Shrimpton v Secretary of State for the Home Department

In an Article 8 immigration appeal, the appellate tribunal must determine proportionality for itself. It must respect the general balance between immigration control and private rights reflected in the Immigration Rules, but it must not defer to the Secretary of State’s assessment by applying a Wednesbury-range-of-reasonableness test.

Removal or deportation outside the Rules will ordinarily be proportionate. An appeal can succeed only in the small residue of truly exceptional cases where proportionality requires that the individual’s Article 8 right prevail. Where a tribunal applied the wrong test, remittal is required if a properly directed tribunal could lawfully find the case exceptional.

The appellant, a South African citizen, had been convicted of serious drug-importation offences and was the subject of a deportation order. After his release, he worked lawfully, achieved substantial rehabilitation and remained married to a British citizen who suffered from ME.

An adjudicator allowed his appeals against refusal of leave to remain and deportation on Article 8 grounds. The Immigration Appeal Tribunal allowed the Secretary of State’s appeal. It held that deportation was lawful unless the Secretary of State’s decision fell outside the range of reasonable responses.

The appellant appealed to the Court of Appeal. The central issue was whether the Tribunal’s approach to Article 8 proportionality was erroneous and, if so, whether the error could have affected the result.

Appeal allowed unanimously and remitted to the Asylum and Immigration Tribunal.

1. Per Laws LJ, with whom Sir Peter Gibson and Chadwick LJ agreed, the Immigration Appeal Tribunal had applied the approach in M (Croatia). It asked whether deportation was within the range of reasonable responses open to the Secretary of State. That approach was erroneous following Huang and Others [2005] EWCA Civ 105.

2. In a statutory appeal raising Article 8, the adjudicator must decide proportionality himself or herself. The tribunal must respect the balance struck by the Immigration Rules between immigration control and private rights. It must nevertheless allow an appeal where the facts are truly exceptional and proportionality requires an outcome outside the Rules. The restriction is the exceptional nature of the case, not deference to the Secretary of State’s individual assessment through a Wednesbury test.

3. The error was material unless the court could conclude that the only lawful outcome was that the case was not exceptional. The appellant’s grave drug offending, the public interest in deportation, his knowledge that his immigration position was precarious when he married, and the availability of a later application to revoke deportation were powerful contrary factors.

4. However, his rehabilitation, employment and his wife’s long-standing illness and possible inability to accompany him to South Africa meant that the court could not exclude the legal possibility of an exceptional case. The fresh evidence was late and attracted scepticism, but its weight and admissibility were matters for the tribunal. The appellant was entitled to a lawful determination by the proper tribunal.

The appeal was allowed, the matter remitted for reconsideration under the correct Article 8 test, and no order for costs was made.

• Court of Appeal (Civil Division): Allowed the appellant’s appeal in [2005] EWCA Civ 1381 and remitted the Article 8 proportionality issue to the Asylum and Immigration Tribunal.
• Immigration Appeal Tribunal: On 27 January 2005, allowed the Secretary of State’s appeal and overturned the adjudicator’s Article 8 determination.
• Adjudicator: In May 2003, allowed the appellant’s appeals against refusal of leave to remain and deportation, holding that the decisions violated Article 8 of the European Convention on Human Rights.