies on a point of law to the Court of Appeal.

The President of the A.I.T. (Hodge J) has issued Practice Directions which set out how the A.I.T. is to operate. These are issued pursuant to powers bestowed upon him by s.107 of and Paragraph 7 of Schedule 4 to the 2002 Act. Paragraph 14 of the Directions deals with procedure on reconsideration. I do not need to refer to the Directions which deal specifically with cases such as the present which arise under the transitional provisions since the reconsideration where the I.A.T. has granted permission is treated as if it was a reconsideration under s.103A of the 2002 Act. The relevant sub-paragraphs of 14 read:-

The A.I.T. is a single tier Tribunal. Reconsideration does not take place in two separate stages but in one place. Thus an adjournment, if it is needed, is an interlocutory stage in that process. There is a distinction drawn in the Procedure Rules between transitional cases (such as the present) and those that are dealt with by the new procedure imposed by the 2004 Act. Rule 27 (which is in Section 1 of Part 3 which covers reconsideration under s.103A of the 2002 Act) obliges the Immigration Judge who makes an order for reconsideration to state the grounds on which the Tribunal should reconsider its decision. There is no Rule which precludes the Tribunal at the reconsideration hearing from allowing other grounds to be argued.

If the Tribunal decides that there was no error of law, it must immediately uphold the original decision. It will give its reasons and there is a right of appeal to the Court of Appeal. If the Tribunal decides that there was any error of law, it may be able to deal with the case without the need for an adjournment. If it does, it will produce a reasoned decision which can be appealed to the Court of Appeal. The Practice Direction distinguishes between an adjournment and a transfer (see Paragraphs 12.3 and 14.2), an adjournment being to the same panel and a transfer to a different panel or to a single immigration judge. In reality, each is an adjournment of the proceedings involved in carrying out a reconsideration, but it is no doubt convenient to deal separately with the requirements for what is called a transfer and what is called an adjournment. It is here that Paragraph 14.4 becomes material. It is obvious that, if the case is to be heard by the same panel, there is no need to prepare written reasons for a fresh panel or judge. It was recognised that the reconsideration would usually be dealt with initially at Field House in London where the Senior Immigration Judges are based and by a panel and that in any event it was undesirable that further argument should be allowed which covered the same ground as that deployed at the first reconsideration hearing. It was further undesirable that an immigration judge should reconsider a decision of or made by a panel chaired by a senior immigration judge.

Mr Tam’s main submission was that since the reconsideration was, as he put it, a single exercise, judicial review of what was an interlocutory decision should not be entertained. The court undoubtedly has jurisdiction to consider claims such as this, but will not in general entertain challenges to interlocutory decisions on the ground that the challenge is premature: cf: R v Secretary of State for the Home Department Ex p Nader [1998] 1 A.R. 33 and R v Rochford JJ Ex p Buck (1978) 68 C.A.R. 114. The proceedings should be allowed to take their course and, if the Tribunal was wrong to find errors of law where none existed, the remedy lies in an appeal to the Court of Appeal. While that approach may sometimes be modified in relation to a decision to adjourn proceedings, it will normally apply to a decision such as is in issue in this case which amounts to a preliminary ruling. If, as I believe, the parties must see the reasons and are able in the circumstances which I have set out in this judgment to argue against them, there is all the more reason to refuse to entertain proceedings for judicial review. I am satisfied that the court should not permit claims such as these. They are premature and can only create delays which are manifestly contrary to the intention of Parliament as appears from Rule 31(1) of the Procedure Rules. There is no prejudice to the aggrieved party since, if the alleged error persists in the final determination, there is a right of appeal to the Court of Appeal. And it is always possible that he will succeed in the appeal.

Accordingly, I am satisfied that it would normally be an abuse of the process of the Court to seek to pursue claims such as this. I have learnt that it is dangerous to say ‘never’ in this jurisdiction, but I find it difficult to conceive of circumstances in which such a claim would be proper.