Case No: C5/2007/2787
Neutral Citation Number: [2008] EWCA Civ 509
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL 
[AIT No: HR/00034/2006]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 9th April 2008

Before:

LORD JUSTICE TOULSON
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Between:

	AC (PAKISTAN)
	Appellant	
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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Mr B Ali (instructed by Messrs Aman) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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Judgment
Lord Justice Toulson:

1.	This is an application for permission to appeal against a decision of Immigration Judge Roberts dismissing an appeal from a decision of the Secretary of State to remove the appellant as an overstayer.  It is submitted that his removal would contravene his rights under Article 8 of the European Convention on Human Rights.  

2.	His application for permission to appeal was rejected by Senior Immigration Judge Gleeson and by Pill LJ on paper.  

3.	The appellant is a Pakistani citizen born on 21 January 1968.  He arrived in the UK on 22 November 1997 with entry clearance as the spouse of SB, who was a person settled in the UK.  He was granted leave to enter for one year, but during that year his marriage broke down and his wife informed the Home Office of this fact.  The appellant overstayed and was served with a notice of his liability to removal on 29 May 2001.  On 6 June 2001 he made an application to stay on Article 8 grounds.  This was refused on 11 July 2001, since when the case has been grinding its way through various appeal processes.  The Immigration Judge found that the appellant had a family life here by reason of his relationship with his sister and her children with whom he lives, but he found that the consequences of his removal would not be of such gravity to him as to engage the operation of Article 8.  If he was wrong in that, he also found that the appellant’s removal would be in accordance with the law and necessary in a democratic society for protection of the state’s immigration policy, and that any interference with Article 8 was proportionate to the legitimate aim of effective immigration control.  

4.	His decision is challenged on a variety of grounds.  I have read all the matters set out in Mr Ali’s skeleton argument, but he focussed in his oral argument on four points: the first related to the conclusion that Article 8 was not engaged; the second and most substantial point related to the Immigration Judge’s approach to the impact of his removal on third parties; the third point related to the finding on proportionality; and the fourth point related to the Immigration Judge’s treatment of the issue of delay.  I leave aside for the moment the second point.  If there is nothing in that point, I am unpersuaded that any of the other three points give rise to any real prospect of success.   As to the first point, even if the appellant were to succeed in his argument that the Immigration Judge set the bar too high in determining whether Article 8 was engaged, in the light of the decision of this court in AG (Eritrea) v SSHD [2007] EWCA Civ 801 he would still have to succeed in his challenge on the proportionality point, and I am quite unimpressed by the argument that the judge applied the wrong test or reached a decision which was perverse on the facts.  As to the contention that he applied the wrong test, the argument is that because the Immigration Judge at paragraph 47 (5) quoted a passage from the judgment of Ouseley J in MB (Croatia) [2005] UKAIT 00092, he is to be taken as having inferentially applied the pre-Huang exceptionality test referred to in the ensuing part of Ouseley J’s judgment, which the Immigration Judge did not cite.  That seems to me to be a hopeless argument.  The most probable reason why the Immigration Judge stopped short with his citation at the point that he did was precisely because of his awareness that the pre-Huang exceptionality test is no longer applicable, and there is nothing in the determination to suggest that he applied the wrong test in law.  A perversity claim is always a very difficult one to establish and I see no real prospect of it succeeding in this case.  

5.	The final ground of attack related to the Immigration Judge’s treatment of the issue of delay.  I agree with the Senior Immigration Judge that there is no detectable error of law in the way in which he dealt with that matter.  The proper approach is set out in the judgment of Buxton LJ in HB (Ethiopia) & Ors v SSHD [2006] EWCA Civ 1713, and I can detect no indication that the Immigration Judge approached this matter incorrectly in terms of the law.

6.	That brings me back to the point of greatest substance.  The approach adopted by the Immigration Judge was that he was not directly concerned with any human rights of other members of the appellant’s family.  He was concerned with those matters only indirectly insofar as they might impact on the Article 8 rights of the appellant himself.  This is a well established way of approaching such matters.  But Mr Ali has advanced two arguments: first he says that that is not the right approach under the statutory appellate scheme under which this appeal is brought, which he submits is materially different from the appellate  scheme under consideration by Ouseley J in the case of SS (ECO ‑ Article 8) Malaysia [2004] UKIAT 00091; secondly he has told the court that the House of Lords is next week going to be hearing two appeals which involve the whole question of the relevance to be attached to third party human rights.  In these circumstances I would not wish to determine the leave application on this issue without hearing representations from the respondent.

7.	Accordingly I propose to adjourn the application, direct that notice of it be given to the Secretary of State with a request that the court be furnished with her submissions on the issue, and the matter can then be relisted when both parties can be represented.  I am not reserving the case to myself.  There would obviously be practical advantages in my being able to deal with it, having dealt with the matter this far, but the court is under great pressures of work at the moment and if I were formally to reserve the case to myself that could produce practical problems.   

Order: Application adjourned