N v Secretary of State for the Home Department

LORD JUSTICE PILL: This is an appeal against a determination of the Asylum and Immigration Tribunal promulgated on 18 October 2005, whereby the tribunal found that there was a material error of law in the decision of an adjudicator promulgated on 15 February 2005. The adjudicator had allowed an appeal by Ms N against a decision of the Secretary of State that removal of the appellant from the United Kingdom would not constitute a breach of Article 8 of the European Convention on Human Rights. The tribunal granted permission to appeal to this court.

The appellant is 36 years old and was born in Vietnam. She arrived in the United Kingdom in November 2001, having been granted entry clearance as a student. She formed a relationship with a man and gave birth to a son, M, by him, on 10 November 2003. He was a United Kingdom resident but had nothing further to do with her. The son, M, was registered as a son of the man and was registered as a British citizen on 9 November 2004, on the basis that he was born in the United Kingdom and his father was settled here.

The appeal to the adjudicator was based on the difficulties which the appellant would face either in the United Kingdom or in Vietnam. Importance is attached to the fact that the child is a British citizen. That is relevant in two respects. It is submitted first that while he has the right to remain in the United Kingdom, the appellant would not be permitted under the immigration rules to return here. Secondly, if mother and son were to return to Vietnam, the fact that he was a British citizen would be taken against him in certain respects to which the adjudicator refers. The adjudicator found in paragraph 39:

“This factor and the other factors that I have mentioned about would make it disproportionate for the appellant to be removed to Vietnam and there would be a consequent breach of this country’s obligations under Article 8.”

The tribunal substituted its own finding that there was no breach of Article 8. However Miss Giovanetti on behalf of the Secretary of State accepts that there is an error of law or errors of law in the tribunal’s approach to the issue. She does, however, challenge any submission that the tribunal had no jurisdiction to consider the appeal to the tribunal. I agree with that and indeed Miss Rogers for the appellant does not now take a contrary view. There was an entitlement in the tribunal to find an error of law by the adjudicator.

Where the tribunal’s decision cannot however be sustained is in what Miss Giovanetti accepts is a lack of clarity in the reasoning, including a lack of clarity as to the relevance of the fact that the child is a British citizen. Ms Giovanetti accepts that remission to an adjudicator is appropriate. Miss Rogers for the appellant submits that, on consideration by this court, there is no error of law in the finding of the adjudicator. Having submitted that there was jurisdiction in the tribunal, Ms Giovanetti goes on to submit that, through no fault of her own because the case had not then been decided, the adjudicator has erred in failing to apply the test in circumstances such as these laid down in this court in Huang v Secretary of State for the Home Department [2006] QB 1. Miss Rogers submits first that while the adjudicator could not have known of the test now laid down, she did in fact apply a test similar to it and of equal severity. The fact that she did not use the expression “truly exceptional”, which appears in Huang, does not prevent the adjudicator in effect having found that the circumstances were truly exceptional. Secondly, Miss Rogers submits that, upon the findings of fact of the adjudicator, this court should conclude that the only reasonable conclusion is that the case was truly exceptional within the test in Huang. Miss Rogers’ further submission is that if the court is against her on the earlier points and decides upon a remission, the court should give guidance as to the relevance of British citizenship in the present context.

I say at once I am not prepared to follow that course, and Miss Rogers accepts that there are obvious dangers in this court doing so without a specific case being before it. The facts of this case, she submits, are rare in that there is a mother without rights to stay in or return to the United Kingdom and a child who does have such rights. It would not in my judgment be right, if there is to be a remission, for this court to indicate what test should apply and what weight should be given to this factor.

Miss Rogers has identified the facts which in her submission make the case a truly exceptional one within the meaning of that expression in Huang. The statement of principle in Huang is at paragraph 60:

“In such a case the adjudicator is not ignoring or overriding the Rules. On the contrary it is a signal feature of his task that he is bound to respect the balance between public interest and private right struck by the Rules with Parliament’s approval. That is why he is only entitled on article 8 grounds to favour an appellant outside the Rules where the case is truly exceptional. This, not Wednesbury or any revision of Wednesbury, represents the real description which the law imposes on the scope of judgment allowed to the adjudicator. It is not a question of his deferring to the Secretary of State’s judgment of proportionality in the individual case. The adjudicator’s decision of the question whether the case is truly exceptional is entirely his own. He does refer 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 R (Rasgar) v Secretary of State for the Home Department [2004] AC 368 para 20, 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.’”

It is clear from the decision that the adjudicator understandably was following an approach which was modified by this court in Huang. In Huang the court went on to consider the specific cases before it and in two of the cases, Kasmiri and Abu-Qulbain, the court stated at paragraph 63:

“… there is no possibility that a tribunal properly directing itself in accordance with the approach being described could have found anything amounting to truly exceptional circumstances.”

In relation to Huang, the court found that it was in a different category:

“We consider that a tribunal might find that in light of the whole history Mrs Huang’s circumstances should be regarded as truly exceptional so as to give rise to a claim under article 8 notwithstanding that she does not meet the Rules.”

Thus the court was prepared to consider for itself the facts upon which the decision was based. Kashmiri and Abu-Qulbain were the converse situation; that is, of the court holding that no tribunal could find exceptional circumstances. In Huang, the court found in the applicant’s favour that a tribunal might find that the circumstances should be regarded as truly exceptional. I will return to that point a little later.

The adjudicator has set out the circumstances upon which she reached her conclusion and, by way of summary, Miss Rogers has itemised the factors upon which the exceptionality of the appellant’s case in her submission arises:

“a)

Her son is a British citizen who was too young to remain in the UK alone;

b)

her son would in any event be deprived of all family life if he were to be left in the UK;

c)

that the appellant’s removal involved constructive removal of a British citizen child;

d)

that British citizen child would then be deprived of all benefits of being a British citizen and brought up in social and economic circumstances far worse than would be employed in the UK;

e)

that her removal would be in breach of the UK’s obligation’s under UNCRC since on any rational view it will not be in the best interests of N for this removal to take place;

f)

that the appellant and her son fall into a narrow category of cases where the access of another parent settled in the UK means that the appellant could never apply to join her son in the UK if he were to reside here until she becomes dependent on her son.”

The adjudicator has considered the difficulties which mother and son would face in Vietnam; increased, it is said, by the fact of the child’s British citizenship. In many ways services are inferior in Vietnam to those in the United Kingdom and the appellant has additional difficulty as a single mother who has given birth out of wedlock. However, Miss Rogers accepts that judged as a Vietnamese case alone it could not be treated as truly exceptional within the test which should be applied. What makes it truly exceptional, in her submission, is the dimension that M is a British citizen; I referred to the two possibly relevant aspects of that. Ms Giovanetti accepts that in their consideration of the issues, the tribunal has not confronted this one and has tended to downplay the relevance of it. Ms Giovanetti accepts that it is a factor to be taken into account in any Article 8 decision. She submits that the weight to be given to it depends on the circumstances and is essentially a matter for the fact-finding tribunal.

The adjudicator posed two questions in the course of referring to relevant evidence. At paragraph 32:

“What I must consider is whether given the facts as they stand the decision of the Secretary of State is so disproportionate that it falls outside the range of reasonable responses and is therefore unlawful.”

Under paragraph 34:

“Quite clearly from this report there will be difficulties which the appellant will face upon return to Vietnam, but can these be said to be insurmountable and therefore said to be enough to show that the interference with family life is disproportionate.”

The statement of facts is full, but the conclusion is in a single sentence at paragraph 39:

“This factor and the other factors that I have mentioned above would make it disproportionate for the appellant to be removed to Vietnam and there would be a consequent breach of this country’s obligations under article 8.”

Miss Rogers submits that the adjudicator has applied a heightened test and in context that single sentence conclusion of the adjudicator inevitably amounts to the finding that the circumstances were truly exceptional in the sense which this court described in Huang.

I am not able to accept that submission. It is not in my judgment possible to extrapolate a finding of disproportionality, made on the basis of the test which had earlier commended itself to two tribunals, into a finding of true exceptionality within the meaning of Huang. That issue needs to be confronted squarely and references to reasonable range of responses and to proportionality do not in present circumstances amount to a finding that the true test was applied or that this court should accept that the true test was applied.

I turn briefly to the second submission, which is that on a consideration of the facts this court should conclude that the circumstances were truly exceptional. I am not prepared to reach those conclusions. I refer to the approach of this court in the case of Huang and others. This is not one of those rare cases in which a court could itself say that circumstances were truly exceptional. This court reached the converse conclusion in Kasmiri and Abu-Qulbain. In Huang the court, rightly in my respectful view, accepted that the facts might be open to a range of findings and conclusions. It did not go beyond stating that the matter should be remitted so that the tribunal itself could make appropriate findings applying the true test.

Nothing I have said, save my agreement with the submission that British citizenship of the child is a relevant factor in the present situation, should be taken as indicating an expression of any view as to how the fact-finding tribunal should determine this case. I would remit it to the AIT for an immigration judge or judges to determine the appeal from the Secretary of State’s decision on the basis of the now approved test. On that basis, I would allow this appeal.

LORD JUSTICE SCOTT BAKER: I agree with the judgment of my Lord, Lord Justice Pill, and the order proposed by him.

LORD JUSTICE NEUBERGER: I also agree for the reasons that my Lord, Lord Justice Pill, has given that this appeal should be allowed to the extent he has indicated.