Miao v Secretary of State for the Home Department

The appellant, a citizen of the People’s Republic of China, arrived in this country with his wife in December 2000, claiming asylum for both of them because of his membership of the Falun Gong movement. His father, mother and sister were already here. The father had been accepted as a refugee earlier in 2000. He lives in the London Borough of Haringey. The sister, who originally came as a visitor, is now married and living with her husband and child in Aylesbury. She appears to be in the United Kingdom as of right: at all events, no question has arisen about her entitlement to remain here.

The appellant’s asylum claim has failed, but he seeks to remain, and his wife with him, in order to look after his father. His father, who suffers from chronic depression and post-traumatic stress disorder as a result of having been imprisoned and tortured in China, began to behave violently towards his wife and daughter. One result was that the parents were divorced in August 2003. The daughter, whose relations with the father the immigration judge described as ambivalent, visits him once a fortnight, her husband accompanying her partly because she cannot drive and partly to ensure her safety. In consequence it is the appellant and his wife who live with the father and take care of him.

The father’s needs are considerable. He needs help with washing and dressing, and vigilance about taking his anti-depressant medication. His psychiatric condition had led him on three occasions in 2003-4 to attempt suicide or to prepare for it by secreting an implement. The opinion of his treating psychiatrist, Dr Beary, was that without the care of the son and daughter-in-law the father would present a high suicide risk.

Following statutory review and an appeal hearing, the IAT upheld the rejection of the asylum claim but remitted to a fresh adjudicator – in the event, under the transitional provisions, an immigration judge, Mr M.P.Keane – the question whether removal would violate the appellant’s rights under article 8 of the ECHR. This question the immigration judge answered in the negative. The AIT and Brooke LJ refused permission on the papers to appeal to this court, but on renewal Keene and Rix LJJ granted it.

Although the two-judge court which gave permission to appeal left open all seven grounds set out in the appellant’s notice, for reasons to which I now turn I consider that those grounds which are viable all go to the issue of law raised by the first ground, namely whether the immigration judge reached his conclusion that removal would be proportionate by legally proper means. This is the ground on which Eleanor Grey, for the Home Secretary, has rightly chosen to meet the appellant’s case, which has been developed before us by Richard Drabble QC.

The immigration judge found the facts I have outlined to be established.  He accepted that the father continued to present a suicide risk. He held, clearly rightly, that the appellant had demonstrated the existence of a family life here, and that within it he and his wife afforded the father “very significant day-to-day care” both practical and supervisory, creating “a significant dependency” going beyond the normal familial ties of love and affection.

At the time, the appellant had permission to work and was earning about £16,000 a year with which he maintained his father. The immigration judge concluded that the appellant’s private life bore much the same features as his family life, but possibly also the satisfaction of working for his living. Since the promulgation of the decision under appeal, however, the permission has been withdrawn. In what follows I will therefore consider family life alone.

Article 8 provides:

The immigration judge, having found that the first paragraph of the article was engaged, set out a series of consequential questions. Uncontentiously, he found that removal would interfere with the appellant’s family life to an extent which would necessarily engage art. 8. He held, again uncontentiously, that any such removal would be in accordance with the law. He then posed the following two questions:

This approach over-elaborates the issue arising under art. 8(2). Once the article is engaged by a substantial but lawful derogation from the respect due to family life, the remaining question is whether the impugned act is necessary in a democratic society for one of the purposes specified in the Convention. The specified purposes relevant to immigration control are ordinarily the economic well-being of the country and the protection of the rights and freedoms of others. (Disorder and crime are more likely to matter in deportation cases.) But the Strasbourg court has wisely avoided the making of political judgments about what democratic societies should and should not be doing by using the concept of proportionality as a surrogate: a democratic society does not use its lawful powers so as to interfere disproportionately with individuals’ human rights. It is by this means that proportionality enters art. 8(2).

It follows that the first of the immigration judge’s two final questions was unnecessary, partly because it postulated the wrong Convention purposes but mainly because it raised no issue that was not raised by the final question.

The latter question was described by the immigration judge as involving “the balancing exercise which is the essence of an assessment of proportionality”, requiring him to “accord due weight to the competing interests”. This may be right as far as it goes, but it is not all. The assessment of proportionality is not a simple weighing of two cases against each other. It arises only when the claimant has established that he enjoys a protected right which is threatened with violation: at that point the burden shifts to the state to prove that the violation is nevertheless justified. To do this the state must show not only that the proposed step is lawful but that its objective is sufficiently important to justify limiting a basic right; that it is sensibly directed to that objective; and that it does not impair the right more than is necessary. The last of these criteria commonly requires an appraisal of the relative importance of the state’s objective and the impact of the measure on the individual. When you have answered such questions you have struck the balance (Footnote: ¹)^[1].

In the field of immigration, the removal of someone who has no right to be here is generally self-justifying: it requires no additional reasoning to establish that their removal is both lawful and necessary for purposes recognised by the Convention. But among exceptional cases are claims like the present one where it is argued that the consequent disruption of family life is greater than is necessary for these purposes – is, in other words, disproportionate. The Immigration Rules and the Home Secretary’s supplementary policies expressly recognise and provide for such cases, and it will be necessary in a moment to consider these in detail. It is only in cases in which the immigrant has no claim under the Rules – in other words where the Rules operate entirely against him – that a freestanding proportionality case may occasionally arise under art. 8, requiring independent proof of circumstances sufficient to outweigh the policy imperatives: see Huang v Home Secretary [2005] 3 WLR 488 §56, per Laws LJ. The present, at least in the form in which it was presented to the immigration judge, was such a case.

The kernel of the appellant’s case before the adjudicator was that the disproportionality of removing him and his wife was actually recognised in all but one respect by the Home Secretary’s own published policy. In its material part the policy reads:

The phrase “compelling, compassionate reasons” is not a happy one. The inapposite comma in the departmental version is absent from the version contained in the Ministerial statement to the House of Commons, announcing the policy, on 17 March 1995. If “compassionate circumstances” in Rule 317, as explained by Chadwick LJ in Senanayake v Home Secretary [2005] EWCA Civ 1530, §21, mean “circumstances which would evoke compassion in the mind of an objective decision-maker”, then “compassionate reasons” have an analogous meaning. The adjective “compelling” is clearly intended to enhance this test, not merely replicate it (which is why the comma is unfortunate), but I do not accept Miss Grey’s contention that it is equivalent to the use of the superlative (“most exceptional”) in Rule 317. The phrase rests on its own bottom. Perhaps the best paraphrase, though it hardly sheds a blinding light, is that it means reasons which would compel, not merely invite, an objective decision-maker to feel compassion.

It was the appellant’s case, argued below by Mr Drabble’s junior Nicholas Armstrong, that the facts I have outlined constituted a compelling compassionate case for allowing him and his wife to remain here. The only respect in which he fell outside the policy was that he was applying here and not at an entry clearance post abroad. The immigration judge, however, did not accept his case. It is necessary, in order to deal with the challenge to his conclusions, to set out in full the critical section of his decision:

A number of things need to be noted about these findings. First, I do not think it is legitimate first to accept the evidence of a doctor, as the immigration judge did (§9), as coming from a treating psychiatrist of impeccable qualifications and longstanding and significant practical experience, and then (§27) to dismiss his prognosis on the ground that “it really amounted to an opinion” and as such was “speculative”. A medical expert witness’s function is precisely to give an opinion on the basis of his clinical knowledge of the patient and of his field. That is what Dr Beary had done. He could do no more, and in the absence of some good reason for doubting his expertise or the factual or logical foundation of his opinion, the immigration judge was wrong to dismiss it as merely an opinion, much less to treat it as speculative or conjectural. Like any prognosis it might turn out to be wrong, but the uncontroverted evidence the immigration judge had – and it was none the worse for being opinion evidence - was that if the son was deported the father’s state, and with it the risk of suicide, would markedly worsen.

By marginalising Dr Beary in this way, the immigration judge left out of account what Mr Drabble submits, and I would accept, was relevant evidence. It included the following. When Dr Beary had seen the father in January 2005 (six months before the hearing) he found him “still severely depressed and actively suicidal”. He reported:

“It is my view that [the appellant] is an extremely important part of [the father’s] support system. If his son is deported there is a significant risk that his father’s mental state will worsen and that he will kill himself.”

In updating reports written in April and May 2005 Dr Beary restated this view. In the latter he went on to say that since the father speaks no English

“I can see no prospect of the social and health services providing long term care and support likely to meet his mental health needs.”

There was cogent evidence that public service provision for the father had been methodically explored without success. A group of one-page reports from the Chinese Information and Advice Centre recorded telephone enquiries made of the local social services disability team (who could not handle mental health problems), the local mental health centre (who could not provide home care and could only refer cases to a psychiatrist with a view to hospital admission), the DWP Disability and Carers Service (who referred the Centre back to social services), and two organisations specifically concerned with the provision of services to Chinese people (neither of which was able to provide continuing care or supervision). I would record, in passing, my appreciation of the thoroughness which these short reports display.

In defence of the immigration judge’s approach Miss Grey has drawn our attention to the judgment of the European Court of Human Rights in Bensaid v United Kingdom  (2001) 33 EHRR 10, where psychiatric evidence about the likely effect of removal on an Algerian suffering from schizophrenic psychosis was described (§39) as “to a large extent speculative”. The reason for this was that the psychiatrist had stated that, while the applicant currently presented no very serious risk of suicide, she would be “more uncertain” of the prognosis were he returned to Algeria because it was “highly likely” that the combined stresses of deportation and the environment in Algeria would trigger an exacerbation of the symptoms (see §21). Mr Drabble points out that the Court, even so, accepted the seriousness of the applicant’s condition (§40), but was not prepared to find “a sufficiently real risk” that removal would violate art. 3. He draws our attention to the concurring opinion of Judges Bratza, Costa and Greve, who do not characterise the psychiatric evidence as speculative and who concur only on the ground that the anticipated risk of relapse had not been shown to be “sufficiently real and certain” to violate art. 3.

Nothing in Bensaid suggests that the informed opinion of a suitably qualified and expert can be dismissed as speculative or conjectural simply because it is an opinion.  This is in any case not a question of European human rights law but of our domestic law of evidence. In my judgment Dr Beary’s evidence was not only admissible but uncontroverted and should have been taken fully into account.

Elsewhere in these findings, far from downplaying the evidence, the immigration judge is scrupulous in not overstating it. At three successive points (§§28, 29 and 30) he limits himself to saying that he is “not prepared to discount the possibility” of help for the father in the son’s absence – from the daughter, from (unspecified) agencies, and from social services with the help of his GP. Every possibility of help, great or small, needs to be taken into account in such an exercise as this; but it has to be said that possibilities of help of which no more can be said than that they cannot be discounted, even if there are two or three of them, do not amount to a great deal in relation to the care of a man as unwell and at risk as the appellant’s father.

It was no doubt for these reasons that the immigration judge recognised, when he reached §31, that the case was still finely balanced. It is the considerations set out in §31 which, as he himself says, tipped the scales against the appellant. It is this paragraph, correspondingly, which attracts the brunt of Mr Drabble’s criticism, and which Miss Grey in turn most strongly defends.

One criticism made of §31 is that it mistakenly treats any reliance on the ECHR as “a means of circumventing the Immigration Rules”. I do not think this criticism is necessarily right. The point could perhaps have been better expressed, but what the immigration judge is in my opinion saying is that, at least in the context of art. 8(2), the Convention rights have to operate with the Rules, not independently of them. They are not a trump card but a control mechanism. Mr Drabble accepts as much.

More centrally, the paragraph gives decisive weight to two things. One is that it is open to the appellant to make an entry clearance application from abroad. The other (at least as I read it) is that it is not impossible for the application to succeed under Rule 317, given in particular the fact that the ECO would have to apply art. 8.

The second of these, if it is what the immigration judge meant to say, is wrong, as Mr Armstrong had submitted it was. Rule 317 is concerned only with persons “seeking indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom”. It is for exactly this reason that the Family Reunion Policy, parts of which I have set out earlier in this judgment, has been adopted (Footnote: ²)^[2]. Under this policy the ECO would have to decide whether the circumstances described in the earlier part of this judgment are such “compelling, compassionate circumstances” that the applicant should be given the benefit of the policy and be reunited with his father notwithstanding that he is not within the primary class of spouses or minor children. This is a more favourable entry clearance option than the option considered by the immigration judge under Rule 317.

At the end of §24 the immigration judge said:

“For reasons which I recite later in this determination I am not prepared to conclude that the separation would be of a substantial duration.”

Although the judge does not go on to say so, it is implicit in this that the Home Secretary, albeit insisting on removal and opposing the appeal on its merits, has formed no view on any family reunion application which may be duly made abroad. But the first and principal ground of appeal is that it was for the immigration judge himself to consider the policy in the context of art. 8 and to reach his decision on the proportionality of removal in the light of it. The argument was, and is, that since the appellant came within the policy in every respect save his present location, it would be an unconscionable disruption of his family life to send him back to China simply so that he could apply from the correct place, when the very interruption of care might be fatal. Right or wrong, it is submitted that the immigration judge nowhere dealt with this argument.

For the Home Secretary it is submitted that the argument is self-serving. The father’s dependency on the appellant and his wife has arisen solely because of their presence here in breach of immigration control and asylum law. To let the appellant take advantage of this by securing a decision on compassionate grounds from his present position of advantage would be to sacrifice the consistency both of immigration control and of the family reunion policy. Whether the prospects on application abroad are good or poor, Miss Grey submits, it is a proportionate response to the breach of immigration control to require the application to be made there.

Before I consider this key issue, it is necessary to note that there is in fact a separate departmental policy which is directly in point but which was not drawn to the immigration judge’s attention. Miss Grey has brought it to ours. It is the Carers Policy, dated June 2001, which features as section 2 of chapter 17 of the Immigration Directorates’ [sic] Instructions. It applies to “persons here in a temporary capacity seeking leave to remain to care for a sick relative or friend” and who therefore, like the appellant, fall outside the Rules. Since it may be relevant to other cases, a complete copy is annexed to this judgment. In short, it provides for admission as a visitor – not, in other words, via entry clearance - for 3 months with a view to making care arrangements that do not involve the applicant. The period may be extended on proof of ongoing efforts to do this.

The existence of this policy, even if it had been made known to the judge, would not, however, have been decisive of the appeal. It would still have been, as it still is, the appellant’s case that removal was in all the circumstances a disproportionate invasion of his rights under art. 8 because of the applicability, but for his presence in this country, of the family reunion policy. It is common ground that if the appeal, so framed, had been allowed under s.65 of the Immigration and Asylum Act 1999, the adjudicator would have remitted to the Home Secretary the decision as to how long the appellant should be admitted for. Counsel tell us that 3 years is a standard, though not invariable, period.

In my judgment, on the facts found by the immigration judge and the medical evidence which he should have taken into account, the reasons advanced by the appellant for letting him stay here with his father were incontestably “compassionate, compelling reasons”. No objective decision-maker, giving the phrase the kind of meaning suggested earlier in this judgment, could have concluded otherwise. The father, traumatised, chronically depressed and socially isolated, was a continuous suicide risk. The son and daughter-in-law were taking care of him out of affection and a sense of familial obligation. At the time of the hearing, and until his permission to work was revoked in consequence of its outcome, the son was able to maintain all three of them without recourse to public funds. With only exiguous possibilities of substitute care, and then of an intermittent or impersonal nature, even a relatively short interruption might be mortal; and if an ECO were to refuse entry, the interruption might be greatly prolonged. Language has lost its meaning if these are not compelling compassionate reasons for letting the appellant stay for the time being.

But it does not follow that removal would be disproportionate. It follows only that the proportionality of removal has to be assessed on the footing that, but for his presence in this country, the appellant would come within the family reunion policy. I do not accept Mr Drabble’s submission that the assessment must come out in his client’s favour. As I have indicated earlier, there are arguments both ways, and this court is not the right forum for their resolution. What is now needed is remission for a reappraisal of proportionality on a correct footing.

This footing will include the following. First, the diagnosis and prognosis of the father’s condition given by Dr Beary. Next, the (avowedly slender) possibilities found by the immigration judge of substitute care from the daughter, social services or medical sources. Any or all of these may have been updated by the time of the remitted hearing. Then there will be the Care Policy, which appears to cover the appellant’s case. It does not exhaust his grounds for seeking leave to remain, but it does demonstrate that not everyone who is needed as a carer by a person settled here is expected by the Home Secretary to apply from abroad.

Although nothing in s.65 appears to dictate it, we are told that the practice, if an appeal is allowed, is to remit to the Home Secretary the consequential period of leave to remain, with recourse to judicial review if too little is allowed. It may be that in another case this practice will call for reconsideration, but in the present case it will be sufficient to remit the issue of proportionality for decision on the footing of the previous decision read in the light of the present judgment, and of such updating evidence as may be tendered. The remitted hearing will be before a fresh immigration judge unless the parties agree (and there is no reason why they should not) that it is to be the immigration judge, Mr M P Keane, who has conducted the appeal so far.

The appeal is allowed accordingly.