Secretary of State for the Home Department v Vujnovic

On an Article 8 appeal, an adjudicator and the Immigration Appeal Tribunal have wide powers to assess facts and human-rights issues. Where the essential facts are undisputed, proportionality is reviewed by asking whether removal falls within the range of reasonable responses and strikes a fair balance. The appellate tribunal must not substitute personal preference. Where adjudicator findings substantially undermine the Secretary of State’s factual basis, the decision-maker may conduct the balance afresh while giving considerable weight to immigration-control policy. Adult age, military-service liability and absence of a home do not make removal disproportionate without evidence of dependency or other particular impact. The appeal was dismissed.

The respondent, a Bosnian national of Serb origin born in Croatia, entered the United Kingdom with his fiancée and claimed asylum. The Secretary of State rejected his asylum, Article 3 and Article 8 claims. An adjudicator accepted that he had family life in the United Kingdom and allowed the appeal under Article 8, finding removal disproportionate. The Immigration Appeal Tribunal accepted that family life existed but allowed the Secretary of State’s appeal, concluding that removal would not be disproportionate. The Secretary of State appealed to the Court of Appeal. The principal issues were the Tribunal’s power to reconsider the adjudicator’s proportionality assessment where the facts differed from those before the Secretary of State, and the factors relevant to proportionality.

1. Jurisdiction and appellate powers. Sections 65 and Schedule 4 to the Immigration and Asylum Act 1999 gave both the adjudicator and the Immigration Appeal Tribunal wide powers. They could hear evidence, reach their own factual conclusions and correct errors of fact or law. The Tribunal could affirm the adjudicator or make any determination the adjudicator could have made. Its ordinary practice was to accept the adjudicator’s factual findings unless plainly wrong, but that practice did not restrict its jurisdiction.
2. Undisputed facts. Where the essential facts were not in dispute, the Article 8 task was to decide whether the Secretary of State’s decision was within the range of reasonable responses and could reasonably be regarded as proportionate in striking a fair balance. The adjudicator could not substitute a personal preference for the decision taken. This approach was stated in Edore v Secretary of State for the Home Department [2003] EWCA Civ 716, following the analysis in Ismet Ala v Secretary of State for the Home Department [2003] ECH 521 (Admin).
3. Different factual basis. If the adjudicator’s findings substantially undermined the factual basis of the Secretary of State’s decision, it might be impossible to apply the reasonable-responses approach. The adjudicator or Tribunal could then undertake the proportionality balance itself, while giving considerable deference to the Secretary of State’s assessment of the importance of effective immigration control. The Court followed the approach in Djali v The Immigration Appeal Tribunal [2003] EWCA Civ 1371 and Secretary of State for the Home Department v The Queen on the Application of Razgar [2003] EWCA Civ 840.
4. Application. The Tribunal was entitled to reconsider the adjudicator’s proportionality decision. The relevant balance was between the interference with family life caused by removal and the need for effective immigration control. The respondent was an adult, and there was no evidence of dependence on his brother or fiancée. His liability to military service and lack of a home in Bosnia or Croatia did not materially increase the impact on his family life. Article 8 did not confer a right to a home.
5. Disposition. The respondent had not shown an error of law in the Tribunal’s approach. The appeal was dismissed. Leave to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): The appeal was dismissed. Leave to appeal to the House of Lords was refused.
2. Immigration Appeal Tribunal: The Tribunal accepted that the respondent had established family life in the United Kingdom but held that removal to Bosnia would not be disproportionate. It allowed the Secretary of State’s appeal and refused permission to appeal.