C4/2004/1252 & C4/2004/1252(A) 
Neutral Citation Number: [2005] EWCA Civ 751
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice 
Strand 
London, WC2 

Thursday, 19th May 2005
 
B E F O R E:

LORD JUSTICE WARD 
 
LORD JUSTICE LAWS 
 
LADY JUSTICE SMITH 
 
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DELO MONGOTO
Appellant/Appellant
-v-
 
SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Respondent/Respondent 
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(Computer-Aided Transcript of the Stenograph Notes of
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- - - - - - -
 
MR RAZA HUSAIN (instructed by Messrs TRP) appeared on behalf of the Appellant
MS KRISTINA STERN (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
 - - - - - - -

J U D G M E N T
1.	LORD JUSTICE LAWS:  This is an appeal against the determination of the Immigration Appeal Tribunal ("the IAT") promulgated on 25th March 2004, when they dismissed the appellant's appeal against the decision of the adjudicator of 7th July 2003.  The adjudicator, in his turn, had dismissed the appellant's appeal to him, brought on asylum and human rights grounds, against the Secretary of State's refusal of the appellant's asylum claim.  Permission to appeal to this court was granted by Sedley LJ on 13th July 2004 upon consideration of the papers, but the hearing of the appeal was later stayed pending delivery of this court's judgment in Huang & ors [2005] EWCA Civ 105.  The judgment in Huang, whose significance I will explain in due course, was handed down on 1st March 2005.  
2.	The appellant and his wife both gave evidence before the adjudicator.  He found the appellant to be credible.  He said, paragraph 34:
"In my view, his evidence was consistent and plausible and it has been corroborated by that of his wife whose credibility has not been challenged."
3.	Accordingly, the essential facts are not in contention.  They are as follows.  The appellant is a citizen of the Democratic Republic of Congo ("DRC"), born on 27th February 1973.  The IAT gave the following crisp account of his relevant history:
"1(a)  He had lived at Kisangani.  He had carried on business buying gold from mines and selling it to traders in Kisangani. 
"(b)  In c.1994, he had been involved as a co-ordinator of a Human Rights organisation Haki Za Binadamu in Kisangani.  He and the other members of the organisation enquired into, and had reported abuses of human rights in the Kisangani area.
"(c)  In c. May 2002, he and other members of the Haki Za Binadamu had met with a view to organising a demonstration to protest against activities of the Rwandan soldiers and the RCD rebels.  It had been decided to hold a demonstration on 14th May 2002.  That day, he had set out for the radio station -- because he had been deputed to broadcast the opening of the demonstration.  At the radio station, Congolese soldiers of the RCD were on the verge of mutiny.  A group of Rwandan soldiers had appeared.  He and his colleagues had been arrested.  Leaflets relating to the demonstration had been found in his possession.
"(d)  He had been detained for c. seven months.  Whilst in custody he had been maltreated.  In c. November 2002, the Congolese officer named Anande had made contact with him.  He (Mr Mongoto) and Mr Anande had both been members of the Lokele Tribe.  As a result of discussions between them, it had been agreed that Mr Anande would assist him to escape on payment of a bribe of US$1,000.
"(e)  Arrangements had been made for the raising of the money.  On 24th December 2002, Mr Anande had driven him out of the prison, concealed in a jeep.  His cousin had paid Mr Anande the money -- and had arranged for a driver to take him (Mr Mongoto) to Uganda.
"(g) [sic]  From Uganda, he had flown to the United Kingdom.  By that time, his wife had already arrived in the United Kingdom.  She and their son had fled from the DRC immediately after the demonstration on 14th May 2002.  She had been raped at that demonstration.  She had been granted exceptional leave to remain."
4.	The RCD, or RCD/G, was a Rwandan-backed rebel group.  The rape committed on the appellant's wife had been done in a church by two rebels when she was five months pregnant.  She was taken by a priest and nuns to hospital, and at length arrived in the United Kingdom on 10th July 2002.  Her baby was born on 30th August 2002.  Three days later, on 2nd September 2002, she was granted exceptional leave to remain for four years by the Secretary of State.  
5.	The appellant only learned of her escape after he had himself escaped from detention on 24th December 2002.  He arrived in the United Kingdom on 27th December 2002 and claimed asylum three days later.  His claim was refused by the Secretary of State on 26th February 2003 and removal directions to the DRC were set.
6.	The adjudicator rejected the appellant's asylum claim on the basis that he would be returned not to Kisangani, where he came from and which was within an area controlled by the rebel RDC-G, but to Kinshasa, which was controlled by the government of President Kabila.  His history would not be known there, and although the Kabila government's human rights record was poor, it was not shown that persons originating from rebel-held territory were routinely persecuted in Kinshasa.  It was not unduly harsh, so the adjudicator held, to require the appellant to relocate in Kinshasa.  Though, as the UNHCR had indicated, there were problems associated with relocation, they related to ethnicity, and the appellant was a Lokele rather than a Tutsi.  There was no objective evidence that the Lokele were at risk in Kinshasa.  
7.	The adjudicator also rejected an argument that the appellant would be at risk as a returning asylum seeker, basing himself on the CIPU report of April 2003.  These conclusions are all set out at paragraphs 36 to 39 of the adjudicator's decision.  At paragraph 39, the adjudicator also concludes that, for the same reasons, there would be no real risk of a violation of the appellant's rights under Article 2 or 3 of the European Convention on Human Rights were he to be returned to the DRC.
8.	The adjudicator proceeded to deal with the appellant's further argument that return to the DRC would perpetrate a violation of his right to respect for his family life under Article 8 of the European Convention.  The adjudicator accepted, at paragraph 40, that he enjoyed a family life in the United Kingdom with his wife and son, and that there would be an interference with his right to respect for family life because his wife was permitted to remain in the United Kingdom, pursuant to her exceptional leave to remain, until September 2006, or there would, at any rate, be some inference with the Article 8(1) right were he to be required to depart during the currency of that leave.
9.	So the question arising under article 8(2) was whether the appellant's removal be would be disproportionate having regard to the legitimate aim of effective immigration control.  The adjudicator said this at paragraph 41:
"41.  However, I am also satisfied that the Respondent has shown that the Appellant's removal will be lawful, and also necessary in a democratic society in the interests of public safety or the economic well-being of the country and proportionate to that aim.  The Appellant's wife has been granted exceptional leave to remain, but upon circumstances very similar to those relied upon by the Appellant.  I have found it safe for the Appellant to return to Kinshasa, and therefore I find no insurmountable obstacle to the Appellant's wife returning with him.  It was not shown that the Appellant's son cannot return there, despite his age.  In any event, the Appellant can apply to re-join his wife in the United Kingdom as her husband, in which event his removal will be proportionate according to Mahmood [2001] INLR 1.  I find no exceptional circumstances in this case of the sort envisaged in Mahmood.  The Appellant's prospects of success in such an application are not relevant -- see [2003] UKIAT 00005."
10.	I should say that the appellant's claim under Article 8 represents the principal focus of the appeal to this court.
11.	So the case went to the IAT.  Now, it should be noted that the Tribunal's jurisdiction was, by force of section 101(1) of the Nationality, Immigration and Asylum Act 2002, limited to points of law only, the adjudicator's decision having been promulgated after the relevant commencement date of 9th June 2003.  
12.	The grounds of appeal to the IAT related essentially to the issue of the risk, if any, to the appellant were he to be returned to Kinshasa.  After citing earlier decisions of the Tribunal the IAT held, essentially in agreement with the adjudicator, that the appellant and/or his wife would be safe in Kinshasa and it would not be unduly harsh to expect them to relocate there; see paragraphs 16 and 17.  
13.	I should not wish it to be thought that the restriction on the IAT's role effected by section 101(1) of the Act of 2002 is in any way to be sidelined.  It may be that arguments could, perhaps should, have been raised in this case to suggest that the IAT exceeded its role by travelling into areas that were, in truth, areas of fact; but in the particular circumstances, I think it is appropriate for my part to deal with the appeal as it has been presented by the parties.  I say only that the restriction effected by section 101(1) is a matter of very considerable importance in these cases and is not to be set on one side.
14.	As regards Article 8 of the European Convention on Human Rights, the IAT said this at paragraph 18: 
"In the light of those conclusions, we agree with Mr Renton's conclusions [he was the adjudicator] that there are no substantial reasons preventing Mr Mongoto's wife and son returning to the DRC with him and settling in Kinshasa.  We agree with his conclusion that their removal is necessary in a democratic society in the interests of maintaining immigration control.  We now have the guidance (which was not available to Mr Renton) of the starred determination of the Tribunal in M (Croatia) [2004] UKIAT 00024."
15.	The IAT proceeded to cite paragraph 28 of Ouseley J's judgment in the starred M (Croatia) case.  Here is the critical passage:
"They [that is to say the adjudicator and the Tribunal] should normally hold that a decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances.  However, where the Secretary of State, eg through a consistent decision-making pattern or through decisions in relation to members of the same family, has clearly shown where within the range of reasonable responses his own assessment would lie, it would be inappropriate to assess proportionality by reference to a wider range of possible responses than he in fact uses.  It would otherwise have to be a truly exceptional case, identified and reasoned, which would justify the conclusion that the removal decision was unlawful by reference to an assessment that removal was within the range of reasonable assessments of proportionality."
16.	This reasoning must now be accepted as incorrect; at any rate the first sentence there set out is incorrect.  That is by virtue of this court's judgment in Huang, to which I referred in passing at the outset.  That case shows that the question for the adjudicator is not whether the decision to remove is so disproportionate to the legitimate aim of immigration control that no reasonable Secretary of State could have decided otherwise; the adjudicator, rather, has to decide for himself whether the case is truly exceptional.  It is enough to set out this extract from the judgment in Huang:
"59 ... The true position in our judgment is that the HRA [that is of course the Human Rights Act]  and s.65(1) [that is the section of the relevant immigration statute] require the adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules. 
"60.  In such a case the adjudicator is not ignoring or overriding the Rules.  On the contrary it is a signal feature of his task that he is bound to respect the balance between public interest and private right struck by the Rules with Parliament's approval.  That is why he is only entitled on Article 8 grounds to favour an appellant outside the Rules where the case is truly exceptional.  This, not Wednesbury or any revision of Wednesbury, represents the real restriction which the law imposes on the scope of judgment allowed to the adjudicator.  It is not a question of his deferring to the Secretary of State's judgment of proportionality in the individual case.  The adjudicator's decision of the question whether the case is truly exceptional is entirely his own.  He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases.  There will be a residue of truly exceptional instances."
17.	The grounds of appeal to this court, drafted before the judgment in Huang was handed down, took two points.  The first attacked the IAT's conclusion that, in the context of Article 8, the appellant's removal to the DRC would not be disproportionate.  The second was an entirely freestanding point, which I find it convenient to deal with first.  
18.	The hearing before the IAT took place on 24th February 2004.  On 25th February 2004 a new report on the DRC was published by the United States State Department.  It is said, and here is the first point in the grounds, that in the light of this report the IAT should have directed a re-hearing under its rules of procedure, because the report tended to undermine the factual conclusion arrived at by the adjudicator and the IAT, namely that the appellant would be safe if returned to Kinshasa, which was government controlled.  
19.	The reason for this was that the report stated that President Kabila had promoted to the rank of Brigadier-General two officers who had belonged to the RCD/G and had been charged with leading the rebel massacres.  The material passage in the report reads as follows:   
"In response to international pressure, the RCD/G and MLC authorities conducted trials following massacres committed by their armies during 2002; however, these trials were widely and sharply criticized by NGOs and human rights observers and raised questions about the legitimacy and credibility of the trials.  In the case of the May 2002 Kisangani massacre committed by the RCD/G, six of the nine defendants were acquitted of involvement; two escaped and only one defendant was still in prison at year's end.  The military judicial authorities who handled the inquiry overlooked reprisals that their soldiers took against the civilian population.  On August 19, President Kabila promoted the two RCD/G officers charged with leading the massacres, Laurent Nkunda and Gabriel Amisi (also known as Tango Fort), to Brigadier-General."
20.	In fact the IAT was in any event aware "that steps to integrate the rebels within the armed forces are being undertaken"; see paragraph 15(e) of the determination.  The citation is from the October 2003 Country Assessment.  When the IAT itself refused permission to appeal to this court on 8th May 2004, the point about the State Department Report having been raised, it said this: 
"The promotion of the RCD/G officers is part of an attempt to achieve some reconciliation between former warring factions in DRC.  It is not indicative of any enhanced risk for the claimant in Kinshasa."
21.	For my part, I see no reason against the background which we have seen to disagree with this, and I would accept the summary of the position put forward in the skeleton argument prepared by Miss Stern for the Secretary of State, as follows at paragraph 11: 
"The USSD Report, which supports the pre-existing picture of emerging reconciliation, does not undermine:
"(a) the Adjudicator's finding that there was no evidence that people originating from rebel-held territory are routinely persecuted in Kinshasa.
"(b) the IAT's finding that they were not satisfied that the authorities in Kinshasa would be aware of the Appellant and his wife's political profile in Kisangani, or
"(c) the IAT's conclusion that there is 'an obvious and inherent lack of likelihood in the proposition, and we do not accept, that information was passed from the rebels to the Kinshasa authorities'."
22.	In these circumstances, it seems to me that there is, with respect, nothing in the first point sought to be taken in the grounds of appeal.  
23.	It is convenient, next, to address a further distinct argument first raised in Mr Husain's supplementary skeleton argument, dated 5th April 2005, dealing with the Huang case.  This argument is based on a Home Office policy announcement made in 2004, described by Mr Husain as "the family concession".  The reference in fact goes back to an announcement of October 2003 by the Secretary of State to the effect that, exceptionally, families satisfying a certain specified criteria would be granted indefinite leave to remain outside the Immigration Rules.  The essential criteria were that the applicant in the case had applied for asylum before 2nd October 2000, and that he had at least one dependant aged under 18, other than a spouse, in the United Kingdom on either 2nd October 2000 or 24th October 2003.  
24.	In this case, as I have said, the appellant applied for asylum on 30th December 2002.  The policy did not apply to him and Mr Husain does not contend otherwise.  He says, however, that the appellant may derive what he calls "analogical support" from the policy for his claim that his removal would be disproportionate to the legitimate aim of immigration control.  
25.	I have to say that in my judgment this is a spurious argument.  The Secretary of State is entitled, and this must be elementary, to elaborate a limited policy to assist particular categories of would-be entrants, provided, of course, that the policy is rational and otherwise lawful, as the family concession plainly was.  It would be quite wrong for the courts to build expectations approaching enforceable rights on the back of such a policy for the benefit of persons to whom, in terms, the policy did not apply and, it is assumed, was not intended to be applied.  For the courts to take such a course would or might offer a wholly illegitimate discouragement to the adoption of humane, but exceptional, policy positions by the Secretary of State.  I would reject this part of the appellant's case out of hand.
26.	There remains the appellant's substantive ground based on Article 8 of the European Convention.  I accept at once that the adjudicator and the IAT made a mistake of law.  They applied the starred M (Croatia) approach, which as I have explained has been overtaken by this court's decision in Huang.  I have set out the critical passage.  Plainly there is no conceivable criticism of the appellate authorities, for their decisions were made before the Huang judgment was handed down.  
27.	The question, however, therefore becomes this: might a reasonable adjudicator, or Tribunal, have found on the facts of the appellant's case that the situation was so exceptional as to justify a decision on the proportionality issue in the appellant's favour within the reasoning in Huang?  
28.	In his supplementary skeleton argument, Mr Husain emphasises a number of features.  First, he draws attention to the circumstance that recent case law of Strasbourg shows a narrowing of the margin of the appreciation accorded by the European Court of Human Rights to the contracting states in the area of Article 8 claims.  It has narrowed, he says, since the well known case of Abdul Aziz [1985] 7 EHRR 471.  That case was decided 20 years ago.  However, it is to be remembered that we are a municipal court.  We are certainly not directly concerned with the doctrine of margin of appreciation.  It does not seem to me that this point casts light on the essential question whether there might have been an exceptional position here open to be found by the adjudicator.  
29.	Mr Husain also refers to the fact that in Huang, and the other two cases heard along with it, this court was not concerned with what he calls "paradigm horizontal and vertical family relationships" of the kind engaged in this present case, namely relationships between spouses and between parents and minor children.  
30.	I would not, of course, hold this torture of the English language against Mr Husain's client.  It is enough to say that every case has to be judged on its own particulars facts.  Mr Husain refers in particular to the case of Jakupovic [2004] 38 EHRR 27, where the European Court of Human Rights held that: 
"... very weighty reasons have to be put forward to justify the expulsion of a young person (16 years old), alone, to a country which has recently experienced a period of armed conflict with all its adverse effects on living conditions and with no evidence of close relatives living there."
31.	But the claimant there was a 16 year old boy.  There is no read across of value that is available, or that ought to be made, from the Jakupovic authority.
32.	In his original skeleton argument Mr Husain placed especial emphasis upon this submission: 
"15.  First, it was plain that the Secretary of State had considered that the appellant's wife was deserving of some form of leave in the United Kingdom.  She was accordingly granted exceptional leave to remain in September 2002 with the couple's baby son.  Accordingly, the fact (as the adjudicator found it) that the appellant's circumstances were not dissimilar to those of his wife pointed against, rather than towards, the proportionality of return: this was a case where the Secretary of State's past dealing with members of the same family contra-indicated removal..."
33.	Reference is made to the M (Croatia) case, and it is pointed out that the relevant passage in paragraph 28 of Ouseley J's judgment was not part of the reasoning in M (Croatia) from which this court departed in Huang.
34.	It is also said that the IAT paid insufficient attention to the terrible past experiences of the appellant and his wife.  He had been tortured, she had been raped.  I feel driven to say that I consider that the appellant's case upon this part of the appeal is really a disguised plea to the factual merits, travelling beyond the proper role of this court.  The facts here are not, in my judgment, capable of amounting to, or being regarded as, a truly exceptional case.  
35.	With one qualification, which I will explain, I accept these following submissions made by Miss Stern in paragraph 4 of her skeleton:
"(a)  The fact that the Appellant's wife has been granted exceptional leave to remain here does not mean that she cannot leave the UK and/or return to the DRC.  On the contrary, on the Adjudicator's findings the Appellant and his wife and family would be safe in Kinshasa.
"(b)  Absent any change in her immigration status, the Appellant's wife is going to have to return to Kinshasa in approximately 16 months in any event."
36.	The qualification to which I referred arises at this point.  Miss Stern's statement is not strictly right, as she herself confirmed to us this morning.  The policy position is that a person granted four years' exceptional leave to remain before, I think, 1st April 2003 may expect, absent any evidence of criminality thereafter, to be granted indefinite leave to remain.  I return to Miss Stern's argument and continue the quotation: 
"(c)  Both the Appellant and his wife are young and fit.
"(d)  The Appellant's children in the UK are of a sufficiently young age that they are unlikely to have any difficulty in adapting to life in the DRC.
"(e)  The Appellant was a successful business man trading gold in the DRC.
"(f)  The Appellant's wife was a business woman trading in second hand clothes and also buying and selling gold.
"(g)  There are no insurmountable obstacles to the Appellant and his family returning together to live in Kinshasa.
"(h)  Alternatively, the Appellant could return to Kinshasa without his wife and family (if they choose to remain here without him) and apply for entry clearance to enter the United Kingdom."
37.	In particular I wish to emphasise my firm disagreement with Mr Husain's argument that the grant of exceptional leave to remain to the appellant's wife should in some way, or to some extent, drive the Secretary of State's decision towards the appellant's interest and in his favour.  
38.	The Secretary of State's grant of exceptional leave to remain to the wife was plainly a compassionate decision in favour of a woman with a three-day-old child, living alone in this country, not knowing whether her husband was dead or alive.  To build a case in the appellant's favour on this particular decision in his wife's case is an entirely unjustifiable process on these particular facts.  It is a process which contains no trace of legal substance.  If we gave it credence, we would simply be discouraging the administration from making special and compassionate decisions.
39.	I acknowledge, as Mr Husain was at great pains to insist, that issues of proportionality engage questions of deep legal principle.  They are by no means to be treated merely as calling for the disposal of individual cases by reference to the decision-maker's subjective responses, but that does not justify Mr Husain's elevation of particular circumstances into legal milestones.
40.	I have no reason to suppose that the appellate authorities here ignored anything they had to consider, including the past sufferings of this couple.  But, for all the reasons that I have given, it seems to me that this is a case where the appellant's Article 8 claim could not, on the facts, have prospered, and in those circumstances, for my part, I would dismiss the appeal.
41.	LADY JUSTICE SMITH:  I agree.
42.	LORD JUSTICE WARD:  So do I.  The appeal is therefore dismissed, Mr Husain.
Order: Appeal is dismissed