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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> S v Secretary of State for the Home Department [2006] EWCA Civ 695 (09 May 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/695.html Cite as: [2006] EWCA Civ 695

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
[AIT NO. TH/01917/2005]

		Royal Courts of Justice Strand London, WC2
		9th May 2006

1. LORD JUSTICE BROOKE: This is a renewed application for permission to appeal from a decision of a panel of the Asylum and Immigration Tribunal ("AIT") on a reconsideration of an appeal from a refusal by the Secretary of State of indefinite leave to remain. The issue both before the single immigration judge and before the panel of the AIT was restricted to Article 8 issues. The appellant and his wife are citizens of Tanzania. They are now aged 70 and 57, respectively. They entered the United Kingdom in October 2001 as visitors. In March 2002, they applied for indefinite leave to remain as the dependent relatives of their daughter, who was settled here, under Rule 317 of the Immigration Rules. On 4 July 2003, the Secretary of State refused this application. He was not satisfied that they were dependent on the sponsors by living abroad and they had no other close relatives to turn to for financial support in their own country. An appeal was lodged against that refusal but an explanatory statement was not issued until 15 July 2005. The immigration judge heard the appeal and decided it on 26 August 2005.
2. She found that the appellant and his wife had lived with their daughter and her family since arriving in the United Kingdom. They had been supported by their daughter and the family emotionally and financially since then. The appellant had been diagnosed with a brain tumour and an operation was performed in June 2005. There were difficulties for the appellants about living with their son and daughter-in-law in Tanzania. There was medical treatment available for the appellant in Tanzania and they had substantial savings were they to return there and the family could keep in contact with them by phone calls and visits.
3. But the immigration judge was influenced by the delay in the matter by the Secretary of State, and the changed circumstances for the appellant in relation to his recent health problems. The immigration judge had directed herself in Paragraph 35 that she had to have regard to the case of Huang, where it was held that an adjudicator would only allow an appeal on Article 8 grounds where he concluded that the case was so exceptional on its particular facts that the imperative of proportionality demanded an outcome in the appellant's favour, notwithstanding that he could not succeed under the rules.
4. The immigration judge balanced matters in either direction in paragraphs 38 and 39 of her judgment and then continued in paragraph 40:

"I consider this to be a borderline case where the competing interests of the Appellants and immigration policy are finely balanced. Had this appeal been heard prior to Mr [S's] recent health problems I doubt that they would have been able to establish a disproportionate interference with Article 8 rights. However I am persuaded by the fact that they are without any real support in Tanzania and that they would have to find accommodation and seek appropriate medical treatment. I have taken account of support they receive in the United Kingdom from their family and that although they have savings they are finite and would no doubt be used up in accommodation, medical treatment and general living expenses. There is no other income available to the Appellants other than the support they receive from their family in the United Kingdom.

"In conclusion I am just satisfied that they have established that if they were required to leave the United Kingdom their Article 8 rights will be disproportionately interfered with."

5. The Secretary of State sought permission to appeal, in particular because the judge erred in failing to make any findings on how the appellants' circumstances would be truly exceptional under the test set out in Huang. A senior immigration judge granted permission to appeal on 7 September 2005 and said this :

"There is a right to an order for reconsideration only where it is shown that the Tribunal fell into a material error of law but for which there is a real possibility that the appeal would have been decided differently. The proposed grounds for appeal are arguable insofar as concerns the human rights aspect of this appeal, in particular Article 8 of the ECHR. It is submitted the immigration judge materially erred in law in that she failed to make relevant findings of fact in relation to material issues, that she misdirected herself in law in failing to apply the guidance set out in the relevant jurisprudence, and to make any findings as to how and why the appellants' circumstances might be regarded as 'truly exceptional'. All the grounds may be argued.

"There is a real possibility that the Tribunal would decide the appeal differently on reconsideration."

6. On 5 December 2005, a panel of the tribunal explained that they had been able to detect an error of law along the lines indicated in the senior immigration judge's reasons for decision, namely that the immigration judge had not properly identified the reason why she found this to be a truly exceptional case. The challenge to what happened before the panel really arises out of counsel's concern about the procedure they adopted. After setting out the issues fairly generally, the panel said this at paragraph 9:

"We adjourned briefly to consider the question of whether there was an error of law [and] if so, whether we would be able to effect the reconsideration ourselves.

"We concluded, and communicated this decision to the representatives, that there was a material error of law under the determination in that although the Immigration Judge had set out a proper test under Article 8 she had not applied it to the facts. There was also a lack of findings as to insurmountable obstacles although that was a lesser matter. We stated in our brief conclusion that following from that we have decided that even taking into account the up to date medical evidence the situation was not one which could properly be described as truly exceptional in accordance with the tests set in Huang. Accordingly, the appeal would be dismissed, but we would give full reasons for our decision which we now do."

Those reasons were set out in paragraphs 11 to 22 of the decision.

7. There is a very long paragraph 19 in which they take issue with the immigration judge's approach and say:

"We do not see how it can properly be said that the case is a truly exceptional one when these relevant factors that are balanced out. This is not to our mind simply a matter of disagreement but entails the conclusion that the Immigration Judge's decision was perverse as being one to which no reasonable Immigration Judge could come to on the basis of the facts as found by her."

8. In paragraph 20 they say:

"… we consider that it must follow from our conclusions on the perversity of the Immigration Judge's decision that the decision should have been the other way and the case is not one where the circumstances are truly exceptional. We have accordingly concluded that there is a material error of law under the determination and have gone on to consider the up to date evidence. In that regard we have the further evidence referred to by Ms Renshaw [who appeared for the appellants] that the surgery to remove the brain tumour has not been entirely successful."

9. They then set out details of the latest medical evidence, which describes the appellant, who is 70 and in a poor state of health, and in paragraph 22 they come to their own conclusion that the evidence cannot properly be said to be evidence of a case which is so exceptional as to the particular facts "that the imperative of proportionality demands an outcome in the appellant's favour":

"Truly exceptional cases are by definition most unusual, and although this is a case which must excite sympathy and compass [I think they mean 'its compass'] is not one which meets the test in Huang."

10. What Ms Naik, who has argued the case for her clients most tenaciously, submits is that things went wrong at the hearing before the panel when it decided not only that there had been an error of law which entitled them to reconsider the case, but then proceeded to set out their decision on reconsideration straight away without hearing arguments by the parties as to what the answer should be on a reconsideration.
11. Miss Naik has brought our attention to the fact that in the very first appeal to the adjudicator a point had been taken that the Secretary of State had failed to take into account his own policy on removing dependent relatives aged 65 or over, and she has shown me some documents relating to the policy of the Secretary of State in relation to removing dependent relatives who are 65 or over. This policy changed in September 2004, but she submits that a significant issue in this case is the long delay within the Home Office before they set out their explanatory statement which could be the foundation of the appeal.
12. Miss Naik submits that a proper reconsideration would have taken into account the position at that time, would involve a careful consideration of the up-to-date medical evidence and also a careful consideration of the up-to-date financial position of the appellants and the effect, if any, on an Article 8 decision of the Secretary of State's policy which was mentioned in the original grounds of appeal.
13. By taking the procedural course they did of moving straight to their decision on reconsideration without hearing submissions, it is argued that there was a material breach of appropriate procedure. In my judgment, with some hesitation, there are reasonable grounds for pursuing this issue. There is undoubtedly a contemporary difficulty within the AIT in determining what its procedure should be now that the old clear distinction between the IAT's appellate function and the adjudicator's original fact-finding function has been done away with, and with some reluctance I am willing to grant permission to appeal. I consider that this is likely to last 3 hours. A High Court judge can sit, but it must have at least one Lord Justice with asylum expertise.

Order: Appeal granted.