ND (Guinea) v Secretary of State for the Home Department

This is an application for permission to appeal by Mr N D, who is now aged 21, born on 19 February 1986. He has been here since 30 April 2003. He had, according to the findings of the immigration judge in his determination of 15 February 2007, been detained at a very early age of ten and ill-treated. There were apparent links between him and those involved in an attempted coup back in February 1996, in respect of which the authorities in Guinea, a highly oppressive regime, were still interested. However, the immigration judge rejected any suggestion that despite any ill-treatment or persecution at a very young age he would be of interest so many years later, some eleven years after his original detention. The applicant, represented as he was at the time, had been unable to adduce evidence that he would be at risk on return. Today Mr D appearing in person contends that there is evidence to show not only that the authorities are seeking those involved in the earlier coup, but in the light of other coups he would still be of interest to them, if only as a source of information as to those directly involved. It is difficult for Mr D, since he is not represented, to understand this but he has no right of appeal nor have we any right to rule in a way that undermines the factual findings of the person designated to find facts, namely the immigration judge.

He has disclosed no identifiable ground of appeal in law against those findings in relation to risk on return. He does, however, also have an appeal in relation to an alleged breach of his rights enshrined under Article 8. He has been here now since 2003 and has done very well indeed. Not only has he been a good student but he has undertaken work for positive benefit to the community and other young people in his area – see paragraph 53 of the determination. The judge said, however, that the case was not so exceptional on its particular facts that the imperative of proportionality demanded a favourable outcome following what was then believed to be the law in Huang v SSHD [2005] EWCA Civ 105 in the Court of Appeal. Since that case there have been not only the decision in Huang in the House of Lords but a number of cases in this court, particularly AG (Eritrea) [2007] EWCA Civ 801, which demonstrates that even though there is no true test of exceptionality it nonetheless is very difficult to establish that the demands of a consistent and fair immigration control are outweighed by the right to a private life in this country. In many cases it will be apparent from the decision of the immigration judge that, despite reference to the test of exceptionality, a proper decision in accordance with the law has been reached. It is in my view strongly arguable in this case that that is not the position. The conclusion of the immigration judge is so short that it gives no reasons at all why the demands of a fair and consistent immigration control require the removal of this particular excellent young man. In those circumstances it is arguable; and he ought to have the opportunity with the benefit of skilful representation to argue his Article 8 point. For my part that would be the only ground upon which I would give permission and I would urge him to ensure that he seeks legal representation; and I hope that the Legal Services Commission will fund it, since I have reached the conclusion that this case is clearly arguable. For those reasons and on that limited ground I will give permission. I would also order that a copy of this transcript be obtained and sent to this applicant, appellant as he is now, at public expense so he can go to the solicitors with a copy of my judgment.

I agree and so we will grant you permission on the limited Article 8 grounds only.