Edore v Secretary of State for the Home Department

The Court of Appeal considered an appeal under section 65 of the Immigration and Asylum Act 1999 raising Article 8 ECHR proportionality issues. The court held that on a s65 human rights appeal, where the essential facts are not in dispute, the adjudicator must decide whether the Secretary of State's decision was outside the range of reasonable or permissible responses and therefore incompatible with Convention rights; only if the decision was outside that range may the appeal be allowed.

Applying that test to the facts, the court concluded that the adjudicator had correctly found that removal would disproportionately interfere with the family life of the appellant and her two children, who were emotionally dependent on their father in the United Kingdom, and that the Immigration Appeal Tribunal was wrong to substitute its own assessment. The IAT's decision was set aside and the adjudicator's determination restored.

Background and parties: The appellant, a Nigerian national who entered the United Kingdom illegally in 1990, had two young children by a British citizen who continued to live with his wife and other children. The Secretary of State sought removal of the appellant and her children to Nigeria. The appellant appealed under section 65 of the Immigration and Asylum Act 1999, asserting an Article 8 ECHR claim that removal would unjustifiably interfere with family life.

Procedural history: An adjudicator allowed the appellant's s65 appeal on 20 June 2002, finding removal would be disproportionate. The Immigration Appeal Tribunal allowed the Secretary of State's appeal on 29 January 2003 and reinstated removal directions. The appellant obtained permission to appeal to the Court of Appeal.

Nature of the application and issues: (i) The appeal was brought under s65 alleging the Secretary of State had acted incompatibly with Article 8; (ii) the principal legal issue was the scope of the adjudicator's and Tribunal's appellate jurisdiction on s65 appeals—specifically whether those authorities may substitute their own view where there is room for two reasonable conclusions on proportionality; (iii) the subsidiary issue was whether, applying the correct test, the IAT was right to uphold removal in this case.

Court's reasoning: The court analysed the statutory framework (s65, section 6(1) HRA 1998 and paragraphs 21 and 22 of Schedule 4 to the 1999 Act) and recent authority. It accepted the analysis in Ismet Ala that the appellate authority's task is to decide whether the Secretary of State's decision was within the range of reasonable responses such that it did not breach Convention rights. The court distinguished earlier approaches that treated proportionality as exclusively a question of law and emphasised that the Convention concept of proportionality allows a decision-maker a discretionary area of judgment: when the balance could reasonably be struck either way, the Secretary of State's decision will not be unlawful.

Application to the facts: The court found the IAT had erred in its reasoning: the adjudicator had explained how removal would adversely affect the children, who were emotionally dependent on their father and would be permanently deprived of his support if returned to Nigeria. Given those findings of fact, the court concluded that only one reasonable conclusion could be reached and that the Secretary of State's decision fell outside the permissible range. The court therefore restored the adjudicator's decision.

Wider context: The court noted that the appellate authorities' jurisdiction is not merely review; there will be relatively few but real occasions where the balance struck by the Secretary of State is wrong and the appeal should be allowed.

Appeal allowed. The Court held that on a s65 appeal where facts are not in dispute the adjudicator must determine whether the Secretary of State's decision was outside the range of reasonable responses and therefore incompatible with Article 8; applying that test the IAT was wrong to uphold removal and the adjudicator's decision that removal would be disproportionate was restored.

Adjudicator (Mrs Frudd) allowed the s65 appeal on 20 June 2002. The Immigration Appeal Tribunal allowed the Secretary of State's appeal and reinstated removal directions on 29 January 2003. Permission to appeal to the Court of Appeal was granted and the Court of Appeal allowed the appellant's appeal ([2003] EWCA Civ 716).