Before the court are two appeals which were conjoined in the AIT at the point of second stage reconsideration. At that point both claims under Article 8 to remain in this country were dismissed by the AIT. The question before this court, however, is whether in either case the AIT, in the person of Senior Immigration Judge Chalkley, was justified in sending the case on for second stage reconsideration. It is submitted by Mr Patrick Lewis in both cases that Senior Immigration Judge Chalkley erred in finding any error of law in either first instance determination, which in each case had been a determination in favour of the individual appellant such that they were to be allowed to stay.

I will turn first to the case of Raquel Peters, who is a Zimbabwean by nationality and is now 23. Her mother has a temporary right of abode here as a person with a UK ancestry visa. The parents, in the exercise of the rights which such a visa affords, have decided to settle here with her younger sibling. They have done so principally because of the deteriorating situation in Zimbabwe, but they did not come as asylum seekers. They sold up their property there, and this appellant consequently now has neither immediate family nor assets in Zimbabwe to which she can look for support.

She herself came here first in 2002 on a working holiday visa. She stayed with her uncle and his family in West Sussex but after a few months returned to Zimbabwe because she missed her family. A year later in May 2004 she returned with her mother, and in November 2004 applied for leave to remain as a dependent of someone with an ancestry visa. The father brought the rest of the family over the following month. But the Home Office declined to allow the appellant to remain here. On appeal to the AIT, however, Immigration Judge Powell accepted that hers was an exceptional case in which the breach in family and private life which removal to Zimbabwe would entail was disproportionate to the legitimate aim of removal.

Senior Immigration Judge Gill considered it arguable that the immigration judge had given no or inadequate reasons for finding that Article 8(1) was engaged, and ordered reconsideration. On first stage reconsideration Senior Immigration Judge Chalkley held that there had been a failure to explain

The error, in the view of Senior Immigration Judge Chalkley, arose out of the want of an adequate explanation of why Article 8 was engaged at all. The question for this court is thus not whether the immigration judge’s determination was vitiated by any error of reasoning in relation to the proportionality of invading the appellant’s Article 8 rights; it concerned solely whether he had adequately explained why Article 8 was engaged at all.

In my judgment there was no such error or omission in Immigration Judge Powell’s decision. Indeed, when the case came on for a second stage reconsideration, the Home Office Presenting Officer accepted that there was no issue but that the appellant enjoyed a family life in this country. Given the uncontested evidence before the immigration judge that the appellant had lived pretty well continuously with her parents and siblings all her life and that she was still doing so, any other submission or finding would have been quite unreal. Before the immigration judge himself, it is recorded at paragraph 11 that the Home Office did not contend otherwise. Its case was that removal was nevertheless a proportionate interference with the appellant’s family life. In this situation there was in my judgment no need whatever for the immigration judge to have said any more than he said on the subject at paragraph 29; neither before him nor since has there been any suggestion that he was incorrect in so finding.

I would add for my part that if I had considered that the second stage determination was warranted I would have had some serious reservations about the reasoning which led the tribunal which conducted it to substitute an opposite finding to that of Immigration Judge Powell on proportionality. They thought it appropriate to hold against the appellant’s family the fact that they had chosen to leave Zimbabwe when they were not being persecuted to an extent entitling them to claim asylum, apparently overlooking the fact that they had come here as of right. They also thought it right to make other comments suggestive of a settled hostility to Article 8 claims. In the event, however, there has been no need to canvass these issues because in my judgment no second stage consideration ought to have been ordered at all. The decision of Immigration Judge Powell was free of error of law. In that situation the determination of Senior Immigration Judge Chalkley falls to be overturned and the appeal to be allowed.

I turn to the case of Rodney Peters who is Raquel’s cousin. He too is a Zimbabwean national of mixed African and Asian descent. I mention that for a reason. He is now 25 years old and is single, but it is undisputed that economically and emotionally he is a dependent member of his immediate family, all of whom -- that is, his parents and his two sisters -- are now lawfully resident here on the basis of the mother’s UK ancestry visa, a residence which, as I understand it, will after four years enable them to seek indefinite leave to remain. He is also close to two male cousins on his mother’s side, both of whom now live here. There is therefore no question but that his proposed removal to Zimbabwe will disrupt close family ties. It is also common ground that although the appellant has grandparents in Zimbabwe, they are elderly and infirm. He is nevertheless a fit young man with a BA in psychology from Rhodes University in South Africa; but Zimbabwe is a country with 80% unemployment where people of mixed race face discrimination.

This appellant appealed on Article 8 grounds against the Home Office’s decision to refuse an extension of his leave to remain. In July 2005 Immigration Judge Oakley allowed his appeal. Following a consensual remission on a jurisdictional issue, a reconsideration was ordered by Senior Immigration Judge Storey on the ground that the decision was arguably perverse:

Although it has been sought to impugn the second stage consideration on its own merits, Sir Henry Brooke refused permission to appeal either against that decision or against the first stage reconsideration which resulted in it. On renewal, Moses LJ gave permission solely to challenge Senior Immigration Judge Chalkley’s determination that Immigration Judge Oakley had erred in law and it is on this issue alone that the appeal had consequently been conducted before us.

Senior Immigration Judge Chalkley found two errors of law. The first was that, having reached a properly reasoned conclusion that the appellant had established a family life here but that return would be lawful, and before turning to the question whether, even so, it would be proportionate, the immigration judge had turned aside to deal with a point which had been raised not by the appellant but by the Home Office Presenting Officer: that the appellant, if returned, could perfectly well apply to come back to this country on a student or working visa. The immigration judge had dismissed this in the following terms in paragraph 35 of his determination:

Senior Immigration Judge Chalkley was scathing about this, as indeed he was about the generality of Immigration Judge Oakley’s determination, which he called “rather confused”, a criticism which, in my respectful opinion, was unfair. He went on to write in his first stage reconsideration decision at paragraphs 25-29:

It is patent that all that Immigration Judge Oakley had been doing was deal with an endeavour by the Home Office presenting officer to play down the effects of return by suggesting that the appellant could anyway rejoin his family in fairly short order with the help of a student visa or a work permit. The immigration judge, as I have said, quite legitimately anticipated that the Home Office would view such an application for what it was -- a device to rejoin the family from which he had been lawfully separated - and so would reject it. He would have been rightly criticised if he had failed to deal with this argument; he cannot in my judgment possibly be criticised instead for having dealt with it. True, he might have done better to discountenance the argument entirely. Miss Sen Gupta has drawn our attention to the decision of this court in the case of SB (Bangladesh) v SSHD[2007] EWCA Civ 28, where an argument which was analogous though not the same had been advanced below and where, at paragraph 36, giving the judgment of the court, Ward LJ said:

More problematical, on the face of it, is the error of law adumbrated by Senior Immigration Judge Storey in ordering reconsideration and adopted by Senior Immigration Judge Chalkley. It is said to lie in paragraph 37 of Immigration Judge Oakley’s determination which, together with paragraphs 36 and 38, deals with the proportionality factors in this appellant’s case. They read as follows:

As to this passage, Senior Immigration Judge Chalkley wrote at paragraph 28 of his first stage determination:

The court has raised the possibility that the Senior Immigration Judge may, in the phrase “failing to conclude”, have meant “failing to consider”. If so, he would not have been justified in so holding because there was no failure to consider this aspect of the case. The immigration judge’s paragraph 37 has to be read in the context of his determination as a whole, which included in paragraph 16 the recital of evidence (which was evidently uncontested) about the paucity of the appellant’s prospects of employment as a lawyer in Zimbabwe, even if he were to qualify as a lawyer there.

So I return to the prima facie meaning of paragraph 28. It is first to be observed that if the perversity finding which it contains was right, no second stage reconsideration would have been required. In law the appellant’s case on this point had to fail. There is no explanation of why the Senior Immigration Judge did not follow the logic of his own conclusion in this regard, but the more immediate question is whether he was entitled to hold that Immigration Judge Oakley had reached a decision on the evidence which no rational immigration judge could reach. That is a question which has always to be scrupulously disentangled from the question whether the second decision maker simply entertains a strong disagreement with the first, and I am not satisfied that that scrupulous separation was made here.

The Senior Immigration Judge’s paragraph 28, which contains the entirety of his reasoning on the issue, does not attempt to set out the competing factors so as to demonstrate that on balance only one view of them -- an adverse one -- was possible. It sets out only those which militate in favour of removal. Nowhere do we find it demonstrated in his determination, as has to be done on a successful perversity challenge, how, even accepting those factors which militate against it, removal can only be rationally regarded as proportionate.

The underlying concern articulated by Senior Immigration Judge Storey in giving the initial leave is real, but a decision such as Immigration Judge Oakley’s does not represent -- and Miss Sen Gupta, to her credit, has not suggested it does -- a backdoor route to ad hoc family reunion for over-18s who can and arguably ought to be independent. It requires proof, first and foremost, of an extant family life in the United Kingdom of sufficient reality to engage Article 8. Such proof existed here and its existence is not contested. It does not mean that anyone threatened with return to a poor or disturbed country can, for that reason alone resist removal. As the second stage reconsiderations in this and its associated case show, more than one view may be taken of the proportionality of removal in such cases, although I reiterate we have not had to embark upon the tenability of that view in the present case; but unless the decision on a first instance Article 8 appeal is vitiated by an identifiable error of law, which may in an extreme case include perversity on the facts, it cannot be overset on a first stage reconsideration. In my judgment, in Rodney Peters’ case as in Raquel Peters’ case, there was no such error, and in his case too the initial decision should stand. I would accordingly allow both appeals.

I agree

I also agree.