NG (Pakistan) v Secretary of State for the Home Department

This is an appeal brought with permission granted by Sir Henry Brooke, on 16 July 2007, against the decision of Senior Immigration Judge Nichols promulgated on 4 April 2007 when, on a reconsideration, she dismissed the appellant’s appeal against the decision of the Secretary of State made on 14 April 2006 to refuse the appellant’s application for leave to remain in the United Kingdom under paragraph 289(A) of the Immigration Rules or, as the Secretary of State’s decision letter succinctly put it, “on domestic violence grounds”. However, at least by the stage when the case reached the senior immigration judge, it was common ground that the appellant had no claim to stay under the Rules because she had not made her application under Rule 289(A) until two years after her earlier limited leave to remain as a spouse had expired. The issues before Senior Immigration Judge Nichols and, indeed, Immigration Judge Phull who had first determined the appellant’s appeal, turned entirely on Article 8 of the European Convention on Human Rights.

The appellant is a Pakistani national, born on 22 July 1974. On 18 March 1998 she married a British citizen of Pakistani origin. She entered the United Kingdom on a spouse’s visa on 29 November 2000. The visa was extended until 25 November 2001. Two children -- a boy and a girl -- were born to the marriage in the United Kingdom and are British citizens. They are three and seven years of age, respectively. Unfortunately the appellant’s husband suffered from a mental illness and was prone to violence towards her. In July 2001 she left the matrimonial home after a beating suffered when she was pregnant. She returned in April 2003, only to leave again in February 2004 after her husband had been admitted to hospital owing to his mental health difficulties. She applied to the Home Office for leave to remain under the domestic violence policy -- that is as I understand it Rule 289(A), in March 2004. She lived with her brother in the Birmingham area from May 2004 onwards. She submitted her application to the Secretary of State for indefinite leave on 22 April 2004. The Secretary of State, whose decision letter was as I have indicated not given until 14 April 2006, considered that she had failed to provide adequate evidence that her marriage had broken down as a result of domestic violence. However, the Secretary of State proceeded to consider whether she should be allowed to remain exceptionally outside the Rules, having regard in particular to Article 8 of the Convention. He decided she should not. The appellant’s appeal against that decision was determined by Immigration Judge Phull on 9 June 2006.

The immigration judge accepted (paragraphs 13-15) that the only issue before her was that arising under Article 8. In light of Mr Juss’s submissions this morning I should cite paragraph 15:

Reference to “boys” is a mistake. As I have said the children were a boy and a girl. The case advanced on Article 8 was essentially that if the appellant were removed to Pakistan she would be victimised and ostracised as a single mother, and if her children went with her they would be denied the right to enjoy family life with both their parents. As it was, they enjoyed regular contact with their father. Immigration Judge Phull considered this court’s decision in Huang v SSHD[2005] EWCA Civ 105. Having found (paragraph 15) that family life subsisted between the appellant and her children in the United Kingdom, the immigration judge held, implicitly at least, that there would prima facie be a violation of Article 8 if she were removed to Pakistan; and so the question was whether that removal would in the circumstances be proportionate to the legitimate aim of immigration control and fair dealing between one prospective immigrant and another. Immigration Judge Phull directed herself that since the appellant had no claim to stay under the Immigration Rules, she could only prosper under Article 8 if she could show that her case was “truly exceptional”. That was the language this court used in Huang. She found that the case was indeed truly exceptional. There were the beatings by the husband, and the submission about ostracism and violation. The appellant could not enjoy family life “with her two children confined within the walls of her parents’ home” (paragraph 20). If the children left the UK with their mother they would be denied regular contact with their father.

In the result Immigration Judge Phull accepted that there were exceptional circumstances and allowed the appeal. The Secretary of State applied for a reconsideration on the ground that Immigration Judge Phull’s decision was marred by a material error of law. So the matter came before Senior Immigration Judge Nichols. She was to observe (paragraph 11) that ground 2 of the Secretary of State’s grounds was “the key issue in the case”. That ground asserted that the immigration judge had failed to apply the tests set out by Lord Bingham in R v SSHD ex parte Razgar[2004] UKHL 27, which are to be applied for the determination of an Article 8 appeal. The senior immigration judge (see paragraph 12) set out the five questions Lord Bingham said fall to be asked in a case where removal was resisted on Article 8 grounds. I need only set out the first two questions:

The senior immigration judge held that there was an error of law in the immigration judge’s reasoning. Essentially, she had not addressed the second question posed in Razgar; therefore she had not properly considered the question whether there was or was not evidence of grave consequences flowing from the appellant’s prospective removal sufficient to engage the operation of Article 8. This is what she said:

The appellant by Mr Juss first submits that the senior immigration judge overruled the immigration judge on matters of fact and had no business doing so unless the immigration judge’s findings were perverse. Mr Juss submits that, far from being perverse, the immigration judge’s approach could not be flawed legally. The argument, as it was originally put in writing, is centred on the senior immigration judge’s conclusion that Article 8 was not engaged because the appellant’s removal would entail no grave consequences. The appellant also criticises the senior immigration judge for being dismissive of the ex-husband’s frailty. So much for the argument in writing. Mr Juss developed it this morning by submitting, with some force, that there was no material error of law by the immigration judge, essentially because -- on a proper reading of her decision, not least paragraph 15 -- she had in fact, albeit implicitly, addressed the Razgar questions. I will come to that submission in a moment.

The senior immigration judge has not, as it seems to me, differed from the immigration judge upon any matter of primary fact. She has merely examined the facts in light of the approach to Article 8 cases required by the Razgar decision. I will refer shortly to the House of Lords’ disposal of the Huang case. The House had not decided Huang at the time of the immigration judge’s decision. The senior immigration judge emphasised the importance of question two in Razgar as to the gravity of the consequences of any interference with Article 8 rights. This had not, she concluded, been confronted by the immigration judge. The potential loss of contact with the children’s father would not itself suffice.

Generally these are the points which, on the senior immigration judge’s decision, go to the question whether Article 8 was engaged. There was no prospect of the father actually caring for the children. The children would travel with their mother if she were removed. It was the mother’s Article 8 rights that were under scrutiny, not the father’s or even the children’s (see the decision of the IAT in Kehinde (Appeal – section 65 1999 Act – Rights of Others) Nigeria[2001] UKIAT 00010). Next, the appellant had family in Pakistan. The earlier domestic violence was historic. The children were young and could settle in Pakistan. It could not be said that their removing to Pakistan would end all contact with the father; and the appellant’s fears of isolation and ostracism could not, of themselves, make an Article 8 case.

Before expressing a view on this first part of the case as to the applicability of Article 8, it is convenient to articulate the second argument advanced by Mr Juss, relating to proportionality. Here reference is made to the decision of the House of Lords in Huang[2007] UKHL 1. Their Lordships made it clear that there was no special test of exceptionality in an Article 8 case where such a case is brought outside the Immigration Rules. The focus here is on the application of the proportionality requirement, which of course assumes that Article 8 is engaged in the case. It is said that Immigration Judge Phull considered all the matters commended in Huang in the House of Lords, albeit that decision had not in fact been made by the time she arrived at her determination. In particular, Mr Juss cites this passage from Huang:

Mr Juss would submit that Immigration Judge Phull’s decision is a proper answer to this question and the senior immigration judge’s decision is unduly restricted and unduly dismissive of the reasoning of the immigration judge. Now I will gather these arguments together and turn first to the question whether the senior immigration judge was right to conclude that the immigration judge had not properly reasoned the second question in Razgar. It seems to me, notwithstanding Mr Juss’s insistence this morning, there was a failure here by the immigration judge to focus certainly on Razgar question two. Such a focus is not to be found in paragraph 15 of the immigration judge’s decision. On the facts as I have summarised them, the true scope for a complaint that the appellant’s private and family life would be substantially or gravely undermined by her removal was very limited indeed. The immigration judge did not effectively confront the question. I consider that the senior immigration judge was entitled to hold that her determination was flawed by an error of law.

I am not, with respect, impressed by some marginal criticisms directed by Mr Juss to points in paragraphs 17, 18 and 19 of the senior immigration judge’s decision. I consider that, in the particular circumstances here, the senior immigration judge was justified in concluding that Article 8 was not engaged; but as regards that, the case may be said to be very much upon the borderline.

If that were a wrong conclusion, as I have shown, the senior immigration judge turned in the alternative to the issue of proportionality. As regards that, again one goes back to Razgar. In paragraph 20 of his opinion, Lord Bingham said:

It seems to me that this is such a case. I consider that the senior immigration judge’s reasoning on proportionality is consistent with their Lordships’ decision in Huang and entirely supportable as a matter of law. The fact that the exceptionality test, adumbrated by this court in Huang, has been set aside by the House of Lords -- that was really Mr Juss’s third point -- does not, I think, assist the appellant on the facts and merits here. This was a weak Article 8 case, if I may express it in overall terms. The senior immigration judge’s analysis is well supportable. The immigration judge dealing with the matter first time around did not, as it seems to me, properly grapple with the Razgar question. In all these circumstances and for all those reasons, I would dismiss the appeal.

I agree.

I too agree.