BS (Senegal) v Secretary of State for the Home Department

Mr Jorro renews the application for permission to appeal which was refused on sight of the papers by Stanley Burnton LJ. He has not sought to challenge the intermediate decision that the first determination, that of Immigration Judge Doran in the appellant’s favour, was legally flawed. His entire focus therefore is on whether the redetermination at the second stage of reconsideration was itself legally flawed. Mr Jorro, wisely if I may say so, has taken account of Stanley Burnton LJ’s reasons for refusing permission to appeal and has not sought to renew his application on ground one. What he has done is focus his application upon ground two, the dismissal of the Article 8 claim, and has sought again to make that good under four heads spelt out in his grounds and skeleton argument.

As to these, crudely speaking, grounds one and three advance the complaint that there was a failure in the second-stage reconsideration determination to make a clear and unambiguous finding as to whether Article 8 is engaged. There is however in paragraphs 64-65 finding that such family life as the Tribunal believes there is can properly withstand removal, either by the partner going to Senegal with the appellant or by the appellant applying for clearance to return when he gets there. It may be that that will be found not to be an improper approach, in the light in particular of this court’s recent decision in VW (Uganda) [2009] EWCA Civ 5, but it is, I accept, questionable.

The problem that arises where a tribunal does not unequivocally accept that there is family life at all, but then assumes against itself that there may be and decides proportionality, is that without a proper appraisal of the depth and breadth of the family life it is arguably impossible to make a sensible proportionality finding. So while I am not convinced by the critique in itself in relation to the point of entry into Article 8, I do see that it is capable of impacting on what I now turn to, which is the question of proportionality.

As to this, Mr Jorro submits that there was a failure to take account of material matters, particularly the cohabitation with the partner and the Muslim marriage to her and the child that is on the way, and in the use by the Tribunal of the phrase “any interference with any family life”. The double use of the word “any” indicates a fudge which Mr Jorro argues is not acceptable in the making of a structured decision. In particular he submits that there is an omission of facts that needed to be evaluated, including the fact that the partner has lived here all her life, is a UK citizen, has never been to Senegal and certainly does not know any of the local languages.To this end, he wants to adduce further evidence, at least some of which has arisen since the date of the decision.

While, if the only question was whether there was a culpable failure to make an unambiguous finding as to whether Article 8 was engaged, I would not be persuaded that there was a sufficiently viable critique to warrant a grant of permission to appeal, I do consider it arguable that, having been prepared to accept or to assume that family life was engaged, the AIT went on to deal cursorily and in a wholly unstructured way with the difficult issues going to proportionality in any case such as the present one where removal is going to mean either breaking up an existing family or the transposition of the family to a place which is strange to all of them, because this was an internal relocation case, and wholly foreign to the partner, who is British and has lived here all her life.

The repeated endeavours of this court to insist upon a structured decision and to indicate how such a decision can and should be made do not seem even now to have borne the fruit they should have done. We sought in AG (Eritrea) [2007] EWCA Civ 801 at paragraphs 14 onwards to deal comprehensively with the state of the law as by then it was and, as at today, I apprehend it still is. We tried in VW (Uganda), which I have mentioned, at paragraph 17 onwards to reiterate and crystallise what we had said, but it does not appear to have had the effect that was intended. Mr Jorro is, I think, entitled to pursue that critique against the finding of the AIT in the present case. He is entitled in particular to argue that his client was entitled to a far less brusque and dismissive consideration of the essence of his Article 8 claim than is found at paragraphs 63-65 of the decision.

On this restricted basis I am prepared to grant permission to appeal. Although I have indicated where I feel the focus of argument needs to be under Article 8, I am not going to place a formal restriction upon the grant of permission. It will be permission to appeal on ground two of Mr Jorro’s grounds.

The ancillary question of the admission of fresh evidence will stand over to the court hearing the appeal, which will be a court of three judges, one of whom may be a High Court Judge. I think it should be a half-day hearing.