PO (interests of the state Article 8) Nigeria [2006] UKAIT THE IMMIGRATION ACTS. On 27 June October Before

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1 Asylum and Immigration Tribunal PO (interests of the state Article 8) Nigeria [2006] UKAIT THE IMMIGRATION ACTS Heard at Field House Determination Promulgated On 27 June October 2006 Before Senior Immigration Judge Storey Ms S S Ramsumair Mrs J Harris Between Appellant and SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: For the Appellant: Mr A N Ikie, Solicitor, from Ikie Solicitors For the Respondent: Ms Lee Ong, Home Office Presenting Officer When addressing the issue of proportionality (Lord Bingham s question 5 in Razgar [2004] UKHL 27) it is only in very limited circumstances that the interests of the state and wider community in the maintenance of effective immigration control will not carry a heavy weight. Whilst the interests of the state and wider community do not carry a fixed weight (GS (Article 9 public interest not a fixity) Serbia and Montenegro [2005] UKIAT 00121), the only factors that might justify heavy weight not being given are likely to be where the state has shown by its own action or inaction that immigration control considerations require modification e.g. where it has adopted but not applied a 1

2 policy to allow certain categories otherwise subject to strict immigration control exceptional leave to remain. DETERMINATION AND REASONS 1) The appellant is a citizen of Nigeria. On 24 January 2002, in a decision taken under the Immigration and Asylum Act 1999, the respondent refused her application to vary leave to remain under paragraph 322(1) with reference to paragraphs of HC 395 as amended. The appellant's appeal was heard by the Adjudicator, Mr R J Oliver. In a determination notified on 24 August 2004 he dismissed her appeal both under the Immigration Rules and Article 8. By virtue of transitional provisions made under the Asylum and Immigration (Treatment of Claimants etc) Act 2004 her application for permission to appeal took effect as an application for reconsideration. This was refused by a Senior Immigration Judge but succeeded on statutory review. 2) At the appeal before the Adjudicator the appellant did not seek to pursue any argument under the Immigration Rules, nor was such an argument raised in the grounds of reconsideration. The sole issue in this case concerns Article 8. 3) At the outset of the appeal an issue arose concerning whether the Adjudicator was right to determine the Article 8 issue in the light of JM* (Rule 62(7); human rights unarguable) Liberia [2006] UKAIT and whether, in consequence, we were bound to say that Article 8 had no prospect of success in view of the need for there to be a further (appealable) immigration decision to remove. There was also an issue of whether in any event, in relation to an appeal such as this, one arising under the Immigration and Asylum Act 1999 and not under the Nationality, Immigration and Asylum Act 2002, the case of R (Maksimovic v Secretary of State for the Home Department [2004] EWHC 1026 Admin should be followed. This case considered that in the context of a s.69(2) appeal under the 1999 Act, human rights had to be dealt with. Prior to completing this determination it has been brought to our notice that the Court of Appeal on 6 October 2006 decided that JM* is wrong on the Article 8 arguability point. Therefore, although we have yet to see the written judgment, we are prepared on the basis of this information to approach this appeal on the basis that the appellant was entitled to rely on Article 8 and that we must make a decision on whether the Adjudicator erred in law in finding that the decision was a proportionate one. 4) We are persuaded that the Adjudicator materially erred in law. He applied the principle set out in M* Croatia (M (Croatia) v Secretary of State for the Home Department [2004] UKIAT 24, [2004] INLR 327) which 2

3 prohibited adjudicators on appeal from considering the merits of the Article 8 claim: indeed he expressly rejected a submission reliant on the House of Lords judgment in Daly [2001] 1 WLR 840, to consider the appellant's Article 8 claim on its merits. Partly on the basis of what had been held in Daly, the Court of Appeal in Huang [2005] INLR 247 decided that M* (Croatia) was wrong and that adjudicators were obliged to decide Article 8 claims on their merits. 5) Additionally we also consider that the Adjudicator erred in law in failing to show that he had, when considering proportionality under Article 8(2), taken into account all relevant considerations. Indeed it is difficult to see that he conducted any kind of balancing exercise at all. 6) Having decided that the Immigration Judge materially erred in law, we next considered whether we were in a position to decide the appeal for ourselves. We decided that we were, since Mr Ikie was unable to identify any evidence concerning recent developments which would have had a material bearing on the matters we had to decide. 7) The respondent does not dispute in this case that the appellant had established both private life and family life relationships in the UK and that the decision refusing to vary her leave to remain amounted to an interference with those relationships. 8) The sole issue is therefore whether the decision amounted or amounts to a disproportionate interference. Whether one does this (as Mr Ikie contends) by reference to the Nhundhu and Chiwera 01/TH/0613 step-bystep approach or by reference to Lord Bingham s step-by-step approach in Razgar [2004] UKHL 27, it is clear (by reference to Huang), that for an appellant to show that his Article 8 rights would be violated, it is necessary to identify circumstances which are truly exceptional. Subsequent case law has confirmed that that is a stringent test: for a summary see WK (Article 8-expulsion cases - review of case-law) Palestinian Territories [2006] UKAIT ) Mr Ikie s principal argument for why we should identify the appellant's circumstances as truly exceptional was that this was a case where the interests of the state and the community in the maintenance of effective immigration control were not to be accorded their normally preponderant weight. He cited the case of GS (Article 8 public interest not a fixity) Serbia and Montenegro [2005] UKIAT to support his argument that the appellant's qualifications and work in the UK as a teacher meant that there was in this case a state and wider community interest in the appellant staying rather than in being subjected to immigration control. However, in our view, Mr Ikie has misunderstood the ratio of GS. That case, it is true, does highlight the point that the public interest side of the (imaginary) scales does not bear a fixed weight. However, the only factors it identified as justifying normally heavy weight not being given to the interest of the state in the effective maintenance of immigration 3

4 control were of limited scope. They arose only where the state has shown by its own action or inaction that immigration control considerations required modification e.g. where it has adopted but not applied a policy to allow certain categories otherwise subject to strict immigration control. This reflects the observation made by Lord Bingham in Razgar at [19], when dealing with the [question 4] issue of whether the proposed removal is an interference which pursue a legitimate aim, that: implementation of a firm and orderly immigration policy is an important function of government in a modern democratic State. In the absence of bad faith, ulterior motive or deliberate abuse of power, it is hard to imagine an adjudicator answering this question [question 4] other than affirmatively. 10) Plainly, therefore, when addressing the issue of proportionality (Lord Bingham s question 5) it is only in very limited circumstances that the interests of the state and wider community in the maintenance of effective immigration control can not carry a heavy weight. 11) In the type of circumstance described by Mr Ikie, by contrast, there has been no conduct of the state so as to justify modifying immigration control considerations. Therefore the existence of an evident need on the part of the state and wider community in the UK presently for trained teachers does not demonstrate that the co-existing interest of the state and wider community in effective immigration control is no longer an imperative. 12) Furthermore, on the particular facts of this case there were specific reasons why the immigration control considerations were to be seen as weighing heavily in the overall balance against the appellant. She had remained in the UK well beyond her permitted six months period of visit granted to her on 8 December 2000 and had proceeded, whilst here as an overstayer, to obtain further teaching qualifications and experience. She at no stage during this period sought permission to pursue and engage in these activities. 13) In considering the balancing exercise required under Article 8 we take into account in the appellant's favour: that she had previously spent nine years in the UK lawfully, having arrived here when she was nine; that during those nine years she went to school here; that back in Nigeria she lost her husband (to cancer) after only six years of marriage and also her mother in the following year; that during these difficult times, her youngest brother John (who had been in the UK previously) came to live with her before returning over a year later to the UK; that in Nigeria she was a university graduate who had gone into the teaching profession there, rising to a position equivalent to deputy head; that her desire to come to the UK was driven by her loneliness as a widow and her strong wish to be near her three siblings in the UK; that whilst in the UK she has strengthened her knowledge of teaching, undertaking several courses, and receiving glowing references from senior UK teachers; that she was a teacher with skills in short supply in the UK currently; that she 4

5 has no criminal convictions; that she has done a lot of useful church and community work; and that whilst here she has strengthened her close family ties with her siblings, living here with her younger brother John (with whom she is particularly close) and providing him considerable guidance after their mother s death. 14) However, such considerations are greatly outweighed by others counting against the appellant. Although she lived in the UK for some nine formative years, she had spent the majority of her life in Nigeria, and, after returning from the UK, had done much to reintegrate there: obtaining university qualifications, entering employment, marrying and enjoying (until her husband s death) six years of normal married life there. She was an adult with no health problems. Her siblings in the UK were now independent adults. Although she has claimed she was uncertain about her immigration status due to her previous residence here, we are quite unable to accept that she was unaware that she had only limited leave of six months and that her stay thereafter was unlawful. In this regard we note that her younger brother John had made careful enquiries of the British High Commission in Nigeria and would surely have passed on what he had learnt, namely that she could not seek to re-enter to the UK as a returning resident. It may be that she had suffered from not receiving better immigration advice in the past, e.g. in relation to the highly skilled migrant scheme, but such advice would only in any event have opened up a further opportunity for her to be considered by an overseas post for entry clearance to the UK, not for being able to remain in the UK. As the Adjudicator properly noted at paragraph 43, this opportunity remains, albeit it is one which requires her to depart and then apply from abroad for entry clearance in the same way as any other applicant. 15) For the above reasons, we consider that the appellant s circumstances are not truly exceptional. The decision to refuse to vary her leave to remain was and is not disproportionate. 16) We conclude: The Adjudicator materially erred in law. The decision we substitute for his is to dismiss the appeal both under the Immigration Rules and under Article 8. Signed Senior Immigration Judge Storey Date 5