Edore v Secretary of State for the Home Department

On a human-rights appeal against removal, the appellate question is whether the Secretary of State’s decision was proportionate and struck a fair balance between effective immigration control and the individual’s Article 8 rights. Where the essential facts are undisputed, the Secretary of State has a discretionary area of judgment. An adjudicator may not substitute a personally preferred outcome merely because another balance could reasonably have been struck. The appeal must be allowed where the decision falls outside the range of reasonable responses and the balance is therefore unfair. The appellate authority must nevertheless form its own conclusion on that question. In this unusual case, removal of a mother and her two young children to Nigeria, permanently separating the children from their British father, fell outside that range.

The appellant, a Nigerian citizen who had entered the United Kingdom unlawfully, appealed under section 65 of the Immigration and Asylum Act 1999. A special adjudicator allowed her appeal, finding that removal of her and her two children to Nigeria would be disproportionate under Article 8 of the ECHR.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal and restored the removal directions. It held that any interference with family life resulted from the father’s choice to remain in the United Kingdom and that removal was proportionate. The appellant appealed to the Court of Appeal. The central issues were the proper scope of the appellate jurisdiction under section 65 and whether removal was, on the facts, a proportionate interference with family life.

1. Appeal allowed. The IAT’s decision was set aside and the adjudicator’s decision restored, with costs.
2. Section 65 requires the appellate authority to determine whether the immigration decision breached the appellant’s Convention rights. In an Article 8 case, the relevant question is whether the Secretary of State struck a fair balance between effective immigration control and the claimant’s family-life rights.
3. Where the essential facts are not disputed, the Secretary of State has a discretionary area of judgment. Two opposing conclusions may both fall within the range of proportionate responses. An adjudicator cannot allow an appeal merely because he would have struck the balance differently, and cannot substitute his own preference under paragraph 21(1)(b) of Schedule 4 to the Immigration and Asylum Act 1999.
4. The appellate authority’s function is nevertheless a genuine appellate one. It must reach its own conclusion on proportionality. It is not confined to asking whether the Secretary of State’s decision was irrational or whether it was reasonably open to him in the conventional Wednesbury sense. The appeal succeeds where the decision is outside the range of reasonable responses and the balance is unfair.
5. The approach previously taken in B v Secretary of State for the Home Department [2000] ImmAR 478 was not to be followed under section 65. It was unhelpful to characterise proportionality as a question of law in this context. The court also noted that B had been decided under a materially different statutory appeal regime.
6. On the facts, the IAT’s reasoning was unsustainable. Removal plainly interfered with the children’s Article 8.1 family life. The children were emotionally dependent on their father, who provided regular contact, love, financial support and stability. In the highly unusual circumstances, only one view of the fair balance was reasonably available: removal was disproportionate.

• Court of Appeal (Civil Division): [2003] EWCA Civ 716. Appeal allowed. The IAT’s decision was set aside, and the special adjudicator’s decision dated 20 June 2002 was restored.
• Immigration Appeal Tribunal: On 29 January 2003, the Secretary of State’s appeal from the adjudicator was allowed and the removal decision reinstated.
• Special adjudicator: On 20 June 2002, the appellant’s section 65 appeal was allowed because removal would be disproportionate under Article 8.