AG (Eritrea) v Secretary of State for the Home Department

This is a case relating to an asylum claim made by the applicant, AG. He came to this country in August 1999. His claim was rejected in August 2003. The appeal came to the adjudicator, Mr Camp, who allowed the appeal in April 2004. He generally accepted the credibility of the applicant’s account, including his case under Article 3, and he also held that he was entitled to succeed under Article 8 of the European Convention of Human Rights. At paragraph 21 he said:

“the question of proportionality therefore amounts, to the question of whether the interference with the appellant’s private life is necessary in a democratic society for one of the purposes mentioned [in Article 8].”

He summarised the applicant’s current circumstances as he saw them. He concluded:

“On the one hand, there are the needs of this young man, now 19, who has been in the United Kingdom for over four years and whose has established a new life in this country. He has attended school and college here and hopes to go to university. He has no family in Eritrea. He does not speak the language. He has no connection with Eritrea other than his mother’s ethnic origin. He has been traumatised by his past experiences. He would face a risk of ill-treatment and torture in Eritrea. On the other side of the balance is the need for the respondent to maintain a fair immigration policy. I have to ask myself whether allowing the appellant to stay in the United Kingdom would give a message to the others that they could behave in the same way and circumvent the immigration system. I consider this highly improbable.

“I conclude that the interference in the appellant’s private life, which would result from his removal to Eritrea is not necessary for any of the purposes mentioned [in Article 8.]”

The Secretary of State appealed against that decision. On 20January 2006, the new AIT ordered reconsideration.

By this time the decision of the Court of Appeal in Huang v the Secretary of State had been handed down. That was on 1 March 2005. That case concerned principally the extent to which the tribunal should regard itself as bound by the Secretary of State’s decision on questions of proportionality, but Laws LJ also indicated the correct approach to the proportionality test. At paragraph 59, he said:

“The true position in our judgment is that the HRA and s.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.”

He went on to say and explain why an applicant can only succeed:

“… where the case is truly exceptional”.

referring to the words of Lord Bingham in the case Razgar (para 20):

“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.”

Based on that assessment Laws LJ dealt with the particular cases before him. In the case of Huang, it was held that there was an arguable proportionality case under Article 8. However, he dismissed the appeal in respect of another case called Kashmiri, where he said:

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

In the present case, the AIT referred to the Court of Appeal’s decision, which it rightly regarded as declaratory of the law, even though it had not been available to the adjudicator. The tribunal said:

“Because Huang had not been decided the adjudicator made no reference to the appeal being truly exceptional. Nevertheless Huang is declaratory as to the law and therefore it was an error of law not to comply with the approach in Huang even though it had not been decided.”

It also referred to the previous case-law to similar effect:

“Although the decision in Huang was not handed down until long after the determination was promulgated, various judgments from the Court of Appeal, and of the Tribunal, have made it clear, in a variety of language, at various times, that whatever the appropriate test for Article 8 was it comprised a high hurdle for an appellant to achieve against the respondent obligations to maintain Immigration Policy. After a variety of different approaches the Court of Appeal has settled on the wording in Huang but, nevertheless, the test has been high, however expressed, since the coming into force of the Human Rights Act 1998.”

The tribunal held that there had been an error of law, and directed full reconsideration.

The matter was then dealt with by the tribunal on the merits, and in the decision of 6June 2006 they dismissed the appeal, so reversing the decision of the adjudicator. In dealing with Article 8, they followed the approach of Laws LJ in Huang, referring also to its interpretation by the Court of Appeal in a more recent case, Krasniqi [2006] EWCA Civ 391.

An application was made for permission to appeal to this court. I granted permission on 5 October 2006 on the grounds that it was open to realistic argument that the reasoning of the adjudicator on the Article 3 issue had not been sufficiently obscure to give rise to an error of law; secondly that “the adjudicator’s understandable failure to use the language of Huang” did not necessarily undermine the legality of his decision on the Article 8 issue.

The next step was the decision of the House of Lords in Huang case, which was handed down on 21 March 2007. The judgment of the House in substance upheld the decision of the Court of Appeal in Huang, but there were important comments on the proportionality test under Article 8. Paragraph 20 reads as follows:

“In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar above, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test.”

In the dealing with the disposal of the cases before it, the House upheld the decision of the Court of Appeal in respect of Mrs Huang. However, it adopted a different approach in the case of Mr Kashmiri, where Laws LJ had said that no tribunal properly directed could have allowed the appeal under Article 8:

“In Mr Kashmiri's case, the Secretary of State did not seek to uphold the Court of Appeal's order if the House should find that the Immigration Appeal Tribunal had misdirected itself, fairly accepting that Mr Kashmiri was entitled to a decision by a properly directed tribunal.”

So the appeal was allowed.

Although there may have been good reasons for the Secretary of State to make the concession on the facts of the case, it does not make the interpretation of the decision any easier. It would have been very helpful to know what the House’s views were on the application of their new approach to a specific case which this court had regarded as unarguable. However, we have to take the decision as it is.

The present appeal was listed for hearing today on the grounds on which I originally gave leave. However, not surprisingly, in the meantime Mr Nicholson for the applicant had submitted a supplementary skeleton argument relying on the House of Lords decision to advance two new grounds. First, he submits, even if the adjudicator’s determination was not in accordance with the Court of Appeal’s judgment in Huang, it was entirely in accordance with the House of Lords judgment. If that was right, then the adjudicator’s decision allowing the appeal under Article 8 should have been left standing.

The second ground, in the alternative, is that the appellant, like the appellant in Kashmiri, is entitled to a hearing by “a properly directed tribunal”, once it is accepted that his rights under Article 8 are engaged.

At the end of last week I was asked to approve a Consent Order remitting the case to the tribunal for reconsideration; in effect accepting the second of those new grounds put forward by Mr Nicholson. I will read the last paragraph:

“The Respondent accepts that the Asylum and Immigration Tribunal did carry out its reconsideration on the basis of the test of exceptionality as then understood in the Court of Appeal’s judgment in Huang. Accordingly, it accepts that the Appellant’s appeal should be allowed to the extent that the appeal is to be remitted to the Asylum and Immigration Tribunal for reconsideration under Section 103A of the 2002 Act.”

I indicated that I was not willing, without hearing argument, to approve a remittal in that form. The reason I took that view was that I was concerned that this case was probably one of a large number of cases in which the AIT understandably had used the language of “exceptionality” relying on the decision in Huang in this court. It seemed to me that to send all those cases back for reconsideration, without some guidance as to what the new approach should be in practice, would not be very helpful.

Furthermore, I was far from convinced that the test has in fact altered in a way that is likely to affect the great majority of cases. As has been seen in the passage I read in Laws LJ’s judgment, the exceptionality approach is not put forward as a separate test, but as the natural consequence of the ordinary principles of proportionality in the context of immigration law. As Sedley LJ said in Krasniqi:

“… while the appraisal of proportionality is procedurally a matter for the immigration judge, substantively it must start from the position that the maintenance of lawful immigration control is ordinarily sufficient to make removal proportionate. From this it follows that there must be something truly exceptional to make an otherwise lawful removal disproportionate: it is now axiomatic that article 8 will be engaged only in a small minority of exceptional cases, disclosing ‘the most compelling humanitarian considerations’.”

He was referring there of course to Lord Bingham’s words in Razgar and to Lady Hale’s speech in the same case.

Although it is now clear that “exceptionality” as such is not a distinct legal test, I doubt if there is much difference in practice from saying that the result of the correct approach to proportionality is that only a very small minority of cases will succeed. The implicit assumption must be that there has to be something unusual about the particular case to part from the ordinary principles of immigration control. In any event, before a case is sent back to the AIT, this court should have an opportunity to give some guidance on how if at all the approach should be revised.

I have heard very helpful submissions from Mr Nicholson, for the applicant, and Mr Strachan, for the Secretary of State, both of whom I think would remain content for the case to go back in accordance with the consent order, but they both accept that it is a matter for this court. Also, I think, they accept that guidance would be helpful.

Accordingly I propose, subject to my Lord’s views, to grant permission to Mr Nicholson on the additional grounds raised by his supplementary skeleton argument, and to direct that those along with the original grounds for which permission was granted be heard by the full court. It should be dealt with as soon as possible, and it should be dealt with by a court including at least two Lord Justices familiar with asylum cases. I will also direct that this judgment may be referred to in other cases, as an exception to the normal approach for judgments on leave applications.

I agree.