CH (Jamaica) v Secretary of State for the Home Department

CH, the appellant, is a citizen of Jamaica who on 20 March 2000 married LH during a visit to England. Her husband, who was a person present and settled in this country and indeed had been here for some forty years, unfortunately died on 2 February 2003, during the long pendency of the appellant’s application for leave to remain based on her marriage. Her marriage, her husband’s death, and the long delay which overtook her application, are the dominant themes of this appeal. Also central to it are the terms of a guideline policy, known as the DP 3/96 Marriage Policy, published by the Home Office to deal with cases outside the Immigration Rules where an applicant for leave to remain relies on marriage to a person present and settled in the UK.

Relevant extracts from the DP 3/96 policy are as follows:

“Introduction

This notice provides guidance, in general terms, on the consideration of cases of those persons liable to be removed as illegal entrants or deported who have married a person settled in the United Kingdom…any relevant compassionate circumstances, including those referred to below, should be considered…

Policy

2.

Paragraph 364 of the Immigration Rules explains that deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained here without authority but that all the known relevant factors must be taken into account before a decision is reached. These include:

(i)

age;

(ii)

length of residence in the United Kingdom;

(iii)

strength of connections with the United Kingdom;

(iv)

personal history, including character, conduct and employment record;

(v)

domestic circumstances;

(vi)

previous criminal record and the nature of any offence;

(vii)

compassionate circumstances;

(viii)

any representations…

4.

Where enforcement action is under consideration and the offender is married to someone settled here a judgement will need to be reached on the weight to be attached to the marriage as a compassionate factor. Caseworkers should bear in mind that paragraph 284 of the Immigration Rules which sets out the requirements to be met for an extension of stay as the spouse of a person present and settled in the United Kingdom, specifically requires, amongst other things, a person to have a limited leave to remain here and to have not remained here in breach of the immigration laws, in order to obtain leave to remain on that basis. Therefore, the fact that an offender is married to a person settled here does not give him/her any right to remain under the Rules.

Marriages that pre-date enforcement action

5.

As a general rule deportation action under 3(5)(a) or 3(5)(b) (in non-criminal cases) or illegal entry action should not normally be initiated in the following circumstances (but see notes below):

(a) where the subject has a genuine and subsisting marriage with someone settled here and the couple have lived together in this country continuously since their marriage for at least 2 years before the commencement of enforcement action;

and

(b) it is unreasonable to expect the settled spouse to accompany his/her spouse on removal…

Notes

…

(ii)

In considering whether or not, under paragraph 5(b) above, it would be unreasonable for a settled spouse to accompany the subject of enforcement action on removal the onus rests with the settled spouse to make out a case with supporting evidence as to why it is unreasonable for him/her to live outside the United Kingdom. Factors which caseworkers should take into account, if they are made known to them, will include whether the United Kingdom settled spouse:

(a) has very strong and close family ties in the United Kingdom such as older children from a previous relationship that form part of the family unit; or

(b) has been settled and living in the United Kingdom for at least the preceding 10 years; or

(c) suffers from ill-health and medical evidence conclusively shows that his/her life would be significantly impaired or endangered if he/she were to accompany his/her spouse on removal.”

The appellant was born on 18 May 1963. She came here as a visitor on 7 November 1999, and was given leave to remain for six months. In about December 1999 she met LH at a party. He had been born on 6 June 1926. On 20 March 2000 they married. On 24 April 2000 the appellant applied under paragraph 284 of the Immigration Rules (“Rule 284”) for an extension of stay as the spouse of a person present and settled in the United Kingdom.

On 5 May 2000 the appellant’s Rule 284 application was returned by the Secretary of State on the ground that her application was invalid as the required documentation had not been enclosed. It became common ground that the fault lay in the fact that the appellant’s Jamaican passport had expired. The immigration judge was subsequently to find that the appellant’s 5 May 2000 application therefore came to an end.

On 28 May 2000 the appellant’s six months leave to remain expired, and she became an unlawful overstayer.

On 26 August 2000 the appellant renewed her Rule 284 application, with the aid of a new Jamaican passport. The immigration judge found that, because her earlier application had come to an end, this was a new application (the “second Rule 284 application”). On 6 October 2000, the Secretary of State requested some further documentation, which was supplied on 6 December 2000. On 23 May 2001, the Secretary of State responded to say that the appellant was an overstayer, that he was considering whether to enforce her removal, and requesting further information. On 12 July 2001, the appellant provided further information. 15 months later, on 25 October 2002, the appellant’s representatives chased the progress of her application. In the previous month, September 2002, LH had suffered a stroke and went into hospital, and from there to a care home. On 2 February 2003 he died. On 12 February there was a further letter from the appellant’s representatives chasing progress. That letter also stated that LH had died on 2 February, and requested that the Secretary of State should now consider granting the appellant indefinite leave to remain.

On 3 July 2003 the Secretary of State wrote to say that the appellant’s file had been mislaid, and requested further documentation. Finally, on 1 September 2003, there was a decision to remove the appellant as an illegal entrant, and she was served with a notice to a person liable to removal.

The Secretary of State’s reasons stated that the second Rule 284 application could not succeed because the rule required that the application could be made only by a person living here lawfully and, by the time of that application, the appellant was an unlawful overstayer. Nevertheless, because the right of appeal against removal could be exercised only from abroad, it was normal practice to consider such invalid applications on an exceptional basis under guidelines, commonly known as DP 3/96, for dealing with marriage applications from overstayers (“DP 3/96”). The appellant’s case did not, however, fall within those guidelines. Reasons given included factors such as that there were insufficient compassionate circumstances to justify a concession on the grounds of marriage; the appellant’s immigration status would always have been known to be precarious; it was not accepted that the appellant had in fact been living with her husband; he had died and there was no evidence of any other family of the appellant residing in the UK; and in the circumstances any interference with a private life established in the UK could be justified in the wider interest of the maintenance of an effective immigration policy.

The appellant appealed, and her appeal was allowed by immigration judge Mr Peter Clarke.

Mr Clarke’s decision, promulgated on 27 May 2005, was reasoned as follows. First, as a preliminary issue he considered whether the appellant retained any rights under Rule 284. For these purposes, he had to apply provisions under Rule 32 which directed how an application had to be made and went on to state that an application “made in any other way is not valid”. He decided that, since the appellant’s first Rule 284 application had not been made in the prescribed way, therefore it was not valid: and it followed that, as the second Rule 284 application had been made, as a fresh application, at a time when the appellant had become an overstayer, it fell outside the rule. As a result, her application had to be dealt with through the concessionary policy of DP 3/96.

As for that policy, he considered first, whether the marriage was “genuine and subsisting”, picking out those words at the beginning of para 5 of DP 3/96. He recorded evidence from the appellant that she and her husband had lived together in his one-bedroomed flat, and attached considerable weight to an invoice for the purchase of a double bed. He discounted the absence of any evidence from LH’s son as a factor militating “against the existence of a genuine marriage”. He therefore found that “this first requirement under DP 3/96 is satisfied”.

In reaching this decision, he did not overlook the fact that LH had died, but appears to have asked himself the question of whether the marriage was genuine and subsisting as at the date of the second application. I would observe (1) that the marriage was plainly not subsisting at the date of the Secretary of State’s decision; (2) that the Secretary State had not said whether or not he considered the marriage to have been a genuine one, but only that “it is not accepted that your client was in fact living with her spouse”, which I take to be a reference to the additional requirement at para 5 of DP 3/96 that “the couple have lived together in this country continuously since their marriage for at least 2 years”; and (3) that nevertheless, in the light of the immigration judge’s finding, it may be taken for present purposes that he was satisfied not only that the marriage was genuine but also that the appellant and her husband had been living together up to his death.

The immigration judge then considered what he described as the “second requirement” of DP 3/96, namely that “the marriage predated the service of an enforcement notice by at least two years”. That, he said, had been clearly established, for the marriage had predated the notice of 1 September 2003 by more than three years. That finding emphasises that he intended to find not only that the marriage was genuine, but also that the parties to it had lived together for the requisite period.

The immigration judge then applied himself to what he described as the “third requirement”, namely that contained in para 5(b) of DP 3/96, whether it was reasonable to expect the settled spouse to accompany the appellant on removal. He said that this requirement was extremely difficult to apply in the light of LH’s death: by which he meant that it was difficult to say whether or not it could have been shown that it would have been unreasonable for LH to have accompanied the appellant back to Jamaica if the question had arisen during his lifetime. The immigration judge nevertheless referred to the fact that LH had been in this country for 40 years, his son was also here, and it would have been difficult therefore for LH to uproot himself. He concluded: “On balance, I find it would have been unreasonable for him to return with his spouse to Jamaica.”

It would seem that the immigration judge adopted this approach, not because he was asking himself whether the appellant was within DP 3/96 at the time of the Secretary of State’s decision, but whether she would have been within it if the Secretary of State had handled the appellant’s application without delay. Thus he said:

“31.

I therefore find that if the Respondent had considered the matter immediately after the two year period had expired, on the balance of probabilities, he would have found the requirements of DP 3/96 were satisfied.”

The immigration judge then addressed himself to article 8 of the European Convention of Human Rights (the “Convention”) and the effect of the delay which had occurred, and, basing himself on Shala v. Secretary of State for the Home Department [2003] EWCA Civ 233 and M (Croatia) v. Secretary of State for the Home Department [2004] UKIAT 24, [2004] INLR 327, concluded that, absent the delay, the appellant would not have succeeded in showing a breach of article 8, but that once the respondent’s delay was taken into account, he had been satisfied that the appellant’s case was “exceptional” in a Shala sense.

In this connection he made findings to the effect that, whereas the appellant had family (six brothers, six sisters, parents, aunts and uncles) in Jamaica, there had been previous mention (but not by the appellant at the hearing) of only two cousins in the UK. There appeared to be little if any contact with LH’s son. She had been living in England with a friend, Mrs Bennett, who gave evidence that even though she was prepared to support her financially here, she would not do so in Jamaica. The judge commented: “She did not give a clear reason for this distinction”.

The judge expressed his final decision in these terms:

“39.

Whether or not the Respondent has considered the issue of Article 8, I am, in any event, bound to exercise my own discretion: Huang [2005] EWCA Civ 105. Both representatives agreed at the hearing that the factors in the Appellant’s case would have to “exceptional” for her to succeed under Article 8.

40.

I first consider the matter without reference to the Shala point; and I have found the exercise a difficult one. The Appellant has established a life in this country; though I was told nothing of how far she has established friendships or social contacts beyond Mrs Bennett. There was no reference at the hearing to any relatives in this country. I find that she might find it difficult to return to Jamaica; but there is no medical condition which would make her moving there impossible; and although the Appellant indicated that the clothing/garment making sector had diminished, I have no evidence as to the likelihood (or otherwise) of the Appellant obtaining some sort of employment. She clearly has relatives in Jamaica, although, on her account (which I do not accept), she has not been in contact with them.

41.

On balance, having considered the matters in paragraph 38 above [a reference to submissions on behalf of the Secretary of State based on R v Secretary of State for the Home Department ex parte Mahmood [2001] Imm AR 229] and ignoring the Shala point, I find that the Appellant has not satisfied me that her case is “exceptional”.

42.

However, the Shala point is crucial to this appeal…and the matters [of delay] referred to in paragraph 34 changes what I would otherwise have found to be a non-exceptional case into one that is exceptional.”

The immigration judge therefore dismissed the appeal under the Immigration Rules, but allowed it on human rights grounds.

The Secretary of State appealed against the immigration judge’s decision, and on 15 June 2005 a reconsideration was ordered. The AIT (Senior Immigration Judge Eshun presiding) promulgated its decision, in the Secretary of State’s favour, on 11 July 2005. Its decision was substituted for that of the immigration judge, and as a result the appellant’s appeal (from the Secretary of State’s decision) was dismissed.

The AIT’s reasons may be distilled as follows. (1) DP 3/96 could not have applied to the appellant’s appeal because her husband was no longer alive at the time of the Secretary of State’s decision (para 10). (2) In any event, there was no evidential basis for the immigration judge’s finding that it would have been unreasonable for LH to accompany the appellant on removal: “That finding was pure speculation” (para 10). (3) The immigration judge, while accepting a case based on article 8, had made no specific finding that that case was in terms of family life or private life or both (para 13). (4) The immigration judge’s finding that if the Secretary of State had dealt with the application between March 2002 and February 2003, DP 3/96 would have led to the grant of leave to remain was “an error of law”, because the appellant was an overstayer and her application “even if the case had been dealt with expeditiously at a period near August 2000” was bound to fail (para 12). The same point was repeated in the context of the Shala point and delay (at para 13), where the AIT said this:

“This was an error of law in the light of our finding that had the respondent considered the appellant’s application timeously, she would not have been granted any form of leave to remain because she was an overstayer by August 2000 when she made her application. The delay had not disadvantaged the appellant and could not be seen as an exceptional circumstance that took the appellant’s case out of the normal run of cases where a person with no leave to remain seeks leave on the basis of marriage.”

Although his oral submissions on behalf of the appellant went considerably wider, Mr Satvinder Juss came before the court on essentially two grounds of appeal only. The first, was that the AIT had erred in law in muddling up Rule 284 and DP 3/96. It was true that as an overstayer in August 2000 the appellant’s Rule 284 application was bound to fail, but nevertheless her potential rights under DP 3/96 had still to be considered and were not bound to fail. Therefore the immigration judge was entitled to consider what the position would have been if her application had been dealt with between March 2002 and February 2003. The second, was that the immigration judge’s finding that in the exceptional situation caused by the Secretary of State’s delay the appellant’s article 8 rights had been breached and not justified was a finding of fact that the AIT had not been entitled to override.

In addition to those grounds, however, Mr Juss made these further submissions: (1) that the appellant had only made one Rule 284 application which went back to her original application on 24 April 2000, when she was still lawfully in this country, and therefore she was entitled as of right under Rule 284 to have her leave extended on the ground of her marriage; (2) that if the appellant’s application had been dealt with in time, even if by way of rejection, she could have returned to Jamaica to make an out-of-country application from there for leave to enter, for a probationary period, on the basis of her subsisting marriage (see Rule 282); (3) that if she had been able to extend or renew her leave to enter, then, by reason of a further “bereaved spouse” policy, she would have been able to obtain indefinite leave to remain.

I can deal briefly with these additional submissions. It is conclusive that no ground of appeal exists in relation to any of them, nor did they figure as part of the reconsideration appeal to the AIT. In any event, as to (1), it was common ground, as late as Mr Juss’s skeleton argument of 31 December 2006 and the opening of Mr Juss’s oral submissions, that the appellant “made two applications to remain in the UK on the basis of her marriage…On 26 August 2000, the claimant made a second application…but by this time…she…had become an Overstayer.” As to (2), it is uncertain and speculative what the appellant would have done in the face of a rejection. In fact, she never did return to Jamaica during the subsistence of the marriage to regularise her position; nor is it clear what the legitimate attitude of the Secretary of State would have been to such an out-of-country application in the circumstances. As to (3), the then contemporaneous policy was not before the court, had never been considered by the immigration judge or the AIT, and its effect therefore remained uncertain and speculative. The appellant would not have come within the previous version of Rule 287(b), which required that an applicant bereaved spouse needed to have been admitted to the UK or given an extension of stay for a period of 12 months as the spouse of a person present and settled in the UK. It is a matter of complete speculation as to whether she could have brought herself anew within that rule. I need say no more about these additional submissions.

As to the two grounds of appeal properly before the court, on behalf of the Secretary of State Ms Jenni Richards submitted that, in the absence of a valid application under Rule 284, the appellant lacked any substantive right: at best, the appellant had only the potential of the exercise in her favour of a discretionary policy under DP 3/96. However, with the death of her husband, the appellant lost even the potentiality of bringing herself within that policy, since it only applied to subsisting marriages. Only an unjustified breach of article 8 could therefore avail the appellant. That depended on both the proper finding of some interference in family or private life and on the consequences of a case of delay so bad and exceptional as to destroy any justification. On both those polar elements of the balance between private life and public interest the AIT had been right to say that the immigration judge had erred in law. He had made no proper finding of any interference in private life (there was plainly no interference at all in family life), and there was nothing to show that a timeous dealing with the appellant’s application would have led to any extension of her leave to remain. This was because the AIT was right to say that a timeous dealing with the application would have seen it rejected, since DP 3/96 was only engaged after the marriage had been subsisting for two years. In any event, any finding of an unjustified breach of article 8 was and would be irrational.

The first issue is whether Mr Juss is right to submit that the AIT muddled up Rule 284 and DP 3/96 in saying that the immigration judge had committed an error of law because he failed to appreciate that the appellant’s application would have been rejected as that of an overstayer, if it had been considered timeously.

It is possible that this ground of appeal is correct, and at one time I confess that I thought it was: but on further consideration I have concluded that this would be an unjust reading of what the AIT was saying. It is after all unlikely that, on the facts of this case, which raised an issue under DP 3/96 for the very reason that the appellant was an overstayer at the time of her second application under Rule 284, the AIT should have confused the position under the Rule and the marriage policy designed to deal with the position where the Rule could not be invoked.

It needs to be borne in mind that the reasoning both of the immigration judge and the AIT is somewhat elliptical. DP 3/96 is a policy in favour of an applicant who is party to a subsisting marriage with a settled spouse. Such a policy could not apply to the appellant by the time the Secretary of State came to deal with her application, because her husband had died.

It seems to me that that this a priori part of the reasoning has been omitted in both tribunal decisions. They both proceed from the unstated premise that the appellant fell outside DP 3/96 at the critical time of the Secretary of State’s decision, and on the basis that they were asked to consider (the so-called Shala point) the significance of the fact that, if the Secretary of State had dealt with the application without the delay which had occurred, the appellant would have found herself, while her husband was still alive, within DP 3/96. The immigration judge found that she would have been within the policy, and would have satisfied the Secretary of State that she was within the policy, if the Secretary of State had considered the matter “immediately after the two year period had expired”. It is this finding of the immigration judge which the AIT is dealing with as an error of law. The AIT correctly points out that the effect of this finding is that the Secretary of State is assumed to be dealing with the application during the (slightly over) 10 months window between 20 March 2002, when the appellant had been married for two years, and 2 February 2003, when LH died. But, and this I think is the AIT’s point, who is to say that, without delay, the Secretary of State would have dealt with the application during that window? The AIT therefore responds with an alternative formulation, which is to ask what would have happened if the application had been dealt with “timeously” (the word used in both its para 12 and again in its para 13, where the issue is addressed). On that basis, and here I think there is further elliptical expression by the AIT, the appellant would not have been married for the requisite two years. Therefore, the inevitable answer of the Secretary of State would have been to reject the application, which it must be recalled was an application under Rule 284, as that of an overstayer. That is why the AIT says: “This was an error of law in the light of our finding that had the respondent considered the appellant’s application timeously, she would not have been granted any form of leave to remain because she was an overstayer by August 2000 when she made her application”. As far as it goes, that statement is correct, if elliptical in its reasoning.

The alternative is to consider that the AIT is saying that the immigration judge was wrong to find that the Secretary of State could have applied DP 3/96 in favour of the appellant after her marriage was subsisting for two years, solely because the appellant was an overstayer. That is not only unlikely, for the reason given above, but makes no sense of the contrast between the immigration judge’s confinement of his reasoning to the period after the marriage has been in existence for two years, and the AIT’s contrast of “timeously”.

I would also observe that, as debated before the court, the immigration judge would have in any event been wrong to have reasoned that the Secretary of State would have found the requirements of DP 3/96 satisfied if he had considered the application immediately after the two year period had expired. We know that the Secretary of State found that the appellant and LH had not been living together. The immigration judge, I accept, found that they had, and therefore was entitled to say that, at the time after the two year period of which he was speaking had expired, the Secretary of State should have found that the appellant was within the requirements of the policy. But he was not, in my judgment, entitled to say that the Secretary of State would have found the requirements of the policy to have been met. He plainly had doubts about the genuineness of the marriage.

I will, however, assume that I am wrong so far. That would only mean that the appellant had succeeded in showing a causative link between a delay by the Secretary of State of some 10 months between March 2002 and February 2003 and the failure, only by reason of the unfortunate death of LH, on the part of the appellant to bring herself within DP 3/96. But what follows from that? That brings the appellant to her second ground of appeal, which was that the AIT was wrong to have overridden the immigration judge’s finding of fact as to the unjustified breach of article 8. Without making good that ground as well, the appeal cannot succeed.

In my judgment, however, the AIT was entitled to say that the immigration judge had failed, by reason of an error of law, properly to establish a finding that the appellant had shown an unjustified breach of article 8. This remains the position even if the “error of law” expressly stated by the AIT at this point of its decision is again assumed to be wrongly based on a confusion between Rule 284 and DP 3/96. I would conclude that the immigration judge erred in law in finding or assuming an unjustified breach of article 8 when (i) the appellant’s case under article 8(1) was weak, and (ii) her case under article 8(2), if she gets that far, that delay by the Secretary of State makes all the difference to the Secretary of State’s justification, was similarly weak. In such circumstances the immigration judge’s conclusion that the delay made a critical difference is irrational. I accept that submission, and would reason the matter as follows.

First, the question arises as to what interference at all in the appellant’s family or private life can be said to amount to a prima facie breach of article 8(1). The judge made no specific finding as to this, but his ultimate decision of course presupposes a material and ultimately unjustified interference. I accept Ms Richards’ submission that there is no question at all of any interference in family life: see the immigration judge’s para 40. So the next question is, what breach of private life the judge had in mind? Of course, the appellant had been in this country since November 1999, but she had been an overstayer since May 2000 and always knew, or was in a position to know, that her status here was precarious, as she was reminded by the Secretary of State’s letter of 23 May 2001 (see para 6 above). She had no family here, and the only friend here of whom there was any evidence was Mrs Bennett. The appellant had no employment here. She had no medical need to stay here.

In such circumstances, it is necessary to remind oneself, as the immigration judge apparently did not, how relatively high the bar is set in this context in terms of a finding of an unjustified interference in private life, for all that the concept of private life is a broad based continuum, described in Lester & Pannick, Human Rights Law and Practice, 2^nd ed, 2004, at para 4.8.2 as “starting from an inviolable core of personal autonomy and radiating out…into personal and social friendships”. Thus many of the essential notions of private life, such as bodily integrity, personal identity, sexual identity, and privacy, are not in focus in this context. On the contrary, as Lord Bingham of Cornhill said in Huang v. Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 WLR 581 at para 18 –

“The Strasbourg court has repeatedly recognised the general right of states to control the entry and residence of non-nationals, and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where they prefer to live.”

Similarly, in R (Razgar) v. Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, Lord Bingham, in setting out five questions for an adjudicator or a reviewing court to ask when reliance is placed in this context on article 8, said (at para 17) that the second of them was –

“(2)

If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?”

See also Lord Bingham’s comment on question (2) at para 18.

In the context of family life, Lord Bingham in Huang put the ultimate issue for an appellate immigration authority in this way (at para 20):

“In an article 8 case where this question [the issue of proportionality] 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 immigration judge, who was making his decision in the interval between the decision of this court in Huang [2005] EWCA Civ 105, [2006] QB 1 (to which he referred at para 39) and the outcome in the House of Lords, cannot be blamed, given the agreement of the representatives before him, for posing to himself the test of whether the appellant had satisfied him that her case was “exceptional” (at paras 39/42). However, this way of looking at the matter appears to have allowed him to remove his eyes from the stages of inquiry and the ultimate issue which the House of Lords has now restated. Thus, he has certainly not carried out that careful assessment of which Lord Bingham spoke in Razgar, when he said that the judgment on proportionality –

“must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage” (see para 20).

That passage was cited again by Lord Bingham in Huang at para 19.

In Razgar Lord Bingham also said (at 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 on a case by case basis.”

In Huang (at para 20), Lord Bingham emphasised that in that remark in Razgar 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.”

These considerations suggest very strongly that the immigration judge was somehow in error, even beyond that of expressing the article 8 issue purely in terms of whether or not the appellant’s case was “exceptional”, in the formulation to himself of that issue. He approached it in two stages. First, he did so “without reference to the Shala point” and considered that to be a “difficult” exercise, but one on which the appellant “on balance” failed to show that her case was “exceptional”. However, the only reason in favour of the appellant which he mentioned was that she had “established a life in this country” and a friendship with Mrs Bennett (at paras 40/41, quoted under para 18 hereof above). With respect to the immigration judge, I wonder where the difficulty could possibly have been. On the hypothesis that the Secretary of State had decided, without any delay whatsoever, that the appellant did not come within DP 3/96 in circumstances where her husband had died and the marriage was therefore not subsisting, there could be no question but that any interference with private life was justified by the maintenance of a proper system of immigration control. But be that as it may, when the immigration judge came immediately to the second stage, he gave no additional reasons for concluding that the Shala point made a critical difference as he said it did (“the Shala point is crucial to this appeal”, para 42), albeit that was perhaps understandable in his own terms if he was already close to the line before he reached this second stage.

In my judgment, however, the delay question could not, on the facts of this case, have made a crucial difference. Its effect is entirely speculative. Whether or not I am right to read the reasoning of the AIT on the first ground of appeal in the way I have put it above, the fact remains that the appellant could not have succeeded under DP 3/96 if her Rule 284 application had been considered within two years of her marriage to her husband on 20 March 2003. If, therefore, her application had been considered timeously after it had been made in August 2000, she would have failed, on the basis that her Rule 284 application was that of an overstayer and therefore could not succeed, and she would not yet have come within DP 3/96. She would have had to leave, as she had in truth been obliged to do ever since 8 May 2000 at the end of her six months’ leave to remain. She could have returned to Jamaica to make an out-of-country application, but what she would have done is uncertain. If she was not deported, she would probably have remained here, as she has done. In the circumstances, the Secretary of State’s delay in dealing with her application up to 20 March 2002 is, so far as she is concerned, benign: at any rate she has shown no causatively relevant prejudicial consequences. In the meantime she remained with her husband.

From 20 March 2002 there is further delay, but its effect is again speculative. It appears unlikely that a decision (at any time) would have been in the appellant’s favour, since the Secretary of State clearly had doubts (even if later found to have been unjustified) about whether the marriage was genuine, or at any rate whether the appellant and her husband were living with one another. In the meantime, her husband unfortunately died, so that the appellant was, in part perhaps through the inefficiency of the Secretary of State, able to spend the whole of her marriage together with her husband in this country. In the circumstances, it is difficult to identify any particular period of delay as causally relevant or as producing any substantial effects. At most, there was a window of some 10 months when DP 3/96 could or even should have been applied in her favour, but probably would not have been.

It follows that this case is quite unlike the cases of other claimants considered in the jurisprudence, some of which were before the immigration judge. Thus in Shala there was an established interference with family life (for the claimant had been living with his partner – subsequently his wife – and her two sons) and it had taken 4 years to process his asylum claim, during which “he had formed an enduring relationship” (at para 9). Moreover, unlike the appellant, the claimant “did have a legitimate claim to enter at the time when, on any reasonable basis, his claim should have been determined” (at para 16). In Akaeke v. Secretary of State for the Home Department [2005] EWCA Civ 947, the claimant had married in February 1996, and applied for leave to remain on the basis of that marriage. She should have been required to return to Nigeria to make an out-of country application, but there had been delay of such length that the IAT had called it a “public disgrace”. In particular, it was accepted by the Secretary of State that there was no issue that the claimant would in due course be entitled to live lawfully with her husband in this country, and the only bone of contention was whether she would have to make her application to do so out-of-country, for the sake of the orderly administration of immigration procedure and the avoidance of queue-jumping (at paras 3/4 and 31/32). None of that applies to this case, for the Secretary of State does not accept that the appellant would be entitled to leave to remain in this country, and the marriage on which she relies has sadly come to an end. I reject Mr Juss’s submission that Shala and Akaeke are properly similar cases which throw light on the present appeal.

Mr Juss also relied on HB (Ethiopia) and others v. Secretary of State for the Home Department [2006] EWCA Civ 1713, where Buxton LJ refined from previous authorities nine conclusions as being binding on this court in relation to the issue of delay on the part of the Secretary of State in dealing with applications. In particular Mr Juss relied on the following three conclusions (at para 24):

“iii)

Where delay is relied on as a reason for not applying immigration policy, a distinction must be made between persons who have some potential right under immigration policy to be in this country (for instance, under marriage policy, as in Shala and Akaeke); and persons who have no such right.

iv)

In the former case, where it is sought to apply burdensome procedural rules to the consideration of the applicant’s case, it may be inequitable in extreme cases, of national disgrace or of the system having broken down [Akaeke], to enforce those procedural rules [Shala; Akaeke]…

ix)

Decisions on proportionality by tribunals should not, in the absence of errors of principle, be interfered with by an appellate court [Akaeke].”

I will assume in favour of the appellant without deciding: (1) that it would be right to describe her as having some “potential right” under immigration policy in respect of her second Rule 284 application, even though that application was incompetent because she was an overstayer, and even though she could not bring herself within DP 3/96 until she had been living together with her husband for two years and cannot do so now; and (2) that it remains the case after Huang in the House of Lords that the AIT on reconsideration of the immigration judge’s decision could only look again at the article 8 point if there had been an error of law by the immigration judge. (I have already said that I do not regard the circumstances of Shala and Akaeke as throwing any particular light on this case.) Despite these assumptions, it seems to me that the immigration judge’s article 8 decisions were irrational and unsupported by reasons, and cannot stand as having been open to him at law. He does not articulate the materiality of the interference with private life, or show why any such interference has consequences of such seriousness as potentially to engage the operation of article 8; he does not conduct any exercise of addressing proportionality; he asks himself merely whether the appellant’s case is “exceptional”, which is not the test; he concludes that the case was “exceptional” merely on the ground of delay and merely on the basis that if the Secretary of State had dealt with the application between March 2002 and February 2003 he would have allowed it (when it appears clear that he would not); he never addressed the question of what would have happened if the application had been dealt with timeously; and he nowhere appears to have reminded himself (other than in a glancing reference to Mahmood in his para 38) of the powerful considerations in favour of the justification to be found in the lawful operation of immigration policy.

On this basis, Mr Juss submitted that the case should nevertheless be remitted to the AIT for further reconsideration. I do not agree. It seems to me that on these facts only one answer is possible, which is that this is not one of that small number of cases in which immigration policy has failed to justify an interference with private life, assuming any to have occurred. I would therefore dismiss the appeal.

I agree that the appeal should be dismissed and add words of my own only to highlight what I regard as the important lesson to be drawn from Rix LJ’s judgment.

The important principle, identified by Buxton LJ in HB(Ethiopia) and Others, and applied by Rix LJ in the instant appeal, is that delay creates no substantive right . It may afford a reason for not applying immigration policy to the disadvantage of an applicant who has a potential right to remain or for refusing to allow the Secretary of State to impose a burdensome procedural rule on one who would, but for procedure, be entitled to assert that right.

In an Article 8 case, delay will be a relevant factor in the balancing exercise which must be undertaken under Article 8(2). But the protection afforded by Article 8 can only be invoked in cases where family life or the ties of private life are of sufficient strength. The weaker the tie the less likely it is that the prejudice caused by immigration control will be of sufficient gravity to constitute a breach. Delay cannot be relied upon to make good a deficiency in the strength of the private life it is sought to protect.

The Immigration Judge’s decision was inconsistent with that principle. He failed to identify any sufficient ties in CH’s private life; he permitted CH to deploy delay as establishing a free-standing right to protection under Article 8. Whilst, possibly in disagreement with Rix LJ, the AIT’s decision at paragraph 13 seems to me not susceptible to even the most benign interpretation, in my view it reached the correct conclusion. At the time of the Secretary of State’s decision, CH’s inability to demonstrate family life or other ties of sufficient strength in her private life was fatal to her claim.

For the reasons given by Rix LJ, I [also] agree that the appeal should be dismissed.