MA (Afghanistan) v Secretary of State for the Home Department

LORD JUSTICE PILL: This is an appeal by leave of the single judge, granted on paper, against a decision of the Asylum and Immigration Tribunal promulgated on 12 April 2005. An extension of time was also granted, there having been a long delay in the application to the tribunal for permission to appeal following the promulgation of its decision. It is said, and I have no reason to doubt this, that the letter went astray. While the extension of time has been granted, solicitors should not assume that waiting for 14 months after application to the tribunal has been made, in the absence of a reply having been received, will often be justified.

The appellant, Mr A, is 31 years old. He was born and lived in Afghanistan. In 1994 he went to Azerbaijan to study. He returned in 1999 and married. In 2000 he claimed to have fled from the Taliban, first to Tadjikstan and then to the United Kingdom, where he arrived on 14 May 2000. He was refused asylum both on refugee convention grounds and on human rights convention grounds. He appealed and his first appeal was dismissed by an adjudicator on 2 April 2003. He appealed to the tribunal, which remitted the appeal, but only on the Article 8 ECHR ground, for consideration by a different adjudicator. On 28 January 2004 an adjudicator allowed the appeal on the Article 8 ground. The Secretary of State applied for and was granted permission to appeal to the tribunal and it was in January 2005 that the decision allowing the appeal was made.

On behalf of the appellant, Mr Stanage submits, first, that the tribunal had no jurisdiction to consider the Secretary of State’s appeal, secondly that the tribunal erred in law in purporting to find an error of law in the decision of the adjudicator. Under the law existing at the material time, section 82(1) of the Nationality Immigration and Asylum Act 2002 provided a right of appeal against an immigration decision to an adjudicator. Section 101(1) of the 2002 Act, since repealed, allowed an appeal to the tribunal only on a point of law.

The adjudicator heard oral evidence from the appellant and considered references in support which had been submitted on his behalf. While in the United Kingdom he became a Dari interpreter based in the North-East of England where, the adjudicator held, there was an acute shortage of such a skill. The adjudicator referred to letters from an NHS Primary Care Trust and from an oral health clinic stating that:

“We depend on [Mr A] to make a considerable contribution to this work level and we are anxious to retain his employment with the NHS for the long-term future.”

Another letter referred to the appellant being:

“One of only two Dari interpreters in the North-East region and is essential to our work here with asylum seekers and refugees.”

Reference was made to the fact that the appellant related well to both professional users and service users.

The adjudicator considered the position in Afghanistan, stating, at paragraph 9, that the appellant had been reliably informed that his (the appellant’s) wife, together with most members of his family, were killed after he left Afghanistan. The appellant’s claim was based upon the private life aspect of Article 8 and any reliance upon the family life aspect was expressly excluded by him. It is submitted that the appellant’s work was an integral, essential part of his private life. The adjudicator found, at paragraph 13, that the appellant was:

“…in performing this work doing so to a high level of professional competence and I further find that his work is of considerable benefit to the (mostly) public authorities for whom he works.”

At paragraph 18 the adjudicator said that he bore in mind:

“… as one of the relevant factors the public utility of this man’s current work. I bear in mind the fact that he has been in this country for a substantial period of time”.

The adjudicator also considered the possibility of return and referred to the appellant’s belief that his entire family had been killed. The adjudicator added:

“As a result of this he would return (if returned) to Afghanistan to a place where he has no home and no job and from which (except for a short interval between 1999 and 2000) he has been absent since he went to Azerbaijan in 1994. I bear in mind the current somewhat turbulent state of Afghanistan even in Kabul but also the need in Afghanistan for qualified Afghans to return and assist in the rebuilding of that country. I bear in mind the private life that he enjoys in the United Kingdom has been built up throughout a period during which he has known his residence in the United Kingdom has been precarious.”

The adjudicator stated, at paragraph 12:

“… the need to balance immigration control against the need to assist the wider public interest would, after the balancing exercise has been completed, come down in favour of the wider public interest even if the decision involves some abnegation of the rules relating to immigration control”.

That was put by way of summary of the appellant’s case.

The adjudicator’s conclusions are at paragraph 20:

“It would, I think, not be helpful for me to rank the various factors that I have borne in mind in order of importance. I have, however, borne in mind the dictum of the Master of the Rolls in the case of Mahmood, set out in paragraph 55 of the judgment of the Court of Appeal. Doing the best I can to perform the balancing exercise and paying every regard to the importance of immigration control and the need to give deference to the decision of the Secretary of State taken in those matters reserved to him by Parliament, I have nevertheless come to the conclusion that in this particular case it would be disproportionate to remove this man to Afghanistan. It follows, therefore, that in my view the appeal should be allowed under Article 8 of the European Convention on Human Rights.”

For the respondent, Miss Outhwaite submits that there was a fundamental error of law in the adjudicator’s approach. He applied the wrong legal test in that he failed to have regard to the law which provides that only in truly exceptional cases will permission to remain be given on Article 8 grounds. It should be said, in fairness to the adjudicator, that the case of Huang had not been decided when the adjudicator made his decision and awareness of the jurisdiction to be exercised under Article 8 does not appear to have been as widely known as it should have been. There is no dispute as to the law which the adjudicator was required to apply. Points raised in written submissions as to when the decision of DM Croatia [2004] UK IAT 00024 was promulgated are not pursued, and rightly so.

In Huang [2005] EWCA Civ 105, Laws LJ stated at paragraph 59:

“The true position in our judgment is that the 1998 Act and section 65(1) require the adjudicator to allow an appeal against removal or deportation brought 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.”

Paragraph 60:

“The adjudicator’s decision of the question whether the case is truly exceptional is entirely his own. He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances. In our respectful view such an approach is also reflected in Lord Bingham’s words in Razgar, which we have already cited: ‘Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case-by-case basis.’”

The Secretary of State’s grounds of appeal to the tribunal were stated by the Vice President granting leave to be “less than impressive”. The view was taken that it was properly arguable that the conclusion of the adjudicator involved an error of law. As has already been stated, the claimed error of law is one that can be stated succinctly: the adjudicator applied the wrong test. In submitting that the grounds of appeal did not allege an error of law, Mr Stanage relies on the decision of this court in Krasniqi v Secretary of State for the Home Department [2006] EWCA Civ 391.

In a short supporting judgment Chadwick LJ stated at paragraph 41:

“I wish only to add that I endorse his [Sedley LJ’s] observations as to the need for rigour in identifying, with an appropriate degree of precision, which amongst the issues an applicant may seek to raise on an appeal are truly issues of law fit for consideration by an appellate tribunal. I share his concern that the terms in which permission to appeal to the IAT was given in the present case [have] failed to recognise that need.”

In the leading judgment Sedley LJ stated at paragraph 18:

“In the present case the Home Office may perhaps count itself fortunate to have had some issues of law distilled out of, and in one respect added to, a shaky set of grounds in the way I have described. I do not consider that the Vice-President’s distillation from them of an issue of law in relation to the identification of truly exceptional factors was beyond his remit.”

Mr Stanage submits that the present case falls on the other side of the line.

I should also refer to the case of Miftari v Secretary of State for the Home Department where Buxton LJ considered the same issue. He concluded, at paragraph 24, that the tribunal only had jurisdiction to consider the appeal to them if a point of law could be found within the formulated grounds. Buxton LJ, with whom Maurice Kay LJ agreed, decided in that case that an error of law had not sufficiently been identified.

The grounds of appeal are not lacking in length, but do not expressly raise the point now relied on. References are made to factors which, it is submitted, should have been taken into consideration by the adjudicator when considering whether any breach of Article 8 was proportionate. Reference was made to the need for careful and anxious scrutiny of the facts when considering whether there has been any breach of Article 8. Miss Outhwaite for the Secretary of State relies principally on the last sentence in the second paragraph of the grounds:

“It is respectfully submitted that the adjudicator failed to properly and rigorously assess all relevant factors when assessing whether any breach of Article 8 was disproportionate to the maintenance of an effective immigration control.”

Miss Outhwaite submits that, having regard to the test which should have been applied, the allegation of a failure properly and rigorously to assess all relevant factors is in substance a challenge to the test which the adjudicator applied.

A second point has been raised by the court in the course of the hearing as to what factors are relevant when reliance is placed not on the family protection given in Article 8 but only the protection of respect for private life. That arises because of the stress placed by the adjudicator on the value of the appellant’s work to the community in this country.

On the jurisdictional point, which was not taken before the tribunal, I have come to the same conclusion as did Sedley LJ in Krasniqi, though the grounds of appeal are poorly drafted. The point could have been raised in a sentence or two, and the grounds go around the point rather than expressly identifying it, but I would hold that the Vice President, when granting leave, was entitled to find that an arguable error of law had sufficiently been alleged. I have no doubt that in substance there is an argument as to the adjudicator’s approach but that would be insufficient if the grounds of appeal did not sufficiently identify it.

On the substantive issue, Mr Stanage accepts that there are limitations in the way the adjudicator has expressed his decision. Mr Stanage submits that the adjudicator’s failures are only of style. The substance of his finding is manifest, and while the label “exceptional circumstances” has not been stated -- indeed has not been referred to -- by the adjudicator, nevertheless, in substance the adjudicator was deciding that truly exceptional circumstances did exist in this case. The tribunal took a different view. It is accepted by Mr Stanage that, if an error of law is established, it is open to the tribunal to make its own assessment of the evidence as found by the adjudicator and to come to its own conclusion on Article 8. The tribunal referred to the case of Razgar and the statement of Lord Bingham to which Laws LJ referred in Huang. They set out in summary form the facts found by the adjudicator and the submissions of the parties. Paragraph 31:

“The adjudicator does not specifically identify the factors he sets out in paragraphs 13 and 18 of the determination as amounting to exceptional circumstances. However we note that he was addressed on that point and insofar as he was required to approach it on that basis we find that those factors he did identify plainly do not amount to exceptional circumstances. They certainly do not give rise to a disproportion so great that no reasonable Secretary of State could have removed the appellant.”

Paragraph 32:

“The fact that the claimant is providing a skill and resource which is in short supply cannot possibly in itself outweigh legitimate immigration control.”

In setting out the work done by the appellant, the tribunal added:

“None of those factors could possibly outweigh the state’s right to pursue legitimate immigration control.”

The tribunal went on to consider the circumstances in which a return to Afghanistan would take place. Paragraph 34:

“The same really applies to the Adjudicator’s identification of the fact that the Claimant may have no family to return to in Afghanistan. The evidence before the first Adjudicator was that it was simply not known what had happened to the Claimant’s family who may or may not be missing in Afghanistan. So it is by no means certain that he would be returning without family. He is in any event a single, able-bodied young male. The Adjudicator identified at the end of paragraph 18 that there are general difficulties in Afghanistan however impliedly made a reference to the fact that there are now considerable efforts under way to rebuild the infrastructure in Kabul. If the Adjudicator had gone on to consider the current situation in Kabul, which the first Adjudicator did, he should have reached the conclusion that there would be no insurmountable obstacles to the claimant rebuilding his life in Kabul, albeit he would not enjoy the same standard of life. The fact he would be returning to no home and no job (which in relation to the former is by no means certain) are not matters which should tip the balance in his favour on the private life argument. Similarly the fact that he has worked in the UK as a Dari interpreter and is providing a valuable public service whilst he has been awaiting the outcome of his various appeals is also not something which tips the balance in his favour.”

I am not able to accept the submission of Mr Stanage that the adjudicator applied the correct test when reaching his decision. The adjudicator’s error, it appears to me, is one of substance and not merely a failure of expression which this court should be prepared to make good by considering the substance. The word “exceptional” does not appear in the adjudicator’s determination. It is clear that he was seeking to strike a balance between immigration control and private rights, but without keeping in mind, as he was required to do, the exceptional nature of the Article 8 jurisdiction when exercised in favour of appellants. There is nothing in the decision which indicates that he had in mind that the appellant needed to establish that this was one of those exceptional cases where public concern as reflected in immigration control is overridden by private or family factors. The authorities deal mainly with family rights but there may be an exceptional case where it is the private right rather than the family right which is relied on. However, the question required of the adjudicator when assessing the evidence has not been put by him.

The further question, as I have already mentioned, is as to the relevance of the applicant’s contribution to life in the United Kingdom, to the protection of respect for private life. Reference has been made to the comprehensive statement of Lord Bingham in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 where he set out the stages through which the fact-finder should go. It is significant that Lord Bingham, in the first questions to be asked, stated at paragraph 17:

“(1)

Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private (or as the case may be) family life?

“(2)

If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8.

“(3)

If so, is such interference in accordance with the law?”

The starting point must be a consideration of the right involved which, in this case, is the right to respect for private life. On the face of it, the contribution which an applicant is making to life in the United Kingdom is not something which bears upon that right. It bears upon his contribution to the community; it does not directly bear upon his right. Of course, his private right includes the right to conduct ordinary activities, including to work, and to that extent reference to his employment is justifiable. Miss Outhwaite, on behalf of the respondent, accepts that contribution to the community could be a relevant factor, though it could not, in her submission, outweigh other factors. I should say that this point arose only during the hearing and has not been the subject of any specific instructions to counsel.

While the matter has not been fully argued, it appears to me that, when considering the right to respect for private life granted by Article 8, it will not normally be a substantial factor to consider the contribution which is being made to the community. I do not exclude the possibility that it may become a consideration, but one must start with a consideration of what it is that is being protected and it is a right of an applicant and not an assessment of how valuable the applicant’s remaining within the United Kingdom is to the community.

I would dismiss this appeal on the ground that the tribunal correctly identified an error of law. They too, and Mr Stanage relies on this, had not set out the appropriate test as plainly as they might have done, but from the paragraphs I have read, it appears to me that they did have the correct test in mind. They were entitled to find that the adjudicator had not approached the evidence correctly. They were further entitled to make their own assessment of the facts and to reach the conclusion they did.

As to whether there is a separate error of law in the extent of the reliance placed by the adjudicator upon the benefit of the applicant’s services to the community I do not make a specific finding. Once a factor is relevant, the weight to be attached to it is normally for the fact finding tribunal -- the adjudicator in this case. However, it does appear to me that the stress laid upon the point by the adjudicator, the weight which he gave to it, was crucial to his decision to the extent that there probably was an error of law in his approach to the evidence, even had the correct underlying test purportedly been applied.

For the reasons I have given I would dismiss this appeal. I only add, and it is a matter of regret that again one has to raise the point, that it is unfortunate that the court has not been supplied with skeleton arguments at the appropriate time. The appellant’s first skeleton was in good time but we were confronted this morning by a bulk of further material, which included a further lengthy skeleton argument. The respondent’s skeleton was dated only last Friday and it was only yesterday that it was available to the members of the court. That is not a satisfactory state of affairs and it is to be hoped that legal advisers on both sides will have regard to that in future.

LORD JUSTICE MOSES: I agree. I add only three points by way of support for the conclusion that the adjudicator erred in law in failing to apply the correct test as set out by Laws LJ in Huang at paragraph 59. It is plain to me, reading his adjudication as a whole, as it must be, that he was not purporting to find that this applicant’s case was truly exceptional. The first point, which I wish to stress, is that the tribunal’s jurisdiction is founded and limited upon an error of law properly formulated in the grounds of appeal. That was said by Sedley LJ and Chadwick LJ in Krasniqi at paragraphs 18 and 41 and by Buxton LJ at paragraphs 21-24 and Maurice-Kay LJ at paragraph 37 in Miftari. The grounds of appeal in the instant case were so vaguely drafted that it required a process of charitable analysis, not often shown by the Secretary of State to applicants themselves, to identify an error of law. The matter was not assisted by the very broad way in which the Vice President of the tribunal gave leave, in terms which again failed to identify the true issue of law in this case.

The second point I wish to make raises the interesting question as to the extent to which the benefit to the community of work undertaken by an individual is a relevant factor in relation to Article 8. The tribunal in its decision at paragraph 32, in saying that the benefit of this applicant’s translation skills could not possibly outweigh the demands of immigration control, seems to suggest that the factor is not relevant at all. I decline to reach any concluded view. It may well be that when one considers a right to respect for private life, enshrined in Article 8, that it is not a relevant factor, but it must also be borne in mind that, as Bingham LJ makes clear in Razgar, in the passage cited by my Lord, Lord Justice Pill, immigration control is an aspect of the public interest but it is only one aspect. It may well be that the benefit to the community of the work performed by an applicant diminishes the weight to be given to the public interest in immigration control. I emphasise, therefore, that this matter ought not to be finally concluded in a judgment where the prime point is whether the adjudicator applied the right test in considering Article 8.

The third point to make is that this is yet another case where counsel was instructed so late by the Treasury Solicitor that she was unable to fulfil her obligations as to delivery of written argument. It was not counsel’s fault; it was the Treasury Solicitor’s fault. I would also emphasise that there is no point, on the very day of the hearing, delivering documents identified as “essential reading” at a time which is supposed to be for quiet meditation, whilst judges compose themselves very shortly before they enter court.