KG (India) v Secretary of State for the Home Department

This is a renewed application for permission to appeal to this court by Mr KG, who is a citizen of the Republic of India, who wants to appeal against a removal notice served on him in December 2005. The only ground upon which he complains is that to remove him from this country would be a breach of his rights under article 8 of the convention. Mr KG was born in February 1961 and joined what is described as the Merchant Navy (I presume the Indian Merchant Navy) in 1988. He may or may not have been in this country from time to time in pursuit of his activities as a Merchant seaman, but the entry from which this application dates is an entry in April 2001 when he was given leave to enter as a student in order to improve his maritime skills and knowledge. That leave was eventually extended to May 2002. He made a proper application in time for leave to remain outside the immigration rules. That was refused on 3 September 2003. While waiting for that application to be dealt with, he sought a British seaman’s card, not realising that he needed to be a British citizen in order to achieve that; and he also took up temporary work with the Prison Service. That is a factor stressed in this case because all reports indicate that he was a valuable member of that service (even though technically, I think, he should not have been working in it) and was indeed used by the service, I am told (I have seen no evidence, but I accept it) as an example of the much-needed participation in that service of members of ethnic minorities.

He then sought to stay here on grounds of long residency, but eventually was served with the notice of liability to removal to which I have already referred and which he appeals against. His application was originally turned down by an immigration judge, but reconsideration was ordered. Mr Jones, who has appeared for him today, properly reminds me that the senior immigration judge thought that it was possible that Mr KG could establish a case under article 8(2). That reconsideration eventually came before Designated Immigration Judge Aitken on 8 August 2007. That was a full reconsideration. He heard Mr KG give evidence. He accepted that he was an honest witness and that he had always respected the immigration rules of this country, and he made the findings that I have already indicated as to his employment and so on. The immigration judge correctly directed himself in paragraph 9 of his determination in these terms:

“I find that there will be an interference with the Appellant’s private life and that article 8 is engaged. It is in accordance with the law since the appellant has no legitimate basis to remain in the United Kingdom. The removal of persons is necessary in a democratic society when one takes a wider view of immigration regulation. The issue then becomes whether the removal is proportionate in these particular circumstances.”

Now the complaint about the Designated Immigration Judge’s finding, that the removal of the appellant was proportionate, is this that immediately after he had set out the law he then, in paragraph 10 of his determination, said that he had taken account of all the matters that had been raised by the lady then representing Mr KG (not Mr Jones who appears before me today) and he set out at some length, over a page of his determination, all those matters that I have already touched on, including his usefulness as a member of the Prison Service and his good behaviour. So it is entirely fair to say that there is not attached to this case some of the negative features which unfortunately sometimes affect cases of this sort. The immigration judge then, at some length, set out a quotation from the case of SO (Article 8 -- impact on third parties) Nigeria UKAIT 00135, which also concerned someone who entered into employment when awaiting a decision from the Secretary of State. In that determination the Asylum and Immigration Tribunal considered that it was wrong to have placed emphasis on the fact that the appellant had started a business in this country, because it was considered that he could do that just as well if he was required to return to Nigeria. There is a difference in this case in that Mr KG (it is, I think, accepted) cannot transfer such skills as he has in the world of prison management to the different system in his native country were he to return there, and it may be that his skills as a Merchant seaman may not be so available there; though I have to note that he had satisfactorily worked as a merchant seaman, as it would seem, from 1988 until he came to this country in 2001. It is also the case, of course, that this is a case of a claimed interference with Mr KG’s private life, that is to say his life as a worker and so on, not with his family life. Apparently he has a wife and children in India. I know nothing about why he does not want to go back to join them, but this is not a case where other people will be involved, or where he makes any claim to have developed a family life in this country.

Having referred to that factor about employment, the immigration judge then said this in paragraph 12:

“That is not to say that the work that the Appellant has undertaken or the manner in which he has undertaken it and the voluntary work he has also done is not a feature to be taken into account, I do take it into account along with all of the matters which have been raised, the point of the decision which has to be made is that it is a one of proportionality and for that reason all aspects should be taken into account to decide whether it is proportionate to remove him. I bear in mind the test as set out in paragraph 20 of Huang applying all the facts as I have found them I find that the removal of the Appellant is proportionate given the United Kingdom’s legitimate interest in ensuring adherence to immigration law.”

Mr Jones criticises that approach as being inadequately reasoned. He says this is a case that really is so strong in favour of this gentleman remaining in this country that it was necessary for the senior immigration judge to go -- I think it is effectively suggested, point by point -- through the items that he had set out in this gentleman’s favour and explain why, nonetheless, the interests of immigration control outweighed each of those factors. He also suggests that the immigration judge was unduly influenced in respect of the impact and employment in this country by the decision in SO. As to the second of those points, although the determination presents some difficulties, I do not think that the judge did regard the view expressed in SO as being conclusive, bearing in mind that he said, and is to be taken to have said accurately, that he had borne in mind the work that this appellant had indeed undertaken. As to the general point on the reasoning, it is important to remember that the importance of maintaining immigration control is a central consideration in deciding proportionality under article 8. It is not necessary to argue out that issue in every case, as Mr Jones suggests. There are many quotations that support that view, but I would venture to mention what was said by Sedley LJ in KR (Iraq) [2007] EWCA Civ 514 at paragraph 6:

“….I agree nevertheless with Auld LJ that the essential change in our approach following Huang will be that, rather than take the threshold of entry into art. 8(1) to be some exceptionally grave interference with private or family life, tribunals and courts will take the language of the article at face value and, wherever an interference of the kind the article envisages is established, consider whether it is justified under art. 8(2). In the great majority of cases it will be, because immigration controls are established by law and their operation ordinarily meets the criteria of proportionality which, in the Strasbourg jurisprudence, measure what is necessary in a democratic society for such prescribed purposes as the economic wellbeing of the country. While therefore there is no need to apply a formal test of exceptionality, it will be only rarely in practice that an otherwise lawful removal which disrupts family or private life cannot be shown to be compliant with art. 8.”

That it will be borne in mind was a determination made well in view of the decision of the House of Lords in Huang. Against that background, I do not accept that it was necessary in this case for the Designated Immigration Judge having indicated that he had fully in mind all the matters that can be quoted in this gentleman’s favour, to reiterate why it was that those matters nonetheless did not offset the very strong importance of immigration control to which Sedley LJ referred in the passage that I have just read. It was sufficient in order to explain his decision for him to take the approach that he did. Indeed, it might to some extent appear to be otiose if he had run through each point in turn and said that, nonetheless, the overriding requirement of maintaining the system and structure of immigration control was not affected by those points.

It has been suggested in argument that, as I have said, this case was really so strong in favour of Mr KG that, in any event, the approach that the judge took could not be justified. To the extent that it is relevant, I am afraid that I do not agree with that submission. Mr KG, as we have seen, came to this country in 2001 from a country where he had been working and where he had family. He was quite unlike the minors who were engaged in cases like CM (Kenya) v SSHD [2007] EWCA Civ 312 or AG (Eritrea) [2007] EWCA Civ 801, where there were genuine questions as to whether it would be disproportionate to apply the general rules of immigration control to their cases. That point is not made out in the case of Mr KG, useful member of the community though he may have been for the last three or four years. That means that it was not necessary for the senior immigration judge to go further than he did in his reasoning in order to explain his conclusion. When refusing permission on paper, Sir Henry Brooke, sitting as a judge of this court, said of the Designated Immigration Judge’s decision:

“He directed himself correctly in law, set out correctly the question he had to decide at paragraph 9 of his determination. He showed that he took into account the factors weighing in the appellant’s favour, but came to the conclusion that the answer he posed to the issue he identified in paragraph 9 was ‘yes’.”

For the reasons that I have set out at some length, in deference to the very helpful submissions of Mr Jones, I respectfully agree. This application is refused.