AD (Algeria) v Secretary of State for the Home Department

This is a renewed application for permission to appeal the decision of the Asylum and Immigration Tribunal (“AIT”) dated 7 August 2007. The circumstances relating to the applicant’s appeal for the AIT are these. The applicant is a citizen of Algeria born on 12 May 1956. He arrived in the United Kingdom with his wife and three dependent children on 20 July 2001 and was given leave to enter as a visitor for a period of six months. He then unsuccessfully applied for asylum on 30 July 2001 and, whilst he was pursuing that matter, on 31 July 2003 he applied for leave to remain in the United Kingdom under the highly skilled migrant programme. His wife also applied for leave to remain as his dependent. That application was refused on 1 December 2003. Thereafter the applicant, but not his wife, appealed that decision. The appeal was heard in Birmingham on 30 September 2005. Immigration Judge Sangha decided to dismiss the appeal, both under the immigration rules and also on human rights grounds. The applicant applied for a reconsideration of that decision. On 31 October 2005 Senior Immigration Judge Gill made no order for reconsideration, on the basis that the application had been made out of time. However, following an order by McCombe J made on 30 November 2005 the first part reconsideration hearing came before a panel of the AIT on 6 June 2006.

The AIT panel found that there had been no material error of law in the determination of Immigration Judge Sangha. The applicant obtained leave to appeal that decision to the Court of Appeal. On 18 December 2006, by consent, the Court of Appeal ordered:

“that the matter be remitted to the Asylum and Immigration Tribunal for a reconsideration before a differently constituted tribunal.”

The relevant statement of reasons which accompanied that order by consent was in the following terms:

“1.

It is arguable that the AIT erred in applying the case of JM (Liberia) [2006] UKAIT 0009 to the facts of the appellant’s case. Now that the Court of Appeal has overturned the AIT’s decision of JM (Liberia),the determination of the AIT in the appellant’s case should no longer stand.

2.

It is accordingly expedient, and the parties accordingly agree, that the entire appeal be remitted to the AIT for a reconsideration hearing. It will be for the AIT to determine how the reconsideration will proceed upon submission from both parties.”

As a result of those proceedings Senior Immigration Judge Warr, sitting at Field House on 25 May 2007, found that there had been a material error of law in the determination of Immigration Judge Sangha. The reasons given for that decision were as follows:

“The immigration judge understandably but wrongly applied the exceptionality test which Huang [2007] UKHL 11 demonstrates is inappropriate. It will not be in every case that the determination will be vitiated by such a reference but the representatives agreed that in this appeal the judge placed heavy reliance in paragraph 61 of the determination on the need to establish truly exceptional circumstances and in the premises it is apparent that he materially erred in law. The determination was in 2005 and matters have moved on and it is expedient to adjourn the proceedings to enable fresh findings to be made on the human rights issues it being conceded below and not argued before me that the appellant cannot succeed under the rules.”

It is therefore apparent that the appeal which then came before the AIT for reconsideration was confined to the human rights issue and it was necessary to make fresh findings with regard to those. Insofar as there had been an appeal under the immigration rules, that was no longer a live matter. It was the adjourned hearing, referred to in the decision made by Senior Immigration Judge Warr, that came before the AIT and resulted in the decision which is the subject matter of this application.

At the hearing before the AIT fresh evidence was called on behalf of the appellant. In the written determination of the AIT there is a detailed account of that evidence. The first witness to give evidence was the applicant himself. Paragraphs 3 to 8 of the written determination summarise his evidence. It includes the applicant’s account of his family and family life and his children. The second witness to give evidence was the applicant’s eldest son, Seddik. His evidence is summarised in paragraphs 9 to 11 of the written determination. The third witness to give evidence was the applicant’s eldest daughter, Imane. Her evidence is summarised in paragraphs 12 to 14 of the written determination and includes the following passage:

“14.

She now had no contact with anybody in Algeria. Her family had not really discussed the prospect of return to Algeria. She did not want to consider such a prospect as her life was in the UK and she could not re-start it in Algeria.”

The final witness called before the AIT was the applicant’s younger daughter, Lilia. Her evidence is summarised in paragraphs 15 to 17 of the written determination. In paragraph 16 the AIT recorded part of her evidence as follows:

“16.

Finally, Lilia… said that her home was in the UK and she could not contemplate going to live in Algeria.”

After hearing the oral evidence the AIT then heard submissions from the parties. The submissions included those made by Mr Azmi on behalf of the applicant in which Mr Azmi submitted that it was significant that the applicant’s children had spent their formative years in the UK and would soon be in a position to make significant contributions to the UK society. The essential thrust of Mr Azmi’s submissions was that the removal of the applicant would be a disproportionate breach of his Article 8 rights and that the result of delay in dealing with the matters had meant that the family was now more entrenched in the UK. Mr Azmi made the point that during their time in the United Kingdom all members of the family had made considerable achievements. He therefore submitted that it was an exceptional case and that, for that reason, the appeal should be allowed. Having heard the evidence and submissions the AIT then made their findings. Those findings appear at paragraph 23 onwards of the written determination.

It is helpful to quote paragraphs 24 and 26 of the determination which are in the following terms:

“24.

The appellant has a family life in the UK with his wife and children who include his youngest son Redoune born in the UK on 5 November 2001. He does not now have any other relatives in the UK. The appellant’s return to Algeria will not amount to an interference with that family life because we find no obstacle to his family members returning with him. It was not in dispute that it is safe for them to do so. Return will amount to some disruption to their lives but this does not amount to an insurmountable obstacle. It is to be remembered that the Appellant’s wife and children are not Appellants in this appeal, and therefore their human rights only concern us in as much as any breach would impact upon the human rights of the Appellant. If it is the case that the return of the Appellant’s wife and children amounts to a lack of respect for their private life in the UK then this may cause the appellant some distress, but no more than that and it will not amount to a breach of his Article 8 rights.

…

26.

We said earlier that the affect of the respondent’s decision upon the Appellant’s family is only relevant inasmuch as it impacts upon the human rights of the Appellant. There was no evidence as to the effect upon the Appellant’s wife and youngest son. As regards the remaining children, they have adjusted very well to life in the UK, and have excelled academically, but the evidence does not show that their progress would be necessarily terminated in Algeria. They are intelligent and resourceful young people adept at learning languages. The effect upon them will have little impact on the human rights of the Appellant.”

Then finally turning to the decision: the decision of the AIT was as follows:

“30.

There was a material error of law in the Determination of Immigration Judge Sangha. However, we confirm his decision to dismiss the appeal under the Immigration Rules and on human rights grounds.”

On behalf of the applicant, Mr Jones submitted that it was arguable that the AIT had erred in its determination in directing itself that it was concerned with the human rights of the appellant’s dependants only to the extent that any breach of those rights impacted upon the applicant’s human rights. In the alternative, Mr Jones submitted that even if the AIT’s approach had been correct, it had erred in proceeding to determine the substance of the appellant’s Article 8 appeal on the basis that there would be no interference with his family life as any removal would entail the removal of the family as a whole. In support of his general submissions Mr Jones referred to a number of authorities, including the decision of Jack J in The Crown on the Application of AC v The Immigration Appeal Tribunal [2003] EWHC 389. At paragraph 33 of his judgment Jack J said this:

“It seems to me artificial and unsatisfactory that, where a right to family life is established as existing, the effect of the interference on only one individual should be taken into account. That must particularly be so where the effect of the decision to be made, if made one way, is likely to be to destroy the family life in question. The purpose of the Article is, in relation to family life, to conserve that life. As I have pointed out, the impact on one family member in turn impacts on another. So I consider that it is the effect of the proposed interference on the family life as a whole which should be taken into account.”

In paragraph 38 Jack J said this:

“I conclude that the tribunal was right in deciding that it was not primarily concerned with the human rights of S. The grounds of appeal under section 65 are restricted to breaches of the human rights of the appellant. The human rights of another person will only be relevant if a breach of them impinges on the human rights of the appellant. I also conclude that the Tribunal was wrong if, as I think that it did, it concluded that in considering the rights of the appellant, AC, under Article 8, it should take no account of the impact of the proposed deportation on S. On an appeal under section 65 the adjudicator and the Tribunal should take into account the impact of the proposed deportation on the family life of any person with whom the appellant has established a family life.”

In the course of his submissions, Mr Jones accepted that for the purposes of this application Jack J’s statement of the law was correct. Mr Jones was right to make that concession, in my view. However, as it seems to me, the AIT was mindful of that decision and applied it correctly. I am satisfied that, by reference to paragraphs 24 and 26 of the determination, which I have already quoted, it is clear that the AIT did have in mind that the impact of deportation on one family member in turn impacts upon another. It is also clear to me that the effect of the proposed interference on the family life as a whole was taken into account by the AIT. The AIT approached the matter correctly, in my judgment, whilst at the same time recognising that the grounds of appeal under section 65 were restricted to breaches of the human rights of the actual appellant. This was not a case like that considered by Jack J where the AIT concluded that, in considering the rights of the applicant, it should take no account of the impact of the proposed deportation on the other family members. Quite the reverse, in my view. It is clear from paragraphs 24 and 26 that the AIT did take account of the impact of any removal on other family members. It would have been very surprising if the AIT had not taken account of such matters, given that they had been careful to receive evidence from not only the applicant but three of his children, which was then carefully summarised in the written determination.

As it seems to me, the second alternative matter relied upon by Mr Jones adds nothing to the main submission on which he relied which, in my judgment, does not give rise to any arguable ground of appeal in this matter. Before concluding, I should say that I accept the explanation given by Mr Jones as to why this matter was not put in the way that it is now put forward, as opposed to the way it was originally put and which gives rise to the comments made by Longmore LJ when refusing leave to appeal on paper. I have therefore approached this matter entirely by reference to the merits of the submissions now put forward by Mr Jones which, for the reasons I have given, seem to me not to be sufficiently persuasive for the purposes of granting permission to appeal in this matter. Accordingly for those reasons this renewed application is refused.