Royal Courts of Justice
Strand,
London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE JACK
Between :
AC | Claimant |
- and - | |
THE IMMIGRATION APPEAL TRIBUNAL | Defendant |
-and- | |
SECRETARY OF STATE FOR THE HOME DEPARTMENT | Interested party |
(Transcript of the Handed Down Judgment of
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Nicholas Blake QC and Martin Soorjoo (instructed by Glazer Delmar) for the Claimant
Steven Kovats (instructed by Treasury Solicitor) for the Defendant
Judgment
As Approved by the Court
Crown Copyright ©
Mr Justice Jack:
This is an application to review a preliminary ruling of the Immigration Appeal Tribunal made on 22 August 2002. The Tribunal’s ruling was given in the course of an appeal by the Secretary of State from a decision of the adjudicator, delivered on 13 June 2002. The decision of the adjudicator appealed against was made in determination of an appeal under section 65 of the Immigration and Asylum Act 1999. The decision under appeal to the adjudicator was the decision of the Secretary of State made on 6 November 2001 refusing to revoke a deportation order made on 13 September 2001.
The application to this court raises the question as to what matters may be relied on by a section 65 appellant, in particular whether the appellant may rely on interference with the right to family life accorded by Article 8 of the European Convention to a family member other than the appellant. If the appellant may not rely on interference with the right to family life accorded to other family members, the issue then arises whether an adjudicator, or the Immigration Appeal Tribunal on appeal from an adjudicator, should nonetheless take into account the impact of the deportation decision on another family member such as a child of the appellant.
The claimant in this court and the successful appellant before the adjudicator is AC, a Turkish national. She came to the United Kingdom in 1995 and soon after married MA. On 3 August 1996 she gave birth to a daughter, S, who is now 6 years old. In 1997 she separated from her husband because of his violence, as she alleges. She took S with her. AC and MA have since divorced.
On 2 November 1998 (when S was 2 years old) AC was sentenced to imprisonment for 10 years for an offence of causing grievous bodily harm with intent to do grievous bodily harm. A recommendation was made for deportation. On appeal against sentence the period of imprisonment was reduced to 8 years but the recommendation for deportation remained. On 13 September 2001 an order was made by the Secretary of State for the deportation of AC. This must have been followed by a request on behalf of AC that the Secretary of State revoke the order. That was refused on 6 November 2001, and, as stated, it is this refusal which is the subject of appeal. I do not have a copy of the refusal. I take its date from the Home Office letter of 1 May 2002. On 22 April 2002 AC became entitled to release from prison on parole: but she continued to be detained under the power of the Secretary of State under paragraph 2 of Schedule 3 to the Immigration Act 1971 to detain her pending her deportation. The letter of 1 May 2002 was written in consequence of AC’s Solicitors’ letter of 16 April 2002 asking for her release from prison on compassionate grounds. The letter of 1 May 2002 set out a full consideration over 5 pages of the factors relating to the decision to deport AC including reference to her human rights and paragraph 364 of the Immigration Rules. By letter of 19 April 2002 the Secretary of State had refused to release AC from prison. At the date of this judgment she remains there.
When her mother was arrested, S was placed with foster parents. Later a residence order was made in favour of her father. Since February 2000 she has lived with him. She has maintained her relationship with her mother while her mother has been in prison by means of visits and telephone calls. It is said that a warm and loving relationship exists between them. It is accepted that ‘family life’ exists between them. The effect of AC’s deportation on her relationship with S was an important factor in the adjudicator’s decision allowing AC’s appeal under section 65.
It is next necessary to explain the proceedings before the Tribunal so far. The 22 August 2002 was fixed as the hearing date for the Secretary of State’s appeal. On that day counsel for AC and the Secretary of State attended prepared to argue the appeal. There also attended before the Tribunal counsel, Miss Gordon, who was instructed by solicitors to represent the interests of S. It is unclear from whom those solicitors were receiving their instructions. It was in consequence of submissions made by Miss Gordon that the Tribunal made a number of preliminary rulings in relation to the appeal. The submissions of Miss Gordon were supported by Mr Sorjoo on behalf of AC in so far as they related to the relevance of S’s human rights. I can summarise the preliminary rulings as follows:
S was not a party to the appeal (paragraphs 4 of the ruling); nor had S a right of appeal under section 65 (paragraph 6 of the ruling).
S had no right to intervene in the appeal (paragraph 12).
S had a right to contest the Secretary of State’s decision to deport her mother on the ground that it was an infringement of her family rights and contrary to Article 8 of the European Convention on Human Rights by making a claim to that effect before the Administrative Court as provided by section 7 of the Human Rights Act 1998 (enlarged from paragraph 14).
The appeal of AC under section 65 was to be determined by looking at the rights of AC to her family life under Article 8, and not by looking at S’s human right to a family life. S’s human rights did not require to be taken into account. This did not exclude evidence as to the mother/daughter relationship but that evidence would be examined in the light of AC’s rights (paragraph 26).
Counsel before me, Mr Nicholas Blake Q.C. for AC, and Mr Steven Kovats for the Secretary of State, agreed that this was a correct statement of the Tribunal’s rulings and that it was the fourth ruling, and only the fourth, which was in issue before me. I can make clear at this point that this judgment is not concerned with an examination of the rights of S under section 7 of the Human Rights Act.
The decision sought to be reviewed is identified in the claim form as follows:
‘Preliminary ruling of the Immigration Appeal Tribunal refusing to take account …. [of] the impact of the claimant’s removal from the United Kingdom on her daughter, [S].’ Mr Blake submitted that, in deciding whether to make or to revoke a deportation order, the Secretary of State was bound to consider the effect of the proposed deportation on the human rights of both AC and of S. He submitted that as between AC and S there was a single family life and that they each had the same right to that family life. He submitted that, like the Secretary of State, the adjudicator and the Tribunal on an appeal under section 65 had to take account of the rights of both mother and daughter under article 8. He submitted that, in any event, they had to examine the impact on both mother and daughter if AC were to be deported to Turkey.
The submissions of Mr Kovats on behalf of the Secretary of State were as follows:
On an appeal under section 65 the adjudicator and the Tribunal were concerned with the human rights of the appellant, here AC, and not with the human rights of any other family member, here S.
There was a single family life between AC and S.
It followed from (2) that the adjudicator and the Tribunal had to consider that family life and the potential impact of the proposed deportation on it, and hence its impact on both AC and on S.
On the facts of this case it appeared that the rights of S under Article 8 were no different to those of her mother: they were two sides of one coin. It was stated in paragraph 42 of the grounds for contesting the claim: ‘The importance to a mother of looking after her young daughter is the same as the importance to a young daughter of being looked after by her mother.’
If the Tribunal had held in paragraph 26 of its ruling that it should not take account of the potential impact on S of the proposed deportation, he did not seek to uphold the Tribunal. He submitted that the Tribunal had not so held.
Both sides were therefore agreed that the Tribunal should take account of the impact on S of a deportation of her mother. On the basis of this agreement, either the claim as stated in the claim form is misconceived because the Tribunal held as it is agreed it should have been, or that this aspect of the Tribunal's ruling should be quashed. Mr Blake and Mr Kovats were, however, opposed as to whether it was appropriate for the Tribunal (and the adjudicator and the Secretary of State earlier) to take into account the human rights of S.
In paragraph 26 of its ruling the Tribunal stated:
‘26. For those reasons, which we have set out at much too great length, we conclude that [S] has, as such, no interest in presenting her human rights in this appeal. It follows that when this appeal is determined on the merits, we should be concerned, of course, with the circumstances of the family as a whole, but not by looking at [S’s] right not to have her mother removed, if she is said to have such a right, but to look at the mother’s rights. We shall be concerned whether it is right to say that the mother’s removal infringes the mother’s human rights as a whole – including any right to be with [S].
Then in paragraph 28:
’28. No doubt when the appeal is heard, there will be evidence about the daughter’s position and the mother’s relationship with the daughter as it was at the date of the decision. We emphasise that we are not seeking to exclude evidence of such matters, but in a case where it is not suggested that the removal of the mother is, of itself, something which is necessarily inhibited by the daughter’s position, the daughter’s human rights do not fall to be taken into account at all.’
In reaching these conclusions the Tribunal intended to follow the starred determination of the Tribunal in Kehinde v Secretary of State (01/TH/2668). The essence of that decision was that in an appeal under section 65 the adjudicator or Tribunal is concerned only with the human rights of the appellant. The decision of the Tribunal on the facts was straightforward: the appellant had not established any substantial potential interference with his family life.
As I read the Tribunal’s decision in this case it is their intention to consider the relationship between S and her mother from the viewpoint of the mother’s right alone. The Tribunal has not said that it does not intend to consider the impact of a deportation on S: but in my view that follows from the passages I have quoted that it will not do so. If the Tribunal’s intention was to ignore S’s human rights as irrelevant but nonetheless to consider and give appropriate weight to the impact on her if her mother was deported, the ruling would have had no practical effect. The Tribunal must have thought that the ruling did have practical effect.
I conclude therefore that the Tribunal’s decision on this point is to be understood as it has been understood by AC’s advisers, and not as submitted by Mr Kovats. I therefore have to consider whether it is correct in law.
The starting point must be the wording of section 65. It is, however, important to put the section in its context in relation to the making of deportation orders and the decision-making process concerning them, and in the context of routes of appeal relating to deportation orders.
The power to make deportation orders is provided by section 5(1) of the Immigration Act 1971. A person who is not a British citizen is liable to deportation pursuant to an order made under section 5 on three grounds. The first is that the Secretary of State deems the deportation to be for the public good: section 3(5)(a) of the 1971 Act as amended. The second is that another member of the deportee’s family is to be deported: section 3(5)(b) as amended. The third is a court recommendation as here: section 3(6). Section 5(2) of the 1971 Act provides that a deportation order may at any time be revoked by a further order of the Secretary of State. Here the Secretary of State refused to exercise that power by his decision of 6 November 2001. It is this order which has been the subject of appeal.
Part 13 of the Immigration Rules relates to deportation. Paragraph 364 states the approach to be followed in considering whether deportation is the right course on the merits. The Secretary of State is to ‘take into account all relevant factors known to him’ including 8 specified factors, one of which is ‘compassionate circumstances’. There can be no doubt that the effect of the deportation on a child of the proposed deportee must be a relevant factor. That will particularly be so where, as here, the deportation will split mother and child. For S is in her father’s care, and he will remain in England. Paragraphs 390 to 395 of the Rules relate to applications for the revocation of deportation orders. By rule 390 an application is to be considered in the light of all the circumstances, specifically including compassionate circumstances. The approach to revocation may be rather different, because it may be assumed that the original order for deportation was justified: I refer to rule 391. Here the real complaint is that the original order should not have been made. The fact that the appeal here is against a refusal to revoke does not appear to have featured in the submissions and determinations thus far. That may well meet the justice of the case.
Mr Blake submitted in relation to deportation decisions that, where an issue arose as to interference with the right to family life provided by Article 8 of the European Convention, there were a number of sequential steps to be taken in the decision making process:
Was there ‘family life’ between the proposed deportee and another – here, between AC and S?
Would the deportation be an interference with that family life?
Was that interference in accordance with the law (in which was to be included European law as to applied as part of the law of England)?
Was the deportation to be made for the purpose of the prevention of crime or for another reason mentioned in article 8?
Was the decision to deport proportionate – that is to say, was it achieved by a proper balancing of the competing interests?
I have reached these five steps by combining Mr Blake’s written argument and his oral submissions. They were generally acceptable to Mr Kovats. Without accepting them as a definitive statement, I accept them for the purpose of this judgment. It is the last issue, proportionality or the balancing exercise, which requires the Secretary of State (and appeal bodies) to balance against the factors favouring deportation the factors against deportation, in particular the interference with family life which the deportation may cause.
As to the approach to be adopted by the Secretary of State in making a deportation decision I was referred to Samaroo v Secretary of State [2002] INLR 55. The Court of Appeal was there concerned with two appeals. In the first Mr Samaroo had been sentenced to 13 years in relation to cocaine importation. A deportation order was made under section 5(1) of the 1971 Act relying on section 3(5)(a) – conducive to the public good. After unsuccessful appeals Mr Samaroo applied for exceptional leave to remain citing his close family ties in the United Kingdom. Leave was refused. He applied for judicial review of that decision. On his appeal from the refusal of that application the Court of Appeal in the judgment of Dyson L.J. considered (1) the task for the decision maker in making a deportation decision, and (2) the role of the court on an application for judicial review of such a decision. On the first point Dyson L.J. concluded in paragraph 25 of his judgment:
‘25. I would therefore hold that in a case such as the present, where the legitimate aim [for example, the prevention of crime] cannot be achieved by alternative means less interfering with a Convention right, the task of the decision maker, when deciding whether to interfere with the right, is to strike a fair balance between the legitimate aim on the one hand, and the affected person’s Convention rights on the other.’
No question arose as to any distinction between the effect of the proposed deportation on Mr Samaroo and effect on members of his family. The court appeared to accept that the decision maker should take account of the effect of deportation on the family as a whole: see paragraphs 4 and 10, 37 and 38. In paragraph 40 there is a reference to the rights of Mr Samaroo and his family under Article 8. The case is a leading authority on the approach to be adopted by the decision maker and upon the role of the court when subjecting the decision to judicial review. The court was not concerned with an appeal under section 65.
Where a person is liable to deportation by reason of either of the two grounds contained in section 3(5) there is a right of appeal to an adjudicator against the decision to deport, which is provided by section 63 (1) of the 1999 Act. There is no right of appeal given by that section where the ground for the order is a recommendation made by a criminal court as is the case here. In that situation the only avenue of appeal is section 65. Where the decision which it is desired to appeal is the Secretary of State’s refusal to revoke a deportation order in exercise of his power under section 5(2) of the 1971 Act, a right of appeal to an adjudicator is given by section 63(1)(b) of the 1999 Act. But section 64(3) provides that this right of appeal may not be exercised while the would-be appellant is still in the United Kingdom. So the only right of appeal open to AC is under section 65.
It is important to observe these alternative provisions for an appeal in the context that the rights of appeal provided by section 63(1) set no limits on the grounds of appeal, whereas section 65 is specifically related to breach of human rights. I will revert to this.
I should mention in passing that in the adjudicator’s determination of AC’s appeal it was stated that the appeal was brought under section 69(4)(b) of the 1999 Act. That section provides an appeal where removal following a refusal to revoke a deportation order would be contrary to the Refugee Convention and so covers appeals relating to asylum. The adjudicator dismissed AC’s appeal under section 69(4)(b) but he allowed the appeal “on human rights grounds”, which I understand to be a reference to section 65.
Against this background I can come to the wording of section 65. So far as material it provides:
65(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person’s entitlement to enter or remain in the United Kingdom, … acted in breach of his human rights may appeal to an adjudicator against that decision ….. .
For the purposes of this Part –
….
an authority acts in breach of a person’s human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.
Subsection (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration acts relating to the appellant’s entitlement to enter or remain in the United Kingdom, …acted in breach of the appellant’s human rights.
The adjudicator, or the Tribunal, has jurisdiction to consider the question.
If the adjudicator, or the tribunal, decides that the authority concerned –
….
acted in breach of the appellant’s human rights,
the appeal may be allowed … .
…
“Authority” means –
the Secretary of State;
(b), (c) … .
Section 65 makes plain that an appeal under it is on the ground of a breach of the appellant’s human rights and that this is the question to be examined and that this is the ground on which the appeal may be allowed. The appeal is not concerned with the human rights of others. To that the proviso must be added that the human rights of others may impinge on the human rights of the appellant. It would therefore be more complete to say that appeals under section 65 are directly concerned only with the human rights of the appellant, but may become concerned with the human rights of others in so far as they impinge on the human rights of the appellant. I mention that by an amendment the section also covers racial discrimination: that has no relevance here.
I was referred to paragraph 21 in Part III of Schedule 4 to the 1999 Act, headed ‘Determination of Appeals’ (which is given effect to by section 58(4) of the Act). The relevant words of the paragraph are:
21(1) On an appeal to him under Part IV, an adjudicator must allow the appeal if he considers –
that the decision or action against which the appeal is brought was not in accordance with the law or any immigration rules applicable to the case, or
if the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently,
but must otherwise dismiss the appeal.
Sub-paragraph (1) is subject to … any restriction on the grounds of appeal.
It is stated in Macdonald’s Immigration Law and Practice, 5th. Edition, paragraph 8.73 that the grounds set out in paragraph 21(1) are additional to the human rights grounds where there is an appeal under section 65. That will be so where the appeal is provided by a provision other than section 65 and the human rights grounds are brought in by section 65(3). In my view, however, where the right of appeal is provided by section 65(1), as here, there is a restriction on the grounds of appeal within the meaning of paragraph 21(2). The restriction is provided by section 65(1) and (5), which restricts the grounds of the appeal to breaches of the appellant’s human rights, and restricts the grounds on which the appeal may be allowed. The limited right of appeal under section 65 may be contrasted in this respect with the right of appeal provided by section 63(1).
It is next necessary to look briefly to section 6(1) of the Human Rights Act 1998, which is referred to in section 65(2)(b) of the 1999 Act. It simply provides:
6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
The Convention right in question here is that provided by Article 8 of the Convention:
Everyone has a right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The issue of Article 8 rights in the context of deportation decisions has been recently considered by the European Court. In Boultif v Switzerland, 2 August 2001, 54273/00, 33 EHRR 1179, the applicant was Algerian. He was married to a Swiss. There were no children. An order was made refusing to renew his permit to reside in Switzerland after he had committed a number of criminal offences. In paragraph 48 of the Court’s judgment it was stated:
‘48. The Court has only to a limited extent decided cases where the main obstacle to expulsion is the difficulties for the spouses to stay together and in particular for a spouse and/or children to live in the other’s country of origin. It is therefore called upon to establish guiding principles in order to examine whether the measure was necessary in a democratic society.
In assessing the criteria in such a case, the Court will consider the nature and seriousness of the offence committed by the applicant; the length of the applicant’s stay in the country from which he is going to be expelled, the time elapsed since the offence was committed as well as the applicant’s conduct in that period; the nationalities of the various persons concerned; the applicant’s family situation, such as the length of the marriage; and other factors expressing the effectiveness of a couple’s family life; whether the spouse knew of the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage and if so, their age. Not least the Court will also consider the seriousness of the difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a person might face certain difficulties in accompanying his or her spouse cannot in itself exclude an expulsion.’
The Court concluded in paragraph that the wife could not be expected to follow her husband to Algeria. It then reached its determination as follows:
‘The Court considers that the applicant has been subjected to a serious impediment to establish family life, since it is practically impossible for him to live his family life outside Switzerland. On the other hand, when the Swiss authorities decided to refuse his continuing stay in Switzerland, the applicant only presented a comparatively limited danger to public order. The Court is therefore of the opinion that the interference was not proportionate to the aim pursued.’
The principles set out in Boultif were applied by the European Court in Amrollahi v Denmark, 11 July 2002, 56811/00. There the applicant was Iranian. He had married a Danish woman. There was one child of their union at the time of the order expelling him from Denmark. That order was made because he was convicted of trafficking in heroin. A second child was born later. There was also a child of the mother from a previous relationship, which had become a child of the family. In its judgment the Court stated in paragraph 35:
‘35. In cases where the main obstacle to expulsion is the difficulties for the spouses to stay together and in particular for a spouse and/or children to live in the country of origin of the person to be expelled, the guiding principles in order to examine whether the measure was necessary in a democratic society have been established by the Court as follows…. .’
Then followed a repetition of the second paragraph of paragraph 48 in Boultif quoted above. In paragraphs 39 to 41 of its judgment the Court considered the factual situation. It concluded that to live in Iran would cause the wife and children serious difficulties. There was also the child from the wife’s former relationship, who was not prepared to move to Iran. The Court reached its determination as follows:
‘43. Accordingly, as consequence of the applicant’s permanent expulsion from Denmark the family will be separated, since it is de facto impossible for them to continue their family life outside Denmark.
In the light of the above elements, the Court considers that the expulsion of the applicant to Iran would be disproportionate to the aims pursued. The implementation of the expulsion would accordingly be in breach of Article 8 of the convention.’
I was also referred to the earlier case of Ciliz v The Nederlands,11 July 2000, 29192/95. The European Court was there concerned with a Turkish national who was faced with expulsion from Holland following the expiry of his residence permit. He had a son from a former marriage with whom he had maintained some contact. The decision to expel him was taken while his application to the Dutch court for access was still pending. The Court held that the decision-making process had not sufficiently protected the applicant’s interests are safeguarded by Article 8. I do not find this authority of any real help.
Where two persons, husband and wife, parent and child, have a ‘family life’, there will be one relationship between them, which constitutes that ‘family life’. The relationship has different consequences for the individuals party to it. Likewise the impact of events on the relationship will have different consequences for each individual. That follows from their individuality. The consequences for a mother of losing contact with her child will be quite different to the consequences for the child of losing her mother. That is in part because one is a child of a particular age and development whereas the other is an adult. It is also because the relationship of child to mother is not the same as that of mother to child. There will be those differences even where the relationship is equally strong on either side. But it may not be equally strong. Thus it is possible that a mother might be relatively indifferent to her child, while the child very much needs its mother. I do not suggest that this is the case here, but it further demonstrates that the position of the two cannot simply be equated. It is important also to point out the following. If a child will be distressed, perhaps harmed, by its separation from its mother, the impact of that on the mother is something to be taken account of in considering the mother’s position. In that way the child’s position has its impact on the mother’s position. These distinctions require no deep knowledge of family relationships. If authority is needed, it may be found in the judgment of Swinton Thomas L.J. in R v Secretary of State ex parte Gangadeen [1998] INLR 206 at 229, where he underlines the differences between the interests of a child and those of its parents.
In my judgment, where in a deportation case an interference with family life is under consideration in the context of the deportee’s right to freedom from interference with the exercise of family life under Article 8, it is right to consider and take into account the effect of the interference on all those sharing the family life in question, and not simply the effect upon the individual who is subject to possible deportation. I accept that this question was not specifically addressed by the European Court in either Boultif or Amrollahi. Nonetheless it is consistent with the manner in which the European Court expressed itself in those cases and with its approach. 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.
If what is stated in the last paragraph is right, it applies generally and not simply in the context of section 65. In the context of section 65, however, it has particular advantages. It means that the impact of the decision on other family members can be taken account of under section 65. This may avoid the need for other proceedings in which the rights of those family members can be asserted. It also means that the adjudicator and the Appeal Tribunal carry out the same task in relation to the impact on family life as did the Secretary of State in making the decision appealed against. Otherwise, to take the facts of this case as an example, the impact on S would be relevant to the decision of the Secretary of State but irrelevant and to be removed from the balancing exercise on the appeal under section 65.
Mr Blake submitted that there was another way in which the impact on S would here be relevant on appeal under section 65. It was this. Article 8.2 requires the interference to be in ‘accordance with the law’. He submitted that it would not be in accordance with the law if due account had not been taken of the effect of the decision on S. For rule 364 and the general law required the Secretary of State to take account of the impact on S as a relevant consideration. (Mr Blake did not refer to the rules relating to revocation.) It is however plain from decisions of the European Court that ‘in accordance with the law’ in Article 8(2) has a particular meaning. It means that the act of interference was empowered by a provision of the law in question. Here the relevant provisions are those of the 1971 Act relating to deportation. I refer to paragraph 42 of the decision of the European Court in Boultif, to paragraphs 29 and 30 of the decision in Amrollahi¸ and to Al-Nashif v Bulgaria,20 June 2002, 50963/99 at paragraphs 117 to 128. Thus in Boultif the Court held that the interference was in accordance with Swiss law (which included the provision that the expulsion must appear appropriate in view of the entire circumstances) but nonetheless held that the decision to expel was an unjustified interference with the right to family life because it was disproportionate.
Mr Blake further submitted that, if the decision to deport here involved an unlawful interference with S’s human rights, then the decision was unlawful. Whether or not the interference with S’s rights would be lawful or unlawful must depend primarily upon proportionality. I am concerned with an appeal under section 65, which I have held is restricted to think the human rights of the appellant, AC. I think that, if Mr Blake’s argument is to assist him in that regard he has to say, that because the decision infringes S’s rights, it is an interference with AC’s rights which is not ‘in accordance with the law’ for the purpose of Article 8(2). This submission therefore does not add to his submission considered in the previous paragraph, and it fails for the same reason.
In addition to the case of Kehinde I was referred to three further decisions of the Tribunal, Met Sula v Home Secretary [2002] UKIAT 00295, Martens v Secretary of State and Home Secretary v Beqiri [2002] UKIAT 00725. On its facts Kehinde was a straightforward decision. The appellant relied on various relationships in opposing the order for deportation. They were found to be without real substance. The Tribunal held that on an appeal under section 65 it was only the human rights of the appellant which fell for consideration. That is correct. What does not follow is that the impact of the deportation on others with whom the proposed deportee has a family relationship is to be ignored. For the reasons I have set out, it is a factor to be taken account of in the balancing exercise. The Tribunal in Met Sula had to consider various grounds of appeal. It may be that, when it came to the human rights appeal, the Tribunal misunderstood the ruling in Kehinde. It had to consider the effect of the Article 3 rights of the appellant’s wife. I have not heard argument as to the correctness of the approach with it took to the particular situation before it and it does not require consideration here. In Martens the appellant was facing deportation to Germany consequent on his conviction for fraud. The Tribunal considered the position of the family members generally before holding that the decision to deport was not disproportionate. In Beqiri the Tribunal held that ‘The consistent approach of the European Court of Human Rights has been to treat the balancing exercise to be conducted under Article 8 as an inclusive one in which all relevant circumstances are to be taken into account.’ It may be that the Tribunal had in mind authorities in addition to those which we were cited to me.
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 account of the impact of the proposed deportation on the family life of any person with whom the appellant has established a family life.
This case has until this judgment proceeded using the full names of AC, S and S’s father. In order that S should not be identified there will be an appropriate order under section 39 of the Children and Young Persons Act 1933 as amended.