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

The appellant is a young Ethiopian, born in October 1984, who has sought asylum and human rights protection in this country. He was born and brought up in Ethiopa, his father being a national of that country but his mother being (or having been – he does not know what has happened to her) Eritrean. He was sent here on his own at the age of 14 by a kinsman of his father after his mother was abducted from their home in Addis Ababa by soldiers and he himself was taken to a gaol from which, however, he was able to escape. It took the Home Office four years from his arrival and application for asylum in August 1999 to reach a decision to refuse the application and remove him - not to Ethiopia but to Eritrea, which is neither his country of origin nor a country in which he has ever lived. For reasons we will come to, the present issue is not whether he is entitled to asylum but whether, having no such entitlement, he can resist removal by relying on art. 8 of the European Convention on Human Rights.

His appeal to an adjudicator, Mr J.E.Camp, succeeded in January 2004 both under the refugee convention and under arts.3 and 8 of the Human Rights Convention. Under the transitional régime, the AIT (Mr C.P.Mather and Ms C.Jarvis) held the adjudicator’s decision to have been vitiated by two errors of law: deficiency of reasoning about risk, and failure to adopt a test of exceptionality in applying ECHR art.8. In spite of a finding that the adjudicator’s art. 8 decision was perverse, which should logically have meant that only a contrary finding was possible, the AIT sent the entire case, apart from the favourable credibility findings, for a second-stage reconsideration. The reconsideration, conducted by DIJ Shaerf and IJ Traynor, resulted in a determination, promulgated in June 2006, that the appellant was not entitled to protection under either Convention.

The AIT refused permission to appeal to this court, but this court in October 2006 granted it. Carnwath LJ considered it realistically arguable that the adjudicator had not erred in either respect, so that no reconsideration should have been ordered. He also considered that the court might give guidance on what constitutes a failure of reasoning and on the issue of exceptionality in relation to art.8. The grounds of appeal go on to contend that the AIT made an error of its own by inverting the burden of proof in relation to the possibility of being picked up and ill-treated by the Eritrean authorities on return.

At the AIT stage the law was still taken to be what was set out by this court in Huang [2005] EWCA Civ 105, suggesting in the light of the decision of the House of Lords in Razgar [2004] UKHL 11 a need for exceptional circumstances in order to bring a case within the ambit of art.8. But in March 2007 the House of Lords made it clear that there was no test of exceptionality in the application of art.8. In the light of this the Home Office proposed, and the appellant agreed, that this case should be remitted without more to the AIT for reconsideration. But Carnwath and Lawrence Collins LJJ, on the date originally set for hearing the appeal, declined to take this course. The entirety of the appeal accordingly now comes before a full court.

The question whether, in the light of the law as it now stands, the adjudicator made any error entitling the AIT to reconsider the case needs to be dealt with first and separately. If there was no error, the appeal has to succeed. If there was an error on the adjudicator’s part, it is common ground that the AIT’s re-determination cannot stand in the light of the House of Lords’ decision in Huang, so that the case must be remitted to them. In that event the question arises whether the AIT also erred by inverting the burden of proof on a material issue.

Jane Collier, for the Home Secretary, contends that, however the AIT may have expressed it, the adjudicator’s decision was in law untenable for two reasons. First, rather than decide the case on its own facts and merits, he adopted the fact-findings and conclusion of another tribunal in another case and applied them to the appellant’s case. Secondly, although approaching article 8 on what can now be seen to have been a sound legal basis, he introduced into the assessment of proportionality two factually incorrect but potentially influential elements: a finding that the appellant “does not speak the language” of Eritrea, and a finding that “he would face a risk of ill-treatment and torture there”.

Manjit Gill QC for the appellant submits that the adjudicator’s findings in favour of both the asylum and the art. 3 claims are sustainable; that the finding about the language was perfectly sound on the exiguous evidence before the adjudicator; and that to the extent that the finding about ill-treatment and torture was unfounded, it is severable and does not vitiate the art.8 decision.

The adjudicator accepted the appellant as a truthful witness. He went on: “Whether the appellant is Ethiopian or Eritrean, I find that he would face a real risk of persecution in Eritrea, where it is proposed to remove him.” By way of explanation he then adopted, “with appropriate changes to suit the circumstances”, three paragraphs of an earlier tribunal decision, Gemany [2002] UKIAT 07099, which also concerned the return of a non-national to Eritrea. The paragraphs included these passages:

The first thing to be noted about the extract from Gemany is that it does not contain any finding of prospective persecution. Secondly, it does not explain what public services would be denied to the appellant, so that it is not apparent why art. 3 would be engaged. Mr Gill submits that it can be deduced from other parts of the IAT determination in Gemany that access to employment, housing and other basic needs depends on possession of an identity card, which a non-national will be unable to obtain. This may be so, but there is no sign of it either in the extracts from Gemany quoted and adopted by the adjudicator or in the adjudicator’s own findings.

In our judgment the bare adoption, at least in these circumstances, of fact findings made in another case cannot supply the elements of case-specific fact-finding which were essential to a properly reasoned decision on the art. 3 claim. Beyond this, the material set out or adopted by the adjudicator is not capable of sustaining either his finding that the treatment the appellant might face in Eritrea would amount to persecution, or that such persecution would be on the ground of his (mixed) ethnicity. The favourable asylum finding was therefore also insufficiently grounded.

When, therefore, one turns to the remaining issue under art. 8, there is an immediate question about the final element in the adjudicator’s finding on proportionality: “He would face a risk of ill-treatment and torture in Eritrea”. The full passage reads:

We agree with Mr Gill that Ms Collier’s attack on the finding that the appellant “does not speak the language” goes nowhere. The Home Office was unrepresented at the hearing, and there is nothing to suggest that the evidence later admitted by the AIT about the languages spoken in Eritrea was before the adjudicator. The appellant’s first witness statement said that he spoke only Amharic and English. There is no reason to think the adjudicator mistook his case in relation to language or had any evidence to controvert it. He was entitled to take the appellant’s evidence on this point at face value.

But the finding that the appellant, if returned to Eritrea, would face the risk of ill-treatment and torture cannot be so readily defended. Mr Gill accepts that torture was a finding too far; but so, in our judgment, was ill-treatment, given the want – which we have dealt with above – of a proper evidential base for it. Can the entire finding then be severed? Only, in our view, if we can be satisfied that even without it the adjudicator’s decision would have been the same. But it is impossible to be so satisfied. For reasons to which we are about to turn, the adjudicator is to be commended for adopting the legally correct approach to article 8, not treating exceptionality as a precondition but directing himself in accordance with the Strasbourg case-law and examining in a structured manner the elements which determine proportionality. But by introducing into what was a labile balance a real risk of torture or ill-treatment unsupported by evidence or by properly made findings, he has made it impossible to know how he would have decided the issue in its absence. Ms Collier, by accepting that there must be a remission, accepts that the decision would not necessarily have gone against the appellant; but Mr Gill for his part has in our judgment to accept that it would not necessarily have gone in his favour.

The unwillingness of this court to accede to the proposed remission by consent was explained by Carnwath LJ in these terms:

…. 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:

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.

While it would be open to us, even so, to remit the case without more to the AIT, Ms Collier has summarised for us in a supplementary note the already substantial body of appellate decisions handed down in the three months since their Lordships’ opinion in Huang was delivered. It is clear from the submission she builds upon this material, and from Mr Gill’s response to it, that there is continuing controversy about how the AIT should now deal with art. 8 claims. It seems to us in this situation that this court ought to set out, both for the purposes of the remitted hearing and for wider purposes, what it takes to be the applicable law.

The Human Rights Act 1998, s.6, makes it unlawful for a public authority, which includes both the Home Secretary and the AIT, to act in a way which is incompatible with a Convention right. One group of Convention rights, as defined by s.1, is contained in ECHR article 8:

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

It is useful to have in mind, by way of contrast, the provisions of art. 3:

In R (Razgar) v Home Secretary [2004] UKHL 27 Lord Bingham, giving the leading speech, turned from the related but distinct questions canvassed in the parallel case of R (Ullah) v Special Adjudicator [2004] UKHL 26 in relation to art. 3 to the question: “Can the rights protected by article 8 be engaged by the foreseeable consequences for health and welfare of removal … where such removal does not violate article 3?” The House’s answer was that they could be. The problem which is now before us arises from the conditionality of the answer.

Lord Bingham’s speech, which had the assent of Lord Steyn and Lord Carswell, and in large part too of Lord Walker and Baroness Hale notwithstanding their dissent as to the outcome, proposed at §17 the following questions as those which were likely to have to be answered by an adjudicator on an art. 8 appeal:

Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?

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

If so, is such interference in accordance with the law?

If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

If so, is such interference proportionate to the legitimate public end sought to be achieved?

Proposition (5) was elaborated by Lord Bingham as follows:

It was the final sentence of this passage which led the Court of Appeal in Huang v Home Secretary [2005] EWCA Civ 105, per Laws LJ, to ask at §38: “Where does the approach taken by their Lordships’ House in Razgar leave the position?” and to answer at §59:

While, therefore, exceptionality featured in Razgar only as a probable consequence of the evaluation of proportionality under art. 8(2), and while this court in Huang sought to do no more than paraphrase Razgar, Laws LJ’s formulation, and subsequent decisions of this court in cases such as Krasniqi [2006] EWCA Civ 391, led decision-makers to treat exceptionality as a threshold requirement. It became apparent, too, that some were linking this to Lord Bingham’s second proposition - that the interference with the art 8 right must have “consequences of such gravity as potentially to engage the operation of article 8”.

The decision of the AIT in the present case affords a sufficient illustration of what has consequently been going wrong. They wrote:

When Huang reached their Lordships’ House, it was resolved in a single opinion delivered on behalf of the Appellate Committee by Lord Bingham. Their Lordships did not criticise this court’s characterisation of the key issue as revolving around proportionality and therefore lying under art. 8(2). In §19 they considered the proper approach to the question of proportionality, and then in §20 said this:

The effect of their Lordships’ decision (and, if we may say so, the intended effect of this court’s decision) in Huang has thus not been to introduce a new interpretation of art.8 but to clarify and reiterate a well understood one. While its practical effect is likely to be that removal is only exceptionally found to be disproportionate, it sets no formal test of exceptionality and raises no hurdles beyond those contained in the article itself.

We turn to Lord Bingham’s second proposition in Razgar, which he explained in this way at §18:

The Costello-Roberts case concerned the use of corporal punishment by the headmaster of a private school on a small boy against his and his parents’ wishes. In dismissing his article 8 claim the Court said at §36:

It follows, in our judgment, that while an interference with private or family life must be real if it is to engage art. 8(1), the threshold of engagement (the “minimum level”) is not a specially high one. Once the article is engaged, the focus moves, as Lord Bingham’s remaining questions indicate, to the process of justification under art. 8(2). It is this which, in all cases which engage article 8(1), will determine whether there has been a breach of the article.

Of the cases which have been decided in this court since their Lordships’ decision in Huang, the great majority have been remitted by consent to the AIT because a test of exceptionality has been mistakenly adopted by that tribunal. But in MT (Zimbabwe) [2007] EWCA Civ 455, rather than remit the case, this court by consent reconsidered the article 8 decision which had been wrongly approached by the AIT. The judgment of Buxton LJ, Waller and Lloyd LJJ concurring, illustrates the approach to be taken in the light of Huang:

Buxton LJ went on to adopt the following passage from the judgment of Carnwath LJ in Mukarkar v Home Secretary [2006] EWCA Civ 1045:

We respectfully adopt and follow this reasoning. But because it did not prevent counsel for the Home Secretary in MT (Zimbabwe) or in the instant case from reverting to a test of exceptionality as a surrogate for the art.8 decision, we think it necessary to reiterate that there is no such legal test. The fact that in the great majority of cases the demands of immigration control are likely to make removal proportionate and so compatible with art.8 is a consequence, not a precondition, of the statutory exercise. No doubt in this sense successful art.8 claims will be the exception rather than the rule; but to treat exceptionality as the yardstick of success is to confuse effect with cause.

In KR (Iraq) [2007] EWCA Civ 514 this court (Auld, Sedley and Smith LJJ) spelt this out a little further. Auld LJ said:

In SSHD v Huang [2007] UKHL 11 the Appellate Committee have made clear that the notion is not a threshold or criterion for the engagement of Article 8(1) in asylum or extradition cases; it is an “expectation” that it will be exceptional for recourse to Article 8, read as a whole, to overcome the otherwise lawful removal of a claimant from the jurisdiction. It is plain from the Committee’s reasoning that such expectation turns on the relative weight of Article 8(1) interference against that of relevant factors that go to justification under Article 8(2), including, in particular, the public interest in maintaining an effective system of immigration control.

Such an approach, and [the] explanation of it, is, with respect, entirely logical, given the structure of Article 8 in, and the relationship of, its two parts. First, Article 8(1) describes, albeit loosely, the right protected, the right to respect for … private and family life …”. Why the threshold for interference with such a sensitive right should rise to exceptional heights simply because it is engendered by a threat of removal of the claimant from the jurisdiction as distinct from a less draconian interference – but interference nonetheless - solely within the jurisdiction, it is hard to see. On any set of facts Article 8 is engaged or it is not.

Exceptionality, to the extent that it survives as an expectation, comes in at the Article 8(2) stage in drawing the balance between, on the one hand the severity in the nature and consequences of the facts constituting the Article 8(1) interference, and on the other the importance in the circumstances of the countervailing Article 8(2) factors present going to justification. If the interference so exceeds the Article 8(1) threshold as, say, to justify the description “flagrant and fundamental breach”, it is more likely - depending, of course, always on the circumstances - to prevail over the Article 8(2) justification in play.

In the light of what we have said, reliance ought not to be placed by practitioners on the reasoning in PO (Nigeria) [2007] EWCA Civ 438, a reportable decision of this court refusing permission to appeal following their Lordships’ decision in Huang on the ground that there was “nothing so exceptional about the facts of [the] case” as to make success possible.

It is also necessary to say something about proportionality. In London Regional Transport v Mayor of London [2001] EWCA Civ 1491, §57, Sedley LJ said:

In Huang the House of Lords made reference to this wide body of jurisprudence, citing (from De Freitas) the following series of questions as material to the determination of proportionality:

the legislative objective is sufficiently important to justify limiting a fundamental right;

the measures designed to meet the legislative objective are rationally connected to it; and

the means used to impair the right are no more than is necessary to accomplish the objective;

The jurisprudence of the Strasbourg court, which is parallel but not cognate with the Commonwealth jurisprudence, has characterised ‘necessary’ in arts. 8 to 11 as corresponding to a pressing social need: Handyside v United Kingdom (1979-80) 1 EHRR 737, §48. Starmer, European Human Rights Law, §4.42, singles out, among the factors adopted in the Court’s case-law on whether the state’s response to such a need is proportionate, whether ‘relevant and sufficient’ reasons have been advanced in support of the measure in question, whether there is a less restrictive alternative, and whether the measure destroys the very essence of the Convention right in question.

What matters is not that courts and tribunals should adopt a set formula for determining proportionality, but that they should have proper and visible regard to relevant principles in making a structured decision about it case by case. It is not sufficient, as still happens, for the Tribunal simply to characterise something as proportionate or disproportionate: to do so may well be a failure of reasoning amounting to an error of law. But there will be many cases in which it can properly be said by an appellate tribunal that on no view of the facts could removal be disproportionate. In such cases (of which PO (Nigeria) ante is an instance), even if the AIT has applied the wrong test, permission to appeal to this court is unlikely to be granted.

In the present case the adjudicator, in our judgment, approached art 8 in a way which can now be seen to have been entirely correct: see paragraph 11 above. This is to be contrasted with the decision of the AIT to the contrary:

In part this somewhat perfunctory approach is explicable by the fact that counsel and the tribunal had both had to address the issues in the light of what was then taken to be the law, with the result that exceptionality was being treated as a surrogate for art. 8 itself. The AIT’s consideration of proportionality lacks the structured consideration demonstrated in the adjudicator’s determination. But that is not what matters here, for we are not choosing between them. Our only concern is whether the adjudicator made a lawful decision.

The private life established in this country by a lone 14-year old whose asylum claim is not processed for four years, who has no known family in Eritrea and cannot speak the language, and who has acquired an education, psychological support and a social circle here, not only brings him very plainly within art. 8(1) but raises an obvious question about the necessity and proportionality of removing him notwithstanding the legality and proper objects of immigration control. For the reasons given earlier in this judgment, however, we consider that the adjudicator’s assessment of the proportionality of removal (leaving aside for the moment the question: removal to where?) was vitiated by the introduction of a potentially influential element unsupported by properly made findings of fact. To this extent the AIT was right to find an error of law in the adjudicator’s determination of proportionality, but it is conceded that their own substituted decision was vitiated by a larger, and at the time widespread, error of law.

The appeal must accordingly go back to the AIT to determine the art. 8 claim according to law.

Mr Gill has asked us in this event to determine whether the AIT has inverted the burden of proof in relation to the treatment of returnees by the Eritrean authorities by following its decision in KA (draft-related risk categories updated) (Eritrea) CG [2005] UKIAT 00165. This issue has been only sketchily argued before us, and since the matter is to be redetermined we think it better that it be considered along with the other issues by the AIT. The relationship between the comprehensive appraisal of the applicant’s past, present and prospective situation called for in Karanakaran [2000] 3 All ER 449 and the specificity of risks relevant to refugee and humanitarian protection is a difficult one requiring a certain amount of intellectual rigour. A probability that x will not happen does not logically exclude a risk that it will; but a point may come at which the probability that it will not happen is so high as to make the risk unreal. Beyond this, too much depends on the facts which are found to make any prior ruling useful.

There remains the mystery of why the Home Office proposes to send the appellant, an Ethiopian, to Eritrea, where he has never lived and when there is nothing to indicate that Eritrea will accept him. Counsel for the Home Secretary had no instructions about this and undertook at the conclusion of the hearing to find out and inform the court. A week later the Treasury Solicitor wrote to say that the Secretary of State “is currently looking into this and will provide an answer to the Court as soon as is possible”. By a second letter, which helpfully enclosed the Home Office’s operational guidance notes on Eritrea, the court was told:

In the circumstances, it may be that the order of this court for remission to the AIT will be overtaken by a fresh decision in the Home Office.