Secretary of State for the Home Department v AB [2002] UKIAT 00725
HX/33587/2001

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 26/02/2002
Date Determination notified: 15 March 2002

Before

DR H H STOREY (Chair) 
MR A R MACKEY 
DR A U CHAUDHRY 

Between

Secretary of State for the Home Department
	APPELLANT	
and
		
AB	RESPONDENT	

DETERMINATION AND REASONS

1. In this appeal the Tribunal finds itself not for the first time having to consider an adjudicator's decision on Article 8 of the European Convention on Human Rights paying scant regard to established Strasbourg jurisprudence. The appellant, the Secretary of State, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr D P Herbert, allowing the appeal on Article 8 grounds only of the respondent, a national of Federal Republic of Yugoslavia, against the decision refusing to vary leave to enter or remain following refusal to grant asylum. Mr G Saunders appeared for the appellant. Mr L Jackson appeared for the respondent. To avoid confusion we refer throughout to the respondent as "the claimant". 
2. The appeal is allowed. 
3. Leave was granted confined to the issue of whether or not removal would be proportionate to a legitimate aim under Art 8(2) of the European Convention on Human Rights. In any event Mr Saunders (in our view very sensibly) sought to withdraw the other ground (which argued that the adjudicator had no power in law to direct that the Secretary of State grant an appellant ELR). 
4. The adjudicator concluded that the claimant "has a private life in the United Kingdom with respect to his physical and moral integrity that would be subject to significant interference should he be returned to Kosovo." In deciding to allow the appeal the adjudicator mentioned the following factors: that the claimant had been in the UK for some three years, having been granted exceptional leave to remain for one year, that he had established a "clear physical and moral integrity" in the United Kingdom insofar as he had obtained extremely useful employment and had been in receipt of state funds for only some four weeks; that he had paid taxes; that he had acquired skills which benefited the United Kingdom; "and most importantly he has established strong community ties both in the work place and in outside. I am told that in oral evidence he provides support to other ethnic Albanians in his community by way of translation and support from his residence in Muswell Hill". He also counted in the claimant's favour: that he had sent money to family and relations in Kosovo and to his mother who was in Turkey undergoing serious operations; and that in Kosovo he would be without accommodation and unemployed. 
Submissions 
5. Mr Saunders contended that in effect the adjudicator had looked at private life factors as if what he had before him was a paragraph 364 Bakhtiar Singh-style deportation appeal and could thus weigh in the balance the interests of the wider community. He asked the Tribunal to bear in mind what he saw as the more restrained approach taken by the Tribunal in the starred determination of Kehinde (O1 TH2668). 
6. Mr Jackson for the claimant said that in addition to private life relationships the claimant had some family life ties, including with a brother here. He asked the Tribunal to find that, in conducting the balancing exercise in this case, the adjudicator was properly mindful of the fact that the public interest considerations were not solely in favour of removal. The claimant was employed as a bus driver performing a vital public service at a time when his employers were having to recruit from abroad due to shortages. He had been trained at some expense. Thus removal would not serve the economic well being of the country. He asked the Tribunal to follow the approach taken by the Tribunal in the case of Sukhjit Gill (OITH02884) in which it was said at paragraph 19 and 20: 
"19. We agree that, as is well established, the need to maintain a firm and fair immigration policy is a relevant and strong factor in considering whether the interference with the right under Article 8 is justified.... 

20. We also agree with Mr Gill, however, that in considering the firm and fair immigration policy all aspects of that policy must be taken into account. So there is no policy of necessarily removing a person in the respondent's position. Mr Gill is right to point out that there are policies which permit persons in the respondent's position to remain in this country. Not only is the immigration policy which is such a strong factor based on executive discretion, but that discretion insofar as it is expressed in a policy is review able at least to some extent by the Appellate Authorities and the courts". 
7. Furthermore, continued Mr Jackson, not only would the claimant have difficulty in obtaining accommodation and employment in Kosovo, but also his removal would mean he would cease being able to financially assist his sick mother by paying for operations in Turkey. Since the Secretary of State had never applied his mind to Article 8, it could not be said he had exercised a discretion to which an adjudicator had to show some degree of deference. He asked the Tribunal to reject Mr Saunders' call for constraints to be placed on the type of circumstances an adjudicator had to weigh in the balance when considering proportionality under Article 8(2). 
Right to Respect for Family and private life 
8. As the Tribunal has emphasised in Nhundu and Chiwera (O1TH0613), the right protected under Article 8 is the right to respect for family life and private life and so an adjudicator should consider whether there are significant elements of family life or private life or both. In this case, it is clear the adjudicator was correct to_ treat the main basis for the claimant's human rights claim to be his right to respect for private life. However, given that the respondent had a brother and other distant relatives in the UK he should for completeness have examined whether these relationships gave rise to significant elements of a family life as well as a private life. However, the claimant was not a minor and, in the absence of any evidence to show that his family relationships in the UK were particularly close or substantial, it does not appear to us that there was any real underestimation of the strength of the relationships in the UK underlying his Article 8 claim. 
Private Life 
9. The adjudicator partly hinged his findings under the right to respect for private life rubric on the claimant having "established a clear. physical and moral integrity in the United Kingdom". With respect, his reference to the physical and moral integrity component of the right to respect for private life was misplaced. As the European Court of Human Rights has clarified in the case of Bensaid v UK [2001] INLR 325 and the Tribunal has clarified in cases such as Nhundu and Chiwera and M (OITH3623), the physical and moral integrity component of the right to respect for private life is only relevant in cases where an applicant's physical or bodily integrity or his moral well-being or mental health are particularly threatened by a decision to expel or remove him. That was manifestly not the case here. He was correct, however, to see as particularly relevant, that aspect of private life described by the Court in such cases as Niemietz v Germany (1993) 16 EHRR 97 as the right to develop one's own personality and to create and foster relationships with others. 
Interference 
10. The adjudicator found that the claimant's private life in the United Kingdom "would be subject to significant interference should he be returned to Kosovo". He did not give reasons but (and this is not disputed by Mr Saunders) since at the date of decision he had been in the UK over two years and had been granted 12 months exceptional leave to enter between July 1999 and July 2000, it is clear enough that the decision refusing to vary leave to enter or remain did constitute an interference. 
In accordance with the law and legitimate aim 
11. There was no dispute in this case that the decision was in accordance with the law and pursued the legitimate aim of prevention of disorder of crime. 
Proportionality 
12. Mr Saunders sought to persuade us of a point concerning the nature of the balancing exercising required when considering whether a decision refusing asylum amounted to a disproportionate interference with a claimant's right to respect for his family and private life. He submitted that under Article 8 an adjudicator could not take into account the interests of third parties or certain sections of the community in a person remaining in the UK. The situation in respect of Article 8 was not, he said, the same as it was under paragraph 364 as elaborated by the House of Lords in the case of Bakhtiar Singh [1986] Imm AR 352. In that case, which concerned a Sikh musician faced with deportation, their lordships held that account must be taken of the effects of deportation on others,not only family but those connected with the deportee in business or occupation or within his or her community. 
13. We respectfully disagree. 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. Furthermore, as the Tribunal explained in Nhundu and Chiwera, the Court considers factors such as employment and community ties and contribution to taxes etc as elements of private life. There is thus no basis for maintaining that the balancing exercise under Article 8 should in some way be more confined than the type of wide ranging one conducted under paragraph 364, albeit that paragraph of the immigration rules deals with the different context of deportation. Thus in our view paragraph 364 affords a very useful parallel to how adjudicators should go about the Article 8 balancing exercise. 
14. Mr Saunders' reliance on the starred Tribunal determination of Kehinde to prove the opposite is also misconceived. In Kehinde the Tribunal was at pains to clarify that, in a section 65 appeal, the right of appeal is limited to an inquiry into whether the relevant decision breaches the human rights of the person who is the subject of that decision. However the Tribunal went on to make clear this did not mean that the human rights of others affected by that decision were irrelevant if they impinged on the human rights of the appellant himself. Nor did Kehinde intend to exclude the need for a global assessment of a person's circumstances insofar as they concerned his private life and family life relationships. 
Interests of the state and the wider community 
15. We also agree with Mr Jackson that the balancing of the individual's right to respect for private and family life against the interests of the state and the wider community can never mean weighing fixed categories with fixed weight or meaning. It follows from the sovereign right of states to control entry and exit that central focus must be on the interest of the state in the maintenance of effective immigration control. And the Court's reference to the interests of the wider community is obviously a reference to the interest of the citizenry in general, not some subsection of that community. However, even the interest of the state in the maintenance of effective immigration control may not always mean its policy is to remove all persons here without lawful authority. And the interests of the wider community, precisely because they contain many different concerns and diverse opinions, may not always point entirely in the direction of removal. 
16. This we take to be part of what the Tribunal in Sukhjit Gill had in mind when it pointed out that "all aspects" of the Secretary of State's immigration policy must be taken into account, including those exercises of discretion in the form of policies which have sometimes exempted certain persons from deportation or removal who would otherwise have faced deportation or removal. 
17. However it does not seem to us that these types of variation take matters very far, particularly when, as here, the claimant in question does not even fall under the terms of some item of concessionary policy. Such variations may qualify to some extent, but do not gainsay, the interests of the state and the wider community in the maintenance of effective immigration control. Thus in our view it is-not open to an adjudicator to treat the interests of the state and wider community in the maintenance of effective immigration control as easily overridden. 
18. Where the adjudicator went wrong in this case was in his failure to approach the requisite balancing exercise by reference to objective criteria and in line with established Strasbourg jurisprudence on Article 8. Under that jurisprudence the Article 8 guarantee is not a vehicle for the exercise of some additional discretion (see Noruwa (01TH02345)) or for a subjective assessment of the value of an individual to the community or for the exercise of compassion. Any compassionate circumstances that obtain will be relevant to the exercise; but they Oo not govern it. As the Tribunal has set out in Nhundhu and Chiwera (and more recently in Krasniqi [2000] UKIAT 00231), adjudicators should conduct the Article 8 balancing exercise by reference to the principles as set out by the Court of Appeal in Mahmood [2001] INLR 1. From the Strasbourg jurisprudence the Master of the Rolls distilled the following propositions: 

"(1) A State has a right under international law to control the entry of non nationals into its territory, subject always to its treaty obligations. 
(2) Article 8 does not impose on a State any general obligation to respect the choice of residence of a married couple. 
(3) Removal or exclusion of one family member from a State where other members of the family are lawfully resident will not necessarily infringe article 8 provided there are no insurmountable obstacles to the family living together in the country of origin of the family members excluded, even where this involves a degree of hardship for some or all members of the family. 
(4) Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a State if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled. 
(5) Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates article 8. 
(6) Whether interference with family right is justified in the interest of controlling immigration will depend on 
(i) the facts of the particular case and
(ii) the circumstances prevailing in the State whose action is impugned". 
19. Whilst these conclusions primarily relate to cases of married couples they also reflect underlying principles applied in the case of persons relying upon private life relationships. 
20. Bearing in mind these conclusions, it is plain the adjudicator failed to make an objective assessment of the claimant's particular circumstances in the context of the broader interests of the community. He stated that he attached most importance to the fact that the claimant had "established strong community ties both in the work place and in outside". That may be so, but in assessing what weight to attach to these ties the adjudicator nowhere showed regard to the fact that the claimant had established them at a time when he was aware of the contingent nature of his immigration status. Nor did he appear to weigh in the balance the fact that the claimant did not arrive in the UK with lawful authority and was plainly not long established in the UK, having arrived in October 1998 and later given only 12 months exceptional leave. Nor, so far as the claimant's personal relationships are concerned, did he appear to weigh the fact that, apart from a brother, all members of his immediate family were in or based in the Federal Republic of Yugoslavia. Nor, albeit attaching significant weight to the claimant's ties with his community and his place of employment, did the adjudicator note the lack of any mention of any close or substantial emotional relationship(s) with anyone in the UK. 
21. It is true that in the instant case there was no evidence that the human rights of others were particularly threatened by the decision to remove the claimant. It is also true that the claimant was employed' as a bus driver in a sector experiencing skill shortages, that some financial investment has gone into his training and that he had paid taxes and had not had recourse to public funds except for a very short period. But neither these factors, nor his relationships with his local community meant that the claimant hid become established in the United Kingdom or had substantial ties here. 
22. As regards the claimant's circumstances upon return to Kosovo, we do not consider that any difficulties he might face with accommodation and employment would amount to anything more than hardships. He was young and fit and did not have children. 
23. It is a relevant factor that his employment in the UK enabled him to help his mother pay for vital operations in Turkey. However, we have very little specific evidence about this and certainly nothing to indicate that his return to Kosovo would mean the operations would not go ahead or would not eventually be paid for. 
24. Effectively in our view the adjudicator ignored or downplayed some very relevant factors in favour of magnifying the importance of the claimant's private life relationships with his own local community and the value of his work to the country. On the evidence before him, the conclusion he should have drawn, in accordance with established principles of Strasbourg jurisprudence, was that the decision appealed against in this case did not amount to a disproportionate interference with the claimant's right to respect for family and private life. 
25. In our earlier discussion of Sukhjit Gill we noted there was no discretionary policy applying to this claimant. As we understand it, that remains the case. However there are some indications from the latest February 2002 White Paper that a different view might in future be taken to persons already employed in the UK in sectors experiencing skill shortages. Since by virtue of s. 77 of the 1999 Act our concern in any Article 8 appeal must be with facts as they were at the date of the decision (in this case 18 June 2001), this development cannot help this claimant. Whether, however, any subsequent decision to implement his removal takes account of this development, is a matter for the Secretary of State. 
26. We should point out that we have not seen fit to address in this decision any issues relating to the "discretionary area of judgment" raised in Mahmood, Noruwa and other cases. That as simply because, as Mr Jackson rightly observed, in this case the Secretary of State never dealt expressly with the Article 8 issue prior to the hearing and was not represented at the hearing. Effectively, therefore, it was only dealt with for the first time by the appellate authority. Even if some degree of deference is due to the Article 8 decisions of the Secretary of State, that cannot be so when no such decision has been made. 
27. The appeal is allowed. 
Summary of conclusions 
1) The physical and moral integrity component of the right to respect for private life will only be of significant relevance in Article 8 cases in the field of asylum when there is an issue concerning a claimant's physical or bodily integrity or his moral well-being or mental health. It will not be to the fore in cases in which the claim under the right to respect for private life guarantee rests on the claimant's relationship with others and his role in society. 
2) The balancing exercise an adjudicator must conduct when considering whether a decision refusing asylum constitutes a disproportionate interference with a claimant's right to respect for his private and family life is no less wide-ranging than that required by paragraph 364 of HC395, albeit that deals with the different context of a deportation decision. Thus the interests of third parties in the claimant remaining in the UK are relevant factors. 
3) The balancing of the individual's right to respect for private and family life against the interests of the state and the wider community can never mean weighing fixed categories with fixed weight or meaning. However, whilst the interests of the state and the wider community may not always point entirely in the directions of removal, they cannot be easily overridden. 
4)Adjudicators should not equate Article 8 deliberation with a subjective ' N'-assessment of the value of an individual to the community or with the exercise of compassion or of some additional discretion. Rather they should conduct the Article 8 balancing exercise by reference to the principles as set out by the Court of Appeal in Mahmood. 
5) The adjudicator erred in this case because he ignored basic principles of Art 8 jurisprudence relating to deportation and removal cases, attaching no or too little weight to the fact that the claimant was not well established in the UK and too much weight to the nature of the claimant's employment and to his role in his local community. 
Dr H H STOREY