YD (Togo) v The Secretary of state for the home Department

This is an appeal, with permission granted by Sedley LJ on 30 April 2009, against a decision of the Asylum and Immigration Tribunal (Senior Immigration Judge Gleeson) promulgated on 16 January 2009, on a redetermination, to the effect that an earlier appeal decision by Immigration Judge Fisher was not flawed by any material of law and therefore stood. Immigration Judge Fisher on 10 September 2008 had dismissed the appellant's appeal against the refusal by the Secretary of State to grant him discretionary leave to remain in the United Kingdom on account of his marriage to a British citizen. The only live issue before the first Immigration Judge had been the appellant's claim pursuant to Article 8 of the European Convention on Human Rights.

The appellant is a national of Togo, born on 31 December 1975. He arrived in the United Kingdom illegally on 9 August 2001; he made an unsuccessful asylum claim and his appeal against refusal was ultimately dismissed by the Immigration Appeal Tribunal. On 18 December 2004 he married Jill Davidson, a British citizen, who had lived all her life here. In May 2005 the appellant's then solicitors lodged a fresh asylum claim and a claim for discretionary relief to remain on account of the marriage. A good deal of correspondence followed and there was a significant period of delay. At length, on 16 July 2008, the appellant's fresh asylum claim was refused and so was his application for discretionary relief. His appeal was dismissed, as I have indicated, by Immigration Judge Fisher on 10 September 2008.

On the appellant's application Senior Immigration Judge Freeman ordered reconsideration on 25 September 2008. Senior Immigration Judge Gleeson conducted the reconsideration on 24 November 2008, and on 16 January 2009 held that Immigration Judge Fisher's decision was free of any material legal error. Accordingly the appellant's appeal against the Secretary of State's decision stood dismissed.

As I have said the only live issue before the first Immigration Judge was the Article 8 claim. Article 8 of course guarantees respect for private and family life. The essence of the appellant's principal argument (ground 1 of this appeal) is that both the immigration judge and the Senior Immigration Judge (but most pertinently the former) approached the question, whether the appellant's removal was in the circumstances proportionate given the legitimate aim of immigration control, on a legally faulty basis. It is said that they considered the question would be concluded against the appellant if there were no “insurmountable obstacles” to the appellant's wife joining him in Togo, and their enjoying family life there. That, it is submitted, is not the test for Article 8.

The expression “insurmountable obstacles” first gained prominence in this field because of its use by Lord Phillips Master of the Rolls as he then was in R (Mahmoud) v SSHD [2001] Volume 1 WLR 840. It was thought for a time in some quarters that unless there were insurmountable obstacles in the way of family members joining an immigrant in his home state were he returned there, then other things being equal his removal would not involve a violation of Article 8. That is not, however, a correct statement of the law as it stands today. The recent authorities are well known. In Huang [2007] Volume 2 AC 167 Lord Bingham said this at paragraph 20:

“…the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality.”

Reflecting on that reasoning, Lord Bingham in EB (Kosovo) [2008] Volume 3 WLR 178 [2008] UKHL 41 said this at paragraph 12:

“12.

Thus the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires.”

In EW (Uganda) [2009] EWCA Civil 5 this court, having reflected on the reasoning in EB (Kosovo), stated as follows:

“19.

The words which I have italicized lay to rest an issue which has troubled decisionmakers and advocates at least since the decision of this court in R (Mahmood) v Home Secretary[2001] 1 WLR 840, because of the use by Lord Phillips MR, in the course of giving the second judgment, of the phrase “insurmountable obstacles” in the context of art. 8. This court sought, in the later case of LM (DRC) v Home Secretary [2008] EWCA Civ 325 to explain the contextual significance of the phrase. Ms Busch

adopts what I said in §11-14 of my judgment in that case. But for the present, at least, the last word on the subject has now been said in EB (Kosovo). While it is of course possible that the facts of any one case may disclose an insurmountable obstacle to removal, the inquiry into proportionality is not a search for such an obstacle and does not end with its elimination. It is a balanced judgment of what can reasonably be expected in the light of all the material facts.

24.

EB (Kosovo)now confirms that the material question in gauging the proportionality of a removal or deportation which will or may break up a family unless the family itself decamps is not whether there is an insuperable obstacle to this happening but whether it is reasonable to expect the family to leave with the appellant. It is to be hoped that reliance on what was a misreading of Mahmood, as this court had already explained in LM (DRC) [2008] EWCA Civ 325 (and as Collins J had previously done in Bakir [2002] UKIAT 01176, § 9), will now cease.”

Mr Kovats, acting for the Secretary of State this morning, drew our attention also to JO (Uganda) [2010] EWCA Civ 10, paragraph 26, as representing the law as it has most recently been expressed:

“26.

Concentration on whether family members can reasonably be expected to relocate with the applicant ensures that the seriousness of the difficulties which they are likely to encounter in the country to which the applicant is to be deported (the relevant criterion in the Strasbourg case-law) is properly assessed as a whole and is taken duly into account, together with all other relevant matters, in determining the proportionality of deportation. One must not limit the enquiry to whether there are "insurmountable obstacles" or whether (in the language of Onur) it is "impossible or exceptionally difficult" for the family to join the applicant: a broader assessment of the difficulties is called for. As it seems to me, however, the actual language used is not critical (and the Strasbourg court itself has used various expressions in describing the seriousness of the difficulties of relocation in individual cases), provided that it is clear that the matter has been looked at as a whole and that no limiting test has been applied.”

On ground 1 then I turn to the decision of Immigration Judge Fisher at paragraph 12. He recognised that the appellant's removal would amount to interference with his family and private life and that of his wife. He appreciated that she had been born here and lived here all her life, is in long-term, well paid employment and owns her own home. In paragraph 13 he expressly referred to and cited the reasoning in EB (Kosovo). At paragraph 14 however he referred to insurmountable obstacles, saying this:

“The removal or exclusion of one family member from the state where other members of the family are lawfully resident will not necessarily infringe Article 8 provided there are no insurmountable obstacles to them living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all of the family members. It is clear, and indeed, it was admitted by the Appellant and his wife that both of them were aware of the Appellant’s precarious status at an early stage of their relationship, and it is equally clear that both were aware of it at the time of their marriage. It has been held that such knowledge militates against a finding that an order of exclusion is in violation of Article 8.”

Then, having referred to the issue of delay to which I will return briefly, Immigration Judge Fisher said this:

“17.

I conclude that this appeal turns on the question of whether there are insurmountable obstacles which prevent Mrs D from relocating to Togo.”

The judge proceeded to consider the appellant's circumstances in some detail. In paragraph 18 he concluded:

“Although I have some sympathy for the Appellant and Mrs Degbe, I am not satisfied that it would be unreasonable in all of the circumstances of the case for Mrs Degbe to follow the Appellant to Togo. I do not find that there are insurmountable obstacles which would prevent her from doing so. As a result, I must dismiss this appeal.”

Before Senior Immigration Judge Gleeson there was a good deal of discussion on the further House of Lords authority of Chikwamba v SSHD [2008] Vol 1 WLR 1420, [2008] UKHL 40. That case plays its part in the fifth ground of appeal and for the moment I postpone any consideration on it.

The complaint against Senior Immigration Judge Gleeson on ground 1 is that she never properly confronted Immigration Judge Fisher's conclusion (paragraph 17) that the appeal turned on an “insurmountable obstacles” test and his further conclusion (paragraph 18) that there were no insurmountable obstacles in the way of the applicant's wife going with him to Togo. Senior Immigration Judge Gleeson acknowledged there was a point on what Immigration Judge Fisher had said about insurmountable obstacles (see paragraph 41 of her determination) but she proceeded then to address the recent Strasbourg decision in Omoregie [2009] IAR 120, in which the Nigerian applicant had married a Norwegian national by whom he had a child. There was a bad immigration history, and at length the applicant was expelled from Norway. At paragraph 57 of the judgment the Strasbourg court stated that:

“A factor to be taken into account in assessing whether removal was proportionate to a legitimate aim was ‘whether there are insurmountable obstacles in the way of the family living in the country of origin of one or all of them’.”

And there is further reference to insurmountable obstacles in paragraph 66. Senior Immigration Judge Gleeson went on to state (paragraph 47):

“... the majority decision that is in Omoregie makes it appear that the question of insurmountable obstacles is not severable but forms part of the proportionality consideration as here.”

Senior Immigration Judge Gleeson devoted a good deal of her determination to a discussion of the Omoregie case. It clearly coloured her approach to this case. In the second last paragraph of her decision she says:

“This is consideration of insurmountable obstacles distinguishable from consideration and proportionality.”

The Senior Immigration Judge's reliance on Omoregie forms the second ground of appeal, and thus it is clearly adjectival to the first ground. Between them the grounds assert in short that there was a misplaced adherence by Immigration Judge Fisher, uncorrected by Senior Immigration Judge Gleeson, to a test for Article 8 based on “insurmountable obstacles”.

The ultimate question in grounds 1 and 2 is whether Immigration Judge Fisher made a material error of law by applying an inapt test, that of insurmountable obstacles. Looking at the text of his determination it is true that Immigration Judge Fisher referred, as I have said, to the EB (Kosovo) approach paragraph 30. It is true also that at paragraph 18 Immigration Judge Fisher held that it would not be “unreasonable in all the circumstances” for the wife to follow the appellant to Togo. At paragraph 17 he stated in terms that the appeal actually turned on the insurmountable obstacles issue; and in paragraph 18, after the reference to reasonableness, he made a finding that there were no insurmountable obstacles to prevent the wife joining the appellant.

I conclude that Immigration Judge Fisher at least appears to have regarded insurmountable obstacles as the critical legal touchstone in this case, and treated it as a legal test for Article 8 that was an error of law. If it is unclear whether that in truth is the view that he arrived at then the decision is bad for want of legally sufficient reasons. It is manifest that Senior Immigration Judge Gleeson did not correct the error whichever way it is put.

Accordingly, in my judgment, grounds 1 and 2 are well founded. It is impossible to escape the conclusion that Immigration Judge Fisher determined the Article 8 proportionality issue at least by reference to an impermissible test of insurmountable obstacles. The applicable law is set out in Huang (paragraph 20), EB (Kosovo) (paragraph 12) and the subsequent Court of Appeal cases. Broadly the question is: can the spouse have reasonably been expected to follow the removed spouse to the country of removal?

In those circumstances, as it seems to me, Senior Immigration Judge Gleeson was wrong not hold that Immigration Judge Fisher's decision was flawed by an error of law and for that reason I would allow the appeal. I will consider the matter of relief shortly.

I will deal extremely briefly with the remaining grounds. Ground 3 was to the effect that, if Immigration Judge Fisher did decide that the wife could reasonably be expected to join the appellant in Togo, that was an irrational decision. There were, in my judgment, considerations going both ways here. On the one hand the wife, as I have indicated, has been here all her life with connections of property and other family members here. She does not speak the languages that are current in Togo. On the other hand, she is relatively young and in good health save for an unhappy question as to her ability to bear children. There are, in fact, no children in the family. She and the appellant married in the full knowledge that he had no settled right to stay in the UK at that time and his earlier asylum application, though subject to an outstanding appeal application, had been refused. It is, to my mind, by no means plain and obvious that a reasonable tribunal must have concluded that the wife’s family life with the appellant could not reasonably be enjoyed in Togo.

Ground 4 is that significant or even decisive weight should have been attached to the Secretary of State’s delay here -- something like three years -- in determining the application for leave to remain on the basis of the marriage. EB (Kosovo) describes (see in particular paragraphs 14 and 15) the effects of delay in Article 8 cases. Immigration Judge Fisher (paragraph 16) was well aware of what the House of Lords had said about this in EB (Kosovo), but considered that the appellant had acquiesced in the delay, at least to the extent that over the passage of time in question his representatives did no more than notify a change of representation and/or a change of address for the appellant himself. I do not think that ground 4 takes the matter further.

Lastly, ground 5 asserts that the immigration judge and the Senior Immigration Judge misapplied the Chikwamba case. The House of Lords there held (see paragraph 44 per Lord Brown) that “certainly in family cases involving children” an Article 8 appeal should rarely be dismissed merely on the ground that the appellant can apply from abroad for leave to enter. It is submitted that this reasoning should have been applied; but this is not a child case. There may be pressing things to say in reliance on the Chikwamba case: they need to be said, however, to a fact-finding tribunal.

For all those reasons, then, I would allow the appeal and, subject to my Lords’ views and any further submissions, would remit the case for a further second reconsideration hearing.

I agree.

I also agree.