Edore v Secretary of State for the Home Department

On a human rights appeal under section 65 of the Immigration and Asylum Act 1999, where the essential facts are undisputed, the appellate authority must determine whether the immigration decision could reasonably be regarded as proportionate and as striking a fair balance. If it falls within the range of permissible responses, the authority cannot substitute its preferred balance. Proportionality involves judgment and balance, rather than an exercise of statutory discretion permitting substitution. Nevertheless, removal may fall outside that range in highly unusual circumstances. Permanent separation of young children from a father upon whom they are emotionally dependent can outweigh effective immigration control, despite their mother's serious immigration breaches and the precarious status under which the family was established.

The appellant, a Nigerian citizen, had remained in the United Kingdom unlawfully and had two young children with a British citizen. The father lived with his wife and three children of that marriage. He maintained regular contact with the appellant's children, supported them financially and provided a stable emotional influence. He could not and would not leave his existing family to accompany them to Nigeria. Their removal would therefore end their relationship with him.

A special adjudicator allowed the appellant's appeal under section 65 of the Immigration and Asylum Act 1999, finding removal disproportionate under Article 8 of ECHR. The Immigration Appeal Tribunal allowed the Secretary of State's appeal and reinstated the removal decision. The appellant appealed with permission. The central questions were whether the appellate authorities could substitute their own proportionality assessment where more than one fair balance was possible, and whether removal was permissible on these particular facts.

1. The appeal was allowed unanimously. Simon Brown LJ delivered the judgment, with which Waller and Kay LJJ agreed. The Immigration Appeal Tribunal's decision was set aside and the adjudicator's determination restored.

2. The statutory question under section 65 of the Immigration and Asylum Act 1999 was whether the decision under appeal infringed a Convention right. Where the essential facts were undisputed, the adjudicator had to determine whether the decision could reasonably be regarded as proportionate and as striking a fair balance between the competing interests. The Convention allowed the Secretary of State a discretionary area of judgment. Where the balance could fairly be struck either way, an adjudicator's preference for a different outcome did not establish a human rights breach (paras 15–20).

3. The analysis in Ismet Ala v Secretary of State for the Home Department, [2003] ECHC 521 (Admin), was adopted. That approach did not convert the appeal into judicial review. Nor did the discretionary area of judgment constitute an exercise of discretion within paragraph 21(1)(b) of Schedule 4. Proportionality was a matter of judgment and balance. The apparent tension within Noruwa was clarified by Baah, [2002] UK IAT 05998 (paras 16–20).

4. It was unhelpful to characterise proportionality as a question of law. The approach in B v Secretary of State for the Home Department, [2000] ImmAR 478, which required substitution of the court's own proportionality assessment, was incompatible with the approach required by section 65. That earlier case concerned a deportation decision directly appealable to the Tribunal on its merits under the Immigration Act 1971 (paras 21–23).

5. Removal plainly interfered with the appellant's and her children's Article 8 family life. The father's decision to remain in the United Kingdom did not sustain the Tribunal's contrary conclusion. The adjudicator had also adequately explained the adverse consequences: the children were emotionally dependent upon their father and removal would permanently deprive them of his love and support. Despite the appellant's flagrant immigration breaches, her precarious status and the need for effective immigration control, these highly unusual circumstances admitted only the balance struck by the adjudicator. The Secretary of State's decision therefore fell outside the range of permissible responses. Such cases might be uncommon, but this was one (paras 25–28).

The appeal was allowed with costs.

• Court of Appeal (Civil Division): In [2003] EWCA Civ 716 , unanimously allowed the appellant's appeal, set aside the Immigration Appeal Tribunal's decision and restored the adjudicator's determination.
• Immigration Appeal Tribunal: On 29 January 2003, allowed the Secretary of State's appeal and reinstated the decision to issue and serve removal directions.
• Special adjudicator: On 20 June 2002, allowed the appellant's appeal under section 65 of the Immigration and Asylum Act 1999, finding removal of the appellant and her children disproportionate under Article 8.