N v Secretary of State for the Home Department

LORD JUSTICE NEUBERGER: This is an appeal on one issue, and a renewed application for permission to appeal on other issues, against a decision by the Asylum and Immigration Tribunal consisting of Mr L V Waumsley, senior immigration judge, and Mr M Rothwell, immigration judge. The decision was prepared on 15 December 2005 following a hearing the preceding day and sent out on 12 January 2006. It was effectively the reconsideration of an application or an appeal by Mr N against a decision to send him back to Kenya. His appeal was essentially based on Article 8 of the European Convention on Human Rights. The decision of the Tribunal is full and detailed and runs to 104 paragraphs. Because the appeal and application for permission to appeal are essentially fact-based, it will be necessary to refer to, and even to a substantial extent quote from, the decision of the Tribunal.

The appellant is now 20 years old. He entered the United Kingdom on 26 April 2003 on a false passport. He was granted temporary leave to remain on an exceptional basis until 31 March 2004, the day before his eighteenth birthday. The day before that he was given notice that he would be sent back to Kenya. His application to remain was rejected by the Secretary of State and, without going into details of other hearings, what was effectively his appeal against that decision was rejected by the Tribunal. As I have mentioned, his case was based on Article 8. The evidence before the Tribunal established that the appellant had been born in Kenya of a Kenyan father and a Ugandan mother, and had moved with his mother to Uganda when he was about nine months old. He believed that his mother’s partner was his father, and it was only after the death of his mother’s partner that he learned otherwise. His mother then died, and, because of a break-in in the house where he lived, he believed his life was in danger. It was then that he came to the United Kingdom, as I have described, under a false passport.

The evidence shows that he was a keen athlete, and since June 2003 a member of a North London athletics club where he trains. He goes to the club twice a week and runs five miles every day. At the club he met Gordon Wells and his wife, Doreen – his first contact being with Doreen – and he has developed a very close relationship with them and their three sons, in particular Louis. He sees Doreen twice a week; he speaks to her and Gordon frequently on the telephone; and is, as I have said, very close to them.

At the time of the hearing before the Tribunal the Appellant was attending a GNVQ health and social care foundation course at Waltham Forest College. A report from the College, which was before the Tribunal, stated that he had undertaken various marketing tasks for the College; that he was “a pleasure to work with”; that he had “a great deal of motivation and determination”; and the he underwent “each task” (which included running despite an injury) with enthusiasm. He was described as trustworthy and reliable; they continued to use his services as a “student ambassador”.

The evidence also established that the appellant had lived in bed and breakfast accommodation in Edmonton since March 2004. In his evidence to the Tribunal he had said he was in good health, and that he had not received any treatment from stress while he was in the United Kingdom.

He also told the Tribunal that he sometimes spent time at weekends and holidays at Mr and Mrs Wells’ home. Mrs Wells and Mr Wells and their son Louis, to whom I have referred, all gave evidence. It was clear from their evidence that the relationship between the Wells family, in particular with Mrs Wells and Louis Wells, but also to an almost equal extent to Gordon Wells, was and is very close indeed; he is regarded as a son by Mr and Mrs Wells. She described him as “very emotionally dependent upon them” (that is, the Wells family). In her proof of evidence, she also made it clear that she would be really at her wits’ end if he was sent back. Mr Wells described the appellant as having “become a permanent member of the family”. Louis Wells explained how he spent a lot of time with the appellant and that they saw each other twice a week.

There was also medical evidence before the Tribunal in the form of a report from Dr Bell, a consultant psychiatrist. He had seen the appellant once only, for two hours. A copy of his report, which the Tribunal saw, is included in the papers before us. The Tribunal summarised his evidence in paragraphs 42 to 46 of their decision:

The Tribunal also had a report from a Mr Topi Lyambila, who gave evidence about the appellant’s likely life if he were returned to Kenya. He said he would be unlikely to be able to trace any members of his family because his surname would be of no assistance; that he would “probably end up homeless and destitute, battling fellow street urchins fending for himself in the slum areas without an option”; that there was high unemployment in Kenya. In that connection “The language factor is crucial and may work against anyone who cannot be able to properly communicate in both English and Swahili” – this being significant because the appellant has no Swahili. Mr Lyambila also explained that there was no significant support for athletes in Kenya, save for those who had what he called star status. As he put it, failure to reach this level spells doom for all the hopefuls.

That evidence was considered in paragraph 71 of the Tribunal’s decision:

The findings of the Tribunal start at paragraph 74, before which, having set out the evidence, they set out the submissions on behalf of each party. They identified the five- stage process which they had to go through pursuant to what was said by Lord Bingham of Cornhill in his speech in ex parte Razgar at paragraph 17:

They came to the conclusion in paragraphs 79 to 85 that the appellant had established that there would be interference with his private life if he was removed, but not interference with family life. The essence of their reasoning was that, although he had a very close relationship with Mr and Mrs Wells, and although he visited the Wells family frequently, he had not been brought up by them and he had only got to know them relatively recently, namely some two or three years before the hearing. Accordingly they concluded in paragraph 85:

At paragraphs 86, 87 and 88 the Tribunal had no difficulty in deciding that the second, third and fourth issues identified in Razgar were satisfied. They then turned to what they described in paragraph 89 as the final and most difficult issue to be considered, which they rightly described as being whether the interference with the appellant’s Article 8 rights which would inevitably be caused by his removal from the United Kingdom would be disproportionate. In that connection they quoted what Laws LJ said, giving the judgment of the court, in paragraphs 59 and 60 in Huang v the Secretary of State [2006] QBR 1.

In paragraphs 91 to 94 the Tribunal then set out the factors which they considered counted in the appellant’s favour. They said this:

They then turned in paragraphs 95 to 99 to the factors which counted against the appellant;

They then reached their conclusion in paragraphs 100 to 103:

The appellant applied for permission to appeal to this court. The application came before me and I dealt with it in the normal way in writing. I gave permission to appeal on one point and refused permission to appeal on other points, partly because I was not entirely clear as to the precise points that were being raised, because, not altogether conveniently, the notice of appeal did not contain itemised points but referred to the skeleton argument. I also indicated that if the appellant wished to renew his application for permission to appeal on any of these other points, then the application should be renewed at this hearing, as it has been.

I turn first to deal with the question of the appeal and the issue which I permitted to be argued. I shall then deal with the application for permission to appeal. The point on which I gave permission to appeal arises out of the second sentence in paragraph 95 of the Tribunal’s decision, where they said this:

There is no doubt that in paragraph 76 of their decision, for reasons I do not need to go into, the Tribunal did indeed record that they thought it right to treat Dr Bell’s conclusions as undisputed. Indeed, as Miss Kathryn Cronin, who appears on behalf of the appellant rightly observes, the Tribunal explained in the previous paragraph that they accepted that Dr Bell was an expert and was entitled to reach the sort of conclusions he reached, although they were a little concerned about the fact that he had only seen the appellant once for two hours, and in paragraph 75 they identified one or two other points which might have been made against the reliability of his assessment.

While I can see an argument to the effect that the Tribunal’s view as expressed in that sentence at paragraph 95, suggesting that the appellant did not suffer from any mental disability, could be read as being inconsistent with Dr Bell’s evidence, it seems to me that provided it can properly and fairly be read as consistent with Dr Bell’s evidence, then it should be so read. First of all, the Tribunal had just referred in paragraph 92 to Dr Bell’s evidence. Secondly, they had considered Dr Bell’s evidence in some detail in paragraphs 39 to 46, quoting large parts of it. So it is inherently unlikely that they would in the middle of paragraph 95 have come to a conclusion which was inconsistent with that evidence, particularly as they made it clear that they accepted it. It is of course possible for a Tribunal to make a mistake of the sort alleged by the appellant, but to my mind there is also the general principle that one tries, so far as one properly can, to construe a document, be it a judgment or any other document, so as to be internally consistent. Particularly because of the inherent probabilities in this case, one should see whether it is possible fairly to interpret the sentence as being consistent with Dr Bell’s evidence. Having listened to the submissions of Miss Samantha Broadfoot, on behalf of the Secretary of State and considered what Miss Cronin has to say in reply, I am satisfied that there is nothing objectionable in principle or in law with the third sentence of paragraph 95 of the decision.

First of all, as my Lady, Lady Justice Arden said in argument, it is clear that that sentence is concerned with the present state of the appellant’s health, using, as it does, the present tense, in contrast with the use of the future, were the appellant to go back to Kenya, in paragraph 92.

Secondly, although the evidence of Dr Bell showed that the appellant was very vulnerable and was emotionally dependent and could be said to suffer from what he called a psychological disorder in the sense that he was much more of a child and much more dependent than one would expect, it is perfectly possible to say that that is reconcilable with the observation that he had no “disability”, which Miss Broadfoot defined as:

Her point is reinforced as a matter of principle by reference to the definition of disability in the Shorter Oxford English Dictionary, 1993 edition, definition three, and in connection with the facts of this case by reference to the report from the college attended by the appellant, from which I have briefly quoted. Disability in definition three in the New Shorter Oxford English Dictionary is defined as:

In those circumstances I would dismiss the appeal on the ground on which permission was given. It is therefore necessary to turn to the grounds upon which permission to appeal is renewed. So far as that aspect is concerned, Miss Cronin contends that the Tribunal was wrong to decide this was not an exceptional case within the guidance given in Razgar and, perhaps directly more relevantly, by Huang. She puts her case two ways. The first is that no reasonable tribunal could have come to the conclusion that this Tribunal came. Secondly and alternatively, on a fair reading of the Tribunal’s analysis of the evidence and reasoning, they failed to appreciate the facts properly to an extent sufficient to amount to a material error, within the meaning of that term explained in paragraph 9 of R (Iran) v Secretary of State[2005] EWCA Civ 92.

The contention that no reasonable tribunal could have reached the conclusion which a Tribunal has reached has been considered in a number of cases, and it is an argument which at least in principle faces a very high hurdle. That is clear from, for instance, what was said by this court in paragraphs 29 and 30 in Secretary of State v Akaeke[2005] EWCA Civ 947, and in paragraphs 11 and 12 of R (Iran) to which I have referred.

As for the failure to appreciate the facts properly, the appellant again faces a high hurdle, not merely because the Tribunal was very much the primary fact finder but also because in this particular case the Tribunal has examined the case in great detail, with great care, and in a way which demonstrated considerable sympathy for the appellant, as is clear, for instance, in paragraphs 100, 102 and 103. None of that, of course, means that the appeal is bound to fail, but it does serve to underline the high hurdle which the appellant’s case faces, whichever way it is put.

In considering this sort of attack on the decision of an Asylum and Immigration Tribunal the fact that it is the decision of that particular Tribunal is a factor which cuts both ways. The enormous pressures on, and difficulties faced by, the Tribunal in terms of evidence gathering, evidence assessment, and emotional and time pressures, are well known. They must, in all fairness to the Tribunal, be borne in mind when considering any of its decisions.

On the other hand, a factor pointing very much the other way is the great seriousness for an appellant of the decision of the Tribunal. It is no exaggeration to say that in some cases, from the appellant’s point of view, it is almost a matter of life and death. Accordingly, whatever sympathy one has for the Tribunal, material inaccuracies or sloppiness in fact analysis or in reasoning cannot be overlooked, but one must not be overcritical. No reasoned decision, from however competent, intelligent and hardworking a Tribunal, is immune from some justified criticism.

With those observations I turn to consider the points that have been argued. The two main points which Miss Cronin has raised merit our granting permission to appeal, and I would also grant permission to appeal on the broader attack she makes on the decision. But that does not, of course, mean that they are sufficiently powerful to justify the appeal being allowed. The two grounds which to my mind are the strongest are these. First, that the contention that the Tribunal did not appreciate the full extent and importance of the relationship between the Wells family and the appellant, the depth and importance it has. Secondly, that the Tribunal did not consider sufficiently the consequences of the appellant being returned to Kenya.

Before turning to those criticisms, however, there is one point I should deal with first, namely the argument that the Tribunal was wrong to reject the contention that, on the unusual facts of this case, the appellant had established interference with family life under Article 8. I agree with Miss Broadfoot, and I do not think that Miss Cronin disagrees, that the point, although interesting, is not one that needs to be decided. That is for two reasons.

The first is that the Tribunal accepted that on the facts, removal of the appellant would give rise to an interference with his private life and that therefore Article 8 was engaged. In these circumstances, it seems to me that the issue as to whether family life is also engaged becomes, as Miss Broadfoot put it, a matter of labelling. Once Article 8 is engaged, one then has to look at the facts in order to see whether the interference is disproportionate; accordingly, whether one labels the facts as giving rise to private life or family life does not (at least as at present advised) seem to me to matter. Secondly, even if that is wrong, the Tribunal very sensibly went on to make it clear that, in case it was wrong on the family life issue, it would consider proportionality not merely on the assumption that it was right on the family life issue and that this was merely a private life case, but also on the basis that this was a family life case. In those circumstances the issue does not seem to arise.

I do not think it is helpful for me to comment, in those circumstances, on whether the Tribunal was entitled to come to the conclusion that it did in paragraph 85. Having said that, I would take some persuasion that, in the light of the facts of this case, the Tribunal was not entitled to come to the conclusion on the issue that it did.

I revert, then, to the two main points of Miss Cronin’s argument. The first is, as I have said, that the Tribunal did not appreciate the full extent, and the importance to the appellant, of his relationship with the Wells family. She points out that in paragraph 91 of their decision they referred to the appellant being “on close and affectionate terms with the members of the Wells family”; which, she says, is considerably to understate the real deep and important nature of the relationship. Secondly, she points out that there were passages in Dr Bell’s evidence which underlined the fundamental importance of the relationship to the appellant, and that while the Tribunal considered Dr Bell’s report in some detail, in the passages I have already quoted from their decision, they did not include anything that related to the relationship and the importance of the relationship the appellant has with the Wells family. Furthermore, it is said that when one examines Mrs Wells’ evidence, and indeed Mr Wells’ evidence, the Tribunal understated this effect when quoting from it and summarising it.

While I can see that that might appear to have force in the eyes of the appellant and the Wells family, I have to say that, having been taken through the decision of the Tribunal by Miss Cronin, and having considered the matter on a common sense basis, it seems to me that it is a contention that must be rejected. The Tribunal’s decision is shot through with references to the importance of the relationship. In paragraph 16 it is described as very close, and it is said that the appellant:

In paragraph 19 further reference is made to the frequency with which the appellant sees the Wells family and talks to them on the telephone. In paragraph 24, to which I have already referred, there is reference to spending time on his holidays with them. In paragraph 26 the circumstances in which Mrs Wells first got to know the appellant are described in sympathetic and accurate terms. In the following paragraphs their evidence is summarised, to my mind perfectly fairly. The Tribunal expressly mentions at the end of paragraph 27 that Mr and Mrs Wells “now look upon the appellant as their fourth son”, and that:

The evidence of Mr Wells and of Louis Wells is dealt with rather more quickly. But in relation to Louis Wells there is reference in paragraph 37 to “a very close brotherly relationship”, and there is reference to the fact that Mr Wells said:

Also in this connection Miss Broadfoot rightly referred to paragraphs 67 and 69 of the decision, and paragraphs 80 to 84, which I do not propose to read again, but they show that the Tribunal was plainly aware of the closeness of the relationship.

The fact that severing the relationship would cause the appellant serious problems was quite clearly appreciated by the Tribunal. The Tribunal quoted Dr Bell’s report in paragraph 45 where he described the relationship as “vital supports” and referred to “highly significant attachments” and that severing them would result in “violent psychological assault” which would itself be sufficient to cause a serious breakdown. Dr Bell’s evidence was described in paragraph 92 as “plainly material evidence which we had therefore taken into account in arriving at our assessment”.

To my mind these factors readily explain why the Tribunal felt considerable sympathy for the appellant, as indeed anyone considering the prospect of his being removed to Kenya would feel. There is thus nothing in the point that there was insufficient attention paid to this factor on the face of the reasoning.

As to the point that this aspect of the evidence meant that no tribunal could reasonably have concluded that the appellant should be sent back, it seems to me that the Tribunal quite rightly directed itself in accordance with Huang. As my Lord, Lord Justice Pill pointed out in argument that cannot be conclusive because, as Miss Broadfoot accepted, ultimately it is this court that is the decider as a matter of law whether a case had be or is or must be exceptional. However, the Tribunal’s observation in the third and fourth sentences of paragraph 100 that this case did not seem to them, based on their experiences, to be exceptional is to my mind a significant factor.

It is also relevant, as was pointed out by the Tribunal, that the factors mentioned in paragraphs 97 and 98 came into play, namely that the appellant had never been here on any basis other than a temporary exceptional basis, and that the relationship that he formed with the Wells family, albeit very deep and very significant, was over a relatively short period. Subject to there having been other mistakes established, it does not seem to me that it can be said that there was an error in this connection. That is so even if one links it to the rather distressing psychiatric analysis and what is likely to happen to the appellant, according to Dr Bell. That was quite rightly described by the Tribunal as a weighty factor in the appellant’s favour (see paragraph 92). But it seems to me that it was a factor which was not of necessity conclusive, and it is only if it was of necessity conclusive that one could accede to the argument on the appellant’s behalf that no reasonable Tribunal could have reached the conclusion that they did.

The other aspect of the reasoning which could be said to be defective was insufficient attention being given to the appellant’s likely life in Kenya. The first problem with this is, as my Lady, Lady Justice Arden pointed out, that this cannot be a factor which assists on the “truly exceptional” question. A large number of people going back to Kenya would face the likelihood or possibility of the problems which the appellant would face. In any event, although the evidence of Mr Lyambila was not given the same detailed consideration as that of Dr Bell, there is no doubt that it was considered in paragraph 71, and touched on again in paragraph 77, of the Tribunal’s decision. I think it is a fair point that one might like to have seen rather more detailed consideration of his evidence, and perhaps rather more discussion about the consequences for the appellant’s athletics, than one sees in paragraph 94. But as both Miss Cronin and Miss Broadfoot rightly emphasised, one has to look for a material error, and it seems to me that however much sympathy one feels for the appellant in this case (and, as I have said, anyone would feel a great deal of sympathy) to say that this failure to deal as fully as one would like with the evidence of Mr Lyambila constituting a material error on the issue of proportionality is an unfair and unrealistic criticism of the Tribunal. It was considered and dealt with, and the fact that it could have been dealt with more fully does not mean that it has been dealt with so badly as to be inadequate. I would not allow the appeal on that point.

Various other more minor matters were raised. The first that it is convenient to take arises from the description in paragraph 101 of the removal to Kenya being, “plainly … difficult” for the appellant. This is said to be an understatement. But the description elsewhere in the same paragraph was “plainly … very distressing”, so it seems to me pusillanimous that there was plainly no error in this connection. In the same paragraph there are the somewhat confusing words “that difficulty will be ameliorated to the same extent” by the support from afar. That is plainly a misprint. It does not make sense. As my Lord, Lord Justice Pill pointed out, “ameliorated to the same extent” is a nonsense. If it is balanced out it is not really ameliorated; it is dealt with. The only mystery to my mind, and it does not matter, is whether the correct reading is “the difficulty will not be ameliorated to the same extent”, or whether it is “the difficulty will be ameliorated to some extent”. It does not matter which is the correct reading, because the words amount to the same thing. In each case the Tribunal is accepting that the communications between the Wells family and the appellant, if the appellant is in Kenya, will not balance out, or fully compensate for, the difficulties which he will have if he is sent back to Kenya.

It is also said that, in paragraphs 102 and 103, the Tribunal was wrongly saying that, as a matter of law, it could not have come to any other conclusion than that which it did. If it was saying that, then it was probably an observation it was entitled to make because, having decided that his case was not truly exceptional as a matter of fact in paragraph 100, it was then bound to reach the conclusion that it did. That may be a rather legalistic reading of paragraphs 102 and 103. The proper analysis might be simply that, in a slightly clumsily expressed way, the Tribunal was saying that it was reluctant or sorry to come to the conclusion it did. Criticism was also made of the rather hard to understand last sentence of paragraph 101, but it seems to me that, as my Lord, Lord Justice Pill said in argument, all that the Tribunal was there saying was that a) it had considerable sympathy for the appellant; and b) if it did not feel that on its view of the facts the law required it to send him back to Kenya it would not have done so.

It is suggested by Miss Cronin, on grounds that I did not fully understand, that the Tribunal reached its decision on the basis of facts of other cases or what one would normally expect, rather than by reference to consideration of the facts of this case. I am bound to say that, whatever other criticism can be made of the Tribunal, it seems to me clear that it was fixed very firmly on the facts of this case and it reached its conclusion on the basis of the facts in this case.

We were also referred, it is right to say, by Miss Cronin to paragraph 20 of Lord Bingham’s speech in Razgar and to passages in the judgment of Collins J in R on the application of Klodjian Lekstaka v Immigration Appeal Tribunal[2005] EWHC 745 (Admin) where, she says, that the facts of the case which resulted in a favourable decision for the appellant were pretty similar to the facts of this case. It is always dangerous to compare one case with another, but Miss Broadfoot was quite right in saying that the issues in both those cases were rather different from the issue in the present case. The issue in Razgar concerned a certification. The issue in Lekstaka was whether permission to appeal should be given. I am bound to say on the facts that neither of those two cases assist in the present case.

All in all, therefore, I end up where the Tribunal ended up, namely concluding that its decision must stand, albeit that I feel very considerable sympathy for the appellant and indeed for the Wells family. On the ground on which I gave permission to appeal, I would therefore dismiss the appeal. On the grounds on which I refused permission to appeal I would grant permission, but dismiss the appeal.

LADY JUSTICE ARDEN: I agree that permission to appeal should be given for the outstanding points for which permission is sought, and that the appeal on all the issues heard today should be dismissed. There are a number of matters on which I would like to state shortly my reasons.

The first matter is on the evidence of Dr Bell. I agree with my Lord, Lord Justice Neuberger that paragraph 95 of the decision of the Tribunal is not internally consistent with the Tribunal’s acceptance of Dr Bell’s evidence. The Tribunal dealt with Dr Bell’s evidence as to the effect of removal on Mr N at paragraph 92 when it said:

It is, however, pertinent to note that at paragraph 93 the Tribunal found on the basis of the in country intelligence that medical treatment in Kenya is generally very good,and that there would be facilities available for the appellant’s treatment if that were to be proved necessary following his return. That shows that the Tribunal considered the position if, indeed, Dr Bell’s prognosis turned out unfortunately to be the case and there were to be some manifestation of an underlying disorder, which Mr Bell considers that he currently has.

I would add this: that if Mr N had in fact developed an illness prior to removal, and the Tribunal had found that he could be treated for that disorder in the reception country, there could be no ground for refusing the order for setting aside the Secretary of State’s direction or refusal of leave to remain on the basis of medical facilities. That is well established now by the case law, and the court is not entitled, therefore, to allow the appeal on that ground even if the medical facilities are not perhaps as good as he would have found in this country had he the right to remain.

The next major matter on which I want to comment is Miss Cronin’s submission about the relationship of dependence. Miss Cronin submitted that the Tribunal had failed to give sufficient weight to the evidence. There was strong evidence from all the witnesses, particularly the members of the Wells family, that Mr N was very emotionally dependent on the Wells family. The Wells family described the relationship as it had developed in detail in their various witness statements. I note, for instance, that the Wells family even considered adopting Mr N and took advice on that point.

The evidence that Mr N is very emotionally dependent on the Wells family is also strongly supported by the report of Dr Bell. Dr Bell says at page 162-3 of the bundle that the consequence to Mr N of removal would be twofold. Firstly, and pre-eminently, removal would suddenly detach him from vital supports. I refer here to his being part of a family, the Wells family, that has served to support him. The breaking of these highly significant attachments would be experienced as a violent psychological disorder which would in itself be sufficient to cause a serious breakdown. Secondly, the absence of these supportive structures would deprive him of this ongoing source of deep reassurance and support. Again this would be sufficient to cause a serious breakdown. It is also clear that he would be deprived of important relationships he has formed with his trainers and college teachers. The significance of these relationships should not be underestimated. Dr Bell goes on to state that removal would be to a context of which there are no structures to support Mr N and that, as a vulnerable adolescent, this would constitute a further major psychological support.

Then Dr Bell refers to Mr N’s defence of disassociation, and that removal would be highly likely to force him into unmanageable thoughts and feelings associated with his unhappy past in Kenya and Uganda. Dr Bell states that the result would be that his fragile disassociative capacity would be overwhelmed. His mind would thus be flooded with unmanageable thoughts and feelings and this would be a further source of disturbance. He adds that he does not think that Mr N is at serious risk of self-harm or suicide in his current state. However, if he were removed the breakdown would be consequent upon this and would very substantially raise the risk of self-harm or completed suicide. There is, therefore, very strong evidence of a relationship of dependency between Mr N and the Wells family at this point in time.

Miss Cronin has taken us to the evidence in this case and has made submissions of some complexity, but, as I see it, the effect of her submission is this: as a matter of law the admitted evidence must amount to an exceptional circumstance, and lead to the conclusion that the lawful operation of immigration control would be disproportionate in this case and the Tribunal’s conclusion to the contrary was therefore wrong in law.

As to proportionality, Miss Cronin took us to the case of Miao v Secretary of State for the Home Department[2006] EWCA Civ 75, in particular paragraphs 12 and 13. In those paragraphs Sedley LJ says that the assessment of proportionality is not a simple weighing of two cases against each other. I agree. To apply any test of proportionality the court has first to decide the value to be attached to the rights engaged. In this case, on the one side is the right of the state to enforce immigration control, and on the other side is the right of the individual to his family or private life. It is, however, now well established by authority in this jurisdiction, and also in the European Court of Human Rights, that considerable weight must be attached to the lawful operation of immigration control by a member state and that only truly exceptional circumstances will be sufficient to displace it pursuant to Article 8 paragraph 2.

Mr N is now an adult. In those circumstances I would like to recapitulate the relevant principles on Article 8 which I set out in Krasniki and the Secretary of State for the Home Department[2006] EWCA Civ 391. I said:

In immigration matters the state has a right to control the entry of non-nationals into its territory. Thus:

There is no obligation on the state to accept the choice made by a person (“A”), who has not been admitted to live in the United Kingdom, of the place where he or she would like to have a private or family life with another person (“B”) who has similarly not been admitted to live in the United Kingdom. (see Abdulaziz, Cabales and Balkandali v United Kingdom [1985] 7 EHHR 471, cited in Huang v Home Secretary[2006] QB 1, para 48.

It is only in a truly exceptional case that an unlawful immigrant can successfully oppose his removal by reliance on Article 8 (see R(Razgar) v Home Secretary[2004] 2 AC 368, para 20 per Lord Bingham, and Huang, para 60.)

If A claims a right to remain in the United Kingdom in reliance on Article 8 and his right to respect for his or her family life with B, it is a relevant consideration that they formed their relationship at a time when their status was precarious: see Abdulaziz, Cabales and Balkandali v United Kingdom, para 68. If A cannot be removed because of Article 8, he or she would be in a better position than a person who applies to be admitted to live in the United Kingdom from abroad through the normal channels…”

This of course is a case where Mr N wishes to remain in the United Kingdom having first come here and applied unsuccessfully for asylum. He is, as I said, an adult. Any removal of any person who has been resident in the United Kingdom is likely to cause dislocation and distress, but that is not sufficient of itself to amount to exceptional circumstances. Likewise, where there is a relationship of dependency between an adult and a family, or with other persons, it is not sufficient to say that the dependency will be lost. The dependency must have a degree of significance such as is sufficient to outweigh the lawful operation of immigration control.

I now turn to the circumstances of this case as found by the Tribunal. First, at paragraph 101 the Tribunal in effect found that the relationship would not necessarily be totally lost if removal took place. The Tribunal held that the effects of the removal would be very distressing. It held that the situation which would face the appellant on removal to Kenya, the country of his birth but a country to which he had no recollection, would plainly be difficult for him, to put it at its lowest, although that difficulty would be ameliorated to “the same extent” (which I think should be to “some extent”) by the support from afar which he would receive from the Wells family.

Then at paragraph 99 the Tribunal made it clear that whilst it would certainly be difficult for the Wells family to continue supporting the appellant from afar following his return to Kenya, their commitment to do so to the best of their ability, financially and otherwise, is not in doubt. The Tribunal added that that fact was one which had emerged clearly from the evidence which they gave before the Tribunal. Miss Cronin in her submissions to us has laid considerable emphasis, understandably, on the fact that at the present time there is considerable proximity between the Wells family and Mr N, although he does not live with them. He has the ability to go to their home, and a room is kept for him when he needs to do so, and he does do so from time to time. But it was open, in my judgment, for the Tribunal to reach the view that, in the light of the commitment of the Wells family, some form of relationship could still survive. That contact, for instance, might still be maintained by telephone or e-mail, or by letters and that even though for financial and other reasons visits were unlikely, contact could still be maintained and support given in that way.

Furthermore, I would point out that the Tribunal had, as I have already indicated, found that Mr N would be able to get medical treatment in Kenya if he needed that (at paragraph 93), and in my judgment that was also a matter which the Tribunal was entitled to take into account in the balancing exercise. Moreover, in paragraph 98 the Tribunal pointed out that the relationship had been formed at a time when the right to remain was precarious. That matter is a relevant consideration which they are entitled to take into account, because otherwise those persons who are not resident in the United Kingdom without the right to remain here are placed at a disadvantage. In those circumstances I do not consider that it can be said that the Tribunal came to a conclusion which was not open to them in law, or that their conclusion was perverse. This is so even though the Tribunal’s conclusion on the ability of Mr N to pursue his running career in Kenya was inconsistent with the evidence. This issue did not go to the root of the matter. Likewise, it is not essential for this court to determine whether the Tribunal was wrong in law in its conclusion that the right to family life was not engaged.

For these reasons and those given by Neuberger LJ I would dismiss the appeal.

LORD JUSTICE PILL: This is an Article 8 case, subject to exceptions in Article 8(2) of the European Convention on Human Rights, “Everyone has the right to respect for his private and family life, his home and his correspondence”.

The appellant’s application for asylum having been refused following his entry on the 26 April 2003, exceptional leave to remain was granted until 31 March 2004, his 18^th birthday. He has made an application under Article 8 that has been considered by a Tribunal constituted by a senior immigration judge and an immigration judge. The appellant was represented before the Tribunal by counsel, Miss Cronin, who has addressed the court today. The appellant was 19 years old at the time of the decision. He had just completed a college course and was awaiting the outcome of a university application. He was and is a keen amateur athlete and has spent considerable time on that activity.

In those circumstances, on an appeal against the finding of the Tribunal, the court should apply the principles in Huang v Home Secretary[2006] QB 1:

The Tribunal in its determination and reasons stated that this was not an exceptional case:

This court must have regard to the experience and judgment of the Tribunal, as a specialist Tribunal in this field. The Tribunal’s own view of exceptionality does not of course conclude the matter. It is this court, subject to the House of Lords and the European Court of Human Rights, which has the function of setting the appropriate standard as to what is truly exceptional so as to constitute a breach of Article 8. In my judgment – and both Neuberger LJ and Arden LJ have dealt with the point – the decision of the Tribunal cannot be said to be irrational.

Miss Cronin, who has made her submissions helpfully and persuasively, primarily relied on the submission that there are defects in the decision; errors in appreciation of evidence and other defects which cumulatively amount to an error of law, and that this court ought to intervene. That an error of law is capable of arising from a misunderstanding of facts is clear from the decision of this court in R (Iran). Brooke LJ included within those matters which may amount to a point of law, the making of perverse or irrational findings on a matter or matters that were material to the outcome, and making a mistake as to a material fact which could be established by objective and uncontentious evidence. There is in this case every indication that the Tribunal carefully considered the evidence before them, and they set out their reasons in some detail. Clearly they had sympathy for the position in which the appellant found himself.

A discrete point is taken on paragraph 95 of their decision, when read with paragraph 76. It relates to the evidence of Dr Bell. I say at this stage that it appears to me that the central point of Miss Cronin’s submission is that the Tribunal has failed either to understand or to give sufficient weight to that medical opinion. I will not set it out in detail; Neuberger LJ and Arden LJ have already considered it in some detail. At paragraph 95 the Tribunal state:

I cannot accept that submission as demonstrating an error of law. What the Tribunal were doing at paragraph 95 was to consider the current way of life of the appellant, and they did so accurately. He is “a committed and hard working student”; he has had, “achievements on the running track”. They are commenting on his current state of health and way of life. They are indeed reflecting what the appellant himself said in his evidence:

Dr Bell’s evidence must of course be considered in conjunction with that of Mr and Mrs Wells and their family. The appellant has struck up a relationship with them. He is a vulnerable young man who will lose the advantage of that close association if he has to leave the United Kingdom. The Tribunal had in mind the close relationship. They stated at paragraph 91, when setting out factors in the appellant’s favour:

Clearly the Tribunal also had in mind that the appellant will face difficulties on return to Kenya. They stated at paragraph 101:

These were factors which the Tribunal had well in mind, and I have no reason to doubt that in exercising the judgment they had to exercise, in striking the balance which they had to strike, that they gave weight which they as a fact finding Tribunal considered appropriate to those factors.

I consider two of the more detailed points on which Miss Cronin relies. First, there is the reference in the same paragraph 101 to the use of the expression “the same extent”. Having set out the paragraph I have just cited, the Tribunal added:

It is further submitted that the Tribunal had insufficient regard to the evidence of Mr Lyambila as to conditions in Kenya. They clearly had it in mind. They twice refer to it. They could have dealt with it more fully; I would accept that. But it is plain in my judgment that they had in mind the in country evidence. They refer to the second report. They are a specialist Tribunal accustomed to assessing, and who must be taken to have knowledge of, the countries with which they are dealing. They refer in terms to the medical facilities available in Kenya, which were also a material factor in this case.

Taking the determination as a whole, the relevant factors have in my judgment been set out and have been adequately considered by the Tribunal. To the very limited extent that there are errors or a lack of clarity or explanation in the determination, in my judgment they fall far short of establishing an error of law with which would entitle this court to intervene in this case and to order a rehearing by the Tribunal.

I agree with Neuberger LJ and Arden LJ, for those reasons as well as those they have given. I would grant permission to appeal generally, but agree that the appeal should be dismissed.