UE (Nigeria) & Ors v Secretary of state for the Home department

This appeal raises an interesting and not unimportant point about the factors relevant to an assessment of proportionality in an Article 8 immigration case. None of the other grounds of appeal are being pursued.

The appeal comes from the Asylum and Immigration Tribunal (“the AIT”), which on the 13 February 2009 dismissed the appellants’ appeals against the Secretary of State's decision to refuse them leave to remain and to issue removal notices. That decision by the AIT was on a reconsideration, as I shall describe.

There are six appellants, a husband and wife and their four children, all of them being citizens of Nigeria. They first arrived in the United Kingdom in 1996, the father having leave to enter for employment purposes until 8 October 1997. Applications to remain beyond that date were refused and they left the United Kingdom in July 1999 and travelled to Ireland. They returned from there in August 2002. They then made applications for indefinite leave to remain in March 2005 and January 2006 outside the Immigration Rules but were refused on 28 May 2008 and notices of removal were issued.

Their appeals came first before Immigration Judge Dean in September 2008. All the children were by that date aged 18 or over. Their appeals relied upon their removal constituting a breach of their rights under Article 8 of the European Convention on Human Rights ("the ECHR"). The Immigration Judge, however, found that it would not amount to such a breach. Reconsideration was ordered on the basis that there were errors of law in her decision and fresh findings of fact were required on all issues. That reconsideration was carried out by Immigration Judge Youngerwood, whose determination is the one now under challenge. Unhappily the Immigration Judge did not have the benefit of any representative of the Secretary of State being present on that latter occasion.

The Immigration Judge found that the appellants had been lawfully in this country for about one year up to October 1997, but they had then remained without any legal status until July 1999 when they went to Ireland where they stayed for three years, returning to this country without leave in August 2002, and that the authorities were hardly in a position to know of their presence here until their applications in March 2005. The judge found that their right to family life under Article 8 was really only relevant to the first two appellants, the husband and wife, because the children were not merely adults but had shown a significant amount of independence and achievement. Removal of the father and mother to Nigeria would not interfere with their right to family life because they would be returned there together.

So the judge focussed upon the right to private life under Article 8, which he went on to consider in respect of each appellant. He found that Article 8 was engaged in relation to the right to private life. He also found that the interference with that right was in accordance with the law and was necessary for the promotion of immigration control. Consequently he regarded the ultimate question as being one of proportionality, what he described as "the balancing exercise". On that he took into account the fact that there had been a delay of about three years by the Home Office in dealing with the appellants' applications for leave to remain, though he noted also that the appellants appeared to have acquiesced in that delay. He took into account the fact that the appellants had known during the period since 2002 that they had no legal status in the United Kingdom and had taken no steps to bring themselves to the attention of the authorities for two-and-a-half years after their return from Ireland. In addition he took account of the effect of removal on each of the appellants in terms of their individual activities: in one case as a writer, poet and performer; in other cases on their educational progress and their work and cultural activities.

But what the judge was not prepared to put into the balancing exercise was the value of the appellants’ various activities to the community in the United Kingdom. In reliance upon a decision of this court in MA (Afghanistan) v SSHD [2006] EWCA Civ 1440, he held that those activities in the community were only relevant when considering the impact of removal on the appellants themselves. At paragraph 45 of his decision he said this:

It is that part of the decision which gives rise to the real issue in this appeal. It may be expressed thus. When the decision-maker is carrying out the balancing exercise required to determine whether removal is proportionate in an Article 8 case, is it relevant on any basis that the person in question is of value to the community in the United Kingdom, a value of which that community would be deprived if he were to be removed?

It should be noted that this is a different question from asking what would be the impact on the individual in question of removing him, even though that question also would involve considering the extent to which he may have been involved in community activities. That latter question is directed at ascertaining the strength of the individual's own ties to this country and the degree, consequently, of private life which he has established here, whether in terms of friends, education, work or leisure activities. That latter question considers the extent to which his right to private life would be interfered with by removal, an issue which arises both under Article 8(1) and then if there would be such interference again under Article 8(2) as part of the balancing exercise. But the first question, that now under scrutiny, is dealing with the effect of his removal on the community in the United Kingdom and, if relevant at all, is exclusively an Article 8(2) question.

On behalf of these appellants Mr Knafler QC submits that there is ample authority establishing that what is required in the proportionality exercise is a broad exercise of striking a fair balance between the individual and the interests of the community. He relies on decisions in R (Razgar) v SSHD [2004] UKHL 27, [2004] 2 AC 368 and Huang v SSHD [2007] UKHL 11 [2007 ] 2 AC 167. It is submitted that there is no reason why the interests of the community should be circumscribed in any way or confined solely to the maintenance of firm immigration control. There may be additional factors which strengthen the public interest in removal but equally there may be additional factors which point the other way. Mr Knafler also refers to the House of Lords decision in R v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1986] 1 WLR 910 where it was held that in deportation cases the effect on third parties of the deportation, including any loss of value to parts of the community in this country, was a relevant consideration to the exercise of discretion under the Immigration Rules. It is argued now that if those consequences of removal are not reflected in an Article 8 decision, then the interference with private life would not be "in accordance with the law" as required by Article 8(2).

But the main thrust of the appellants' case goes to the need for the proportionality exercise to take account of the loss of benefit to the public. For the Secretary of State it is submitted that the public interest in Article 8 cases is confined to those interests of the state which go to justify the interference with the individuals' Article 8 rights, that is to say, only those factors which in an immigration case relate to the need for his removal are to be reflected in the assessment of the public interest. One must look solely, contends Mr Auburn on behalf of the respondent, at the legitimate aim being pursued by the proposed removal and the factors which are relevant to that, which in immigration cases means the maintenance of firm immigration control. The rights conferred on individuals under the European Convention, he argues, are not a reward for good behaviour or for their contribution to society but are intrinsic. Such matters as delay by the Home Office in dealing with an application may sometimes be relevant, but only because they relate directly to immigration control and not because they have any freestanding status. Other than in such cases a person should not get less protection for his human rights because he is of less value to the community.

In addition the Secretary of State contends that this court is bound by previous Court of Appeal authority in RU (Sri Lanka) v SSHD [2008] EWCA Civ 753, which is consistent with the lead judgment in MA (Afghanistan), the 2006 decision referred to by Immigration Judge Youngerwood. Consequently, in accordance with the well known principles in Young v Bristol Aeroplane Company [1944] KB 718, this court, it is said, is not free to hold that value to the community is relevant to the public interest in Article 8 cases. Mr Auburn does accept that in RU (Sri Lanka) the court expressed itself in language which did not refer to the loss of value to the community as a possible part of the public interest aspect of proportionality. But he refers also to the case JO (Uganda ) v SSHD [2010] EWCA Civ 10 where the court emphasised the need for any factors taken into account on the public interest side of the balance to relate to the legitimate aim being pursued, which in removal cases is normally that of maintaining effective immigration control.

Before I come to those cases and to Bakhtaur Singh, all of which sought to consider the specific matter of community value, it is perhaps helpful to bear in mind that this issue is part of the wider one concerning the proper legal approach to proportionality under the ECHR, one which is not confined to Article 8 issues. The Strasbourg court has repeatedly described the correct approach in broad terms. If one goes back to one of the earlier cases, that of Sporrong v Sweden [1982] 5 EHRR 85 one finds this at paragraph 69:

An almost identical passage appears at paragraph 89 of the court's later decision in Soering v UK [1989] 11 EHRR 439, where a search for that "fair balance" is said to be inherent in the whole of the Convention. Nor have the English courts in general treated the concept in a restrictive way. There are no less than three recent decisions of the House of Lords which so indicate. In Razgar, an Article 8 case about an asylum seeker, Lord Bingham of Cornhill, with whom the majority of the House agreed, set out five questions which arise when removal is being resisted on Article 8 grounds, the fifth concerning the issue of proportionality. At paragraph 20 he said:

That passage was then cited with approval in a unanimous judgment of the House of Lords in Huang at paragraph 19, where the point was made that there is an overriding requirement of the need to balance the interests of society with those of individuals and groups.

The third recent House of Lords decision is that of EB (Kosovo) v SSHD [2008] UKHL 41, [2008] 3 WLR 178 where at paragraph 11 Lord Bingham referred to decisions under Article 8 as involving "the weighing of multifarious considerations " and he added later:

At paragraph 23 he approved a dictum of Laws LJ in an earlier case that proportionality "requires a judgment in the round". Lord Bingham's approach was endorsed by the majority of the House.

The decision of this court in JO (Uganda) does indeed make the point that the matters of public interest to be taken into account should be ones which relate to the legitimate aim being pursued in immigration cases, namely that of maintaining effective immigration control. But that in itself raises the question of what matters are relevant to that aim. The House of Lords decisions to which I have just referred indicate that one should not seek to answer that question in too narrow or restrictive a fashion. For example, if the immigrant has a history of fathering illegitimate children in this country who then become a burden on the public purse, that would seem to me to be a consideration relevant to the need for effective immigration control. It is something which enhances the importance of immigration control being effectively exercised in that individual case. But by the same token a public interest in the retention in this country of someone who is of considerable value to the community can properly be seen as relevant to the exercise of immigration control. It goes to the weight to be attached to that side of the scales in the proportionality exercise. The weight to be attached to the public interest in removal of the person in question is not some fixed immutable amount. It may vary from case to case, and where someone is of great value to the community in this country, there exists a factor which reduces the importance of maintaining firm immigration control in his individual case. The weight to be given to that aim is correspondingly less.

None of this means that the individual is being rewarded for good behaviour. It goes instead to the strength of the public interest in his removal and how much weight should be attached to the need to maintain effective immigration control in his particular case. That is an approach which this court has endorsed in AS (Pakistan) v SSHD[2008] EWCA Civ 1118, an Article 8 immigration case. At paragraph 22 Moore-Bick LJ, with whom Rimer LJ agreed, said this:

Now, the court there was not dealing with a loss of value to the community but with how far the appellant's criminal record made it appropriate to deport him, bearing in mind that he had been a model prisoner while in prison. Even so, it demonstrates the need in Article 8 cases to take a broad approach to the assessment of the public interest.

Also of relevance on this point is the decision which Mr Knafler relies on of Bakhtaur Singh. That is a House of Lords decision which antedates by some time the passage of the Human Rights Act 1998 and the incorporation of the ECHR into our own domestic law. Nonetheless it is of relevance. There the House of Lords unanimously held that when deportation was being considered under the Immigration Act 1971 and the Immigration Rules, so that there was a requirement to balance "the public interest" against any compassionate circumstances of the case, both the Secretary of State and the appellate bodies had to include amongst the relevant circumstances the value to the community in the United Kingdom of the individual in question. Lord Bridge of Harwich, who gave the only reasoned judgment, referred at page 917 C-E to a number of examples of persons with such value, such as an essential worker in a company engaged in a successful export business or a social worker upon whom a local community depended or a scientific research worker engaged on research of public importance.

That of course was not an Article 8 case, but it would be surprising, to my mind, if the balancing exercise required under Article 8 to determine the issue of proportionality were to be seen as narrower in scope than that involved in the exercise of the statutory discretion and, in particular, if the concept of the "public interest" of relevance to immigration control were to be more tightly defined in the former than the latter.

So I can accept Mr Auburn's proposition that the public interest in question has to be related to the legitimate aim of maintaining effective immigration control so long as a broad approach is taken towards what is seen as being relevant to that aim. The fact that an immigrant is of value to the community in this country seems to me to be capable in principle of coming within the scope of that approach.

Consequently, as a matter of principle, I can see no reason why the fact that the community in this country or part of it would lose something of value were these appellants to be removed should be seen as irrelevant to an assessment of the extent of the public interest in removal. If not bound by authority I would so find.

That then leads me to the authorities relied on by the Secretary of State. The first in time, MA (Afghanistan), is not said to be binding on this court and that is clearly right. It is a decision of a two-judge court where there was no agreement between the two judges on this issue. Pill LJ observed that the matter had not been fully argued before the court, but he then added that the value of the appellant's services to the community would not normally "be a substantial factor" to be considered. He went on to say in the same paragraph that he did not "exclude the possibility that it may become a consideration" (paragraph 23). It appears that even those observations, therefore, went more to the weight to be attached to this factor than to its relevance or irrelevance.

The other member of the court, Moses LJ, declined to reach any concluded view on this issue. He stated at paragraph 28:

The other decision upon which Mr Auburn relies and which is said to be binding upon us on this point is RU (Sri Lanka) . If it is binding upon us, then of course that will suffice to determine this issue under the long-established principles in Young v Bristol Aeroplane Company. That will depend on what the ratio decidendi of RU (Sri Lanka) actually was. It is necessary, therefore, to look at that decision in RU (Sri Lanka) in a little detail. It was a reconsideration case where the first immigration judge had held that the removal of the applicant would breach his Article 8 rights, this being an exceptional case because of the lengthy delay by the Home Office in dealing with the claim for asylum. The Immigration Judge said that the applicant had not acquiesced in the delay. The AIT then held that there were material errors of law in that decision and another immigration judge reconsidered the appeal. The second immigration judge found that the interference with the applicant's Article 8 rights would be proportionate.

The appeal to this court challenged first the finding that there had been an error of law by the first Immigration Judge, but Scott Baker LJ, with whom the other two members of the court agreed, held that "the fundamental error made by the judge was in concluding that the appellant had not acquiesced in the delay". The Immigration Judge, he said, could not have reached that conclusion if he had taken into account the factual evidence on this (paragraph 25). That part of the case's ratio has no bearing on this present appeal.

The second issue in the case concerned whether the second immigration judge had erred in law in dismissing the appeal. That judge had found that the applicant had a private life in the United Kingdom with which removal would interfere, but she emphasised that the private life which he had forged here had been forged in the full knowledge that his immigration status was precarious and she found that the interference with his Article 8 rights would be proportionate. That approach was challenged by RU in this court, but the challenge failed. Scott Baker LJ looked in detail at the authorities on delay by the Secretary of State. He concluded at paragraph 39 that the second immigration judge:

There again, the decision on that second issue has no bearing on those in the present appeal. But Scott Baker LJ then went on to add this at paragraph 40:

Richards LJ simply agreed with Scott Baker LJ, but Pill LJ added his specific agreement with paragraph 40, again using the expression "a freestanding factor".

For my part I do not find it easy to understand what is meant by the words "a freestanding factor", used by both Scott Baker LJ and Pill LJ. It may be that they are intending to indicate that the value to the community has no independent significance aside from the issue of the public interest and aside from the issue of the impact on the individual's right to a private life. If that is so, I have no difficulty in accepting those observations, since the correct approach in my judgment is to consider whether the public interest in the removal of that person is reduced because of the loss of some benefit to the community which would result. In other words it is a factor which goes to the public interest side of the balance. In that sense it is not freestanding but simply an element in the assessment in the public interest which is seeking to achieve the maintenance of effective immigration control.

So if that is what was meant by those words in RU (Sri Lanka), then there is no difficulty. But it may be, as the Secretary of State contends, that the court there was going further. Of course if that is right, that degree of lack of clarity in the meaning is itself an obstacle to this passage being treated as the or a ratio decidendi of the case. As Lord Reid pointed out many years ago in Midlands Silicones v Scrutton [1962] AC 446 at 476, obscurity is an impediment to a passage being treated as a ratio. But if the Secretary of State is right and this passage means that a loss of value is to be disregarded when assessing the public interest in pursuing the legitimate aim, then one does have to ask whether it forms part of the ratio of the case. For my part I find it difficult to see how this was an issue in the case for the court to decide. We have had the benefit of seeing the grounds of appeal in that case. The appellant was not arguing that the second immigration judge had erred in law in failing to take account of the appellant's positive contribution to the community when assessing the public interest aspect of proportionality. There is a passing reference to that contribution, but it is not advanced as part of the public interest assessment. That may explain the references in the judgment to a freestanding factor.

But it does not seem that the court was being asked by the parties to decide whether the loss of such a positive contribution to the community could properly be taken into account in the assessment of the public interest. It follows that, if the court was pronouncing upon that, it was dealing with an issue which had not been raised and its views will not form part of the ratio. Of course, even then, the views expressed deserve respect and careful consideration, but one observes that the reasoning is brief, with no reference to authority on this point and the meaning, as I have indicated, somewhat uncertain.

For my part, therefore, I conclude that it is open to this court to find that the loss of such public benefit is capable of being a relevant consideration when assessing the public interest side of proportionality under Article 8 and as a matter of principle I do so find. That is where this aspect comes in to the proportionality exercise. Given that conclusion, it is unnecessary for me to deal with Mr Knafler's argument about whether removal would fail to be "in accordance with the law".

I would, however, before concluding, emphasise that, while this factor of public value can be relevant in the way which I have described, I would expect it to make a difference to the outcome of immigration cases only in a relatively few instances where the positive contribution to this country is very significant, perhaps of the kind referred to by Lord Bridge in Bakhtaur Singh. The main element in the public interest will normally consist of the need to maintain a firm policy of immigration control, and little will go to undermine that. It will be unusual for the loss of benefit to the community to tip the scales in an applicant's favour, but of course all will depend upon the detailed facts which exist in the individual case and in particular on the extent of the interference with his private and/or family life.

In the present case I would be surprised if a consideration of these matters excluded by the second immigration judge were ultimately to make a difference to the judgment on proportionality, but it might. I cannot be confident that it would not and, that being so, I would allow this appeal and remit the case to the Upper Tribunal.

I agree that this appeal should be allowed and the matter be remitted to the Upper Tribunal for a further determination. Since I was a member of the constitution of the court in a number of the cases to which reference has been made in argument, I wish to add a few words on how I see the issue of contribution to the community, though there is very little between myself and Sir David Keene on this and nothing that affects the outcome of the present appeal.

The Article 8 balancing exercise is not necessarily co-extensive with the exercise of the discretion to remove under the immigration statutes and Immigration Rules. In practice they will often involve the same considerations, but they need not do so. One cannot say that, because a factor is relevant to the extremely broad discretion under the statute or rules as vouchsafed by the decision in ex parte Bakhtaur Singh [1986] 1 WLR 910, it must also form part of the Article 8 exercise. The issue under Article 8 is the specific issue of whether interference with private life is proportionate to the legitimate aim pursued. I refer to “private life” because that is what we are concerned with in this case. A broad balancing exercise is required, but one needs to identify with some care what is being balanced against what. On one side of the balance is the legitimate aim in pursuit of which removal is to be effected. The need to focus on the specific aim being pursued is something to which I referred in my judgment in RO (Uganda) and JT (Ivory Coast) [2010] EWCA Civ 10, in particular at paragraph 30. In the present case, as the Secretary of State's decision letters make clear, the aim relied on is the maintenance of effective immigration control. That is what goes into the balance as weighing in favour of removal. On the other side of the balance, weighing against removal, is the individual's right to respect for private life.

Factors are relevant to the assessment of proportionality under Article 8 in such a case only in so far as they impact either on the weight to be given to the maintenance of effective immigration control or on the weight to be given to the individual's private life. It is not a question of dropping into the scales all aspects of the public interest for or against removal or anything that might be relevant to the exercise of a discretion under the statute or Immigration Rules. It is a more specific and targeted exercise.

For those reasons I consider that contribution to the community is not a freestanding or stand-alone factor to be put into the Article 8 balance as an independent consideration in its own right. It can affect the balance only in so far as it is relevant to the legitimate aim or the private life claim.

It is common ground that community activities may affect the strength of the private life claim, and this was something that the Immigration Judge had properly in mind in his determination.

As to the other side of the balance, in MA (Afghanistan) [2006] EWCA Civ 1440 at paragraph 28 Moses LJ suggested that "It may well be that the benefit of the community of the work performed by the applicant diminishes the weight to be given to the public interest in immigration control." So far as I can recall and can discern from the material we have been shown, that judgment was not drawn to the court's attention, and the possibility of contribution to the community being factored into the analysis in that way was not explored or even raised, in RU (Sri Lanka) [2008] EWCA Civ 753. Faced with the issue in the present case, however, I would accept that the matters relied on here by way of contribution to the community are indeed capable in principle of affecting the weight to be given to the maintenance of effective immigration control. I agree that that public interest aim can and should be viewed sufficiently widely and flexibly to accommodate such considerations. But they do not have as obvious a bearing as, for example, delay by the Secretary of State in processing a claim or the applicability of a specific immigration policy favouring the applicant, and I doubt if they would in practice carry a lot of weight even on the relatively favourable facts of the present case. But I do agree that they should not be excluded from consideration altogether.

I also agree that the authorities do not stand in the way of that conclusion. On its face, RU (Sri Lanka) expressly precludes reliance on contribution to the community as a freestanding factor. The possibility that contribution to the community could be relevant in other ways was left open by the decision. Scott Baker LJ, with whom I agreed, dealt by way of example, at paragraph 40, with its possible relevance to private life but he did not say that that was its only possible relevance. Pill LJ said in terms, at paragraph 43, that it could be relevant in other ways. One can certainly speculate what conclusion might have been reached if the case had been argued on the basis that contribution to the community should be considered not as a freestanding factor but as something that tended to reduce the weight to be placed on the public interest in effective immigration control; but the case was not in fact argued on that basis, the court did not rule on that basis and there was no binding decision on the point.

It follows that I agree that the Immigration Judge was wrong in his approach to the issue of contribution to the community. I doubt whether, if properly taken into account, it would have made any difference to his ultimate conclusion, but I cannot say that he would clearly have reached the same conclusion in any event. He made a lot of this issue, suggesting that in his mind it was an important one. I therefore agree with the disposal proposed by Keene LJ.

I too would allow the appeal and remit the matter back for further consideration. Insofar as a difference of emphasis can be detected in the judgments of my Lords, their dicta seem to me with respect to be obiter and I prefer therefore to say no more about it.