Secretary of State for the Home Department v Aga

In immigration cases engaging Article 8, the decision-maker must ask whether the circumstances are truly exceptional so as to override the general immigration policy which the Secretary of State is entitled to maintain. An adjudicator’s failure to apply that test makes the decision flawed.

An appellate tribunal must engage with the adjudicator’s reasoning, including material delay in resolving an asylum claim. It must assess family relationships in their proper context. Where both decisions below are defective, the appeal should be allowed and the matter remitted for reconsideration.

The respondent, a national of Kosovo, arrived in the United Kingdom aged 15 and lived with his older brother and the brother’s wife. The Secretary of State refused him leave to enter after his asylum claim remained unresolved for four years and eight months. An adjudicator dismissed the asylum appeal but allowed the Article 8 appeal, relying on family life, educational opportunity and length of residence.

The Immigration Appeal Tribunal allowed the challenge to that decision. The Court of Appeal considered whether the Tribunal had properly reviewed the adjudicator’s proportionality assessment, including the family relationship and the effect of delay.

Lord Justice Latham gave the first judgment. Lady Justice Hallett and the President agreed.

1. Disposition. The appeal was allowed and the matter was remitted to the Asylum and Immigration Tribunal for reconsideration. The appellant’s publicly funded costs were subject to detailed assessment.
2. The ground alleging that the adjudicator’s Article 8 conclusion was perverse was capable of engaging the question whether the correct proportionality test had been applied.
3. The appropriate test was that stated in Huang v Secretary of State for the Home Department [2005] 3 WLR 488: the circumstances had to be truly exceptional before they could override the general immigration policy which the Secretary of State was entitled to maintain. The adjudicator had not approached the case in that way, so his decision was flawed.
4. The Tribunal had nevertheless failed adequately to engage with the adjudicator’s reasoning. In particular, it treated the brother’s successful case as equivalent to the respondent’s case. The brother’s family life with his wife was different in kind from the respondent’s relationship with the family unit of which he was accepted to form part.
5. The Tribunal had also failed to address delay. The adjudicator was entitled to take delay in resolving the asylum claim into account, but had not explained whether he relied merely on the respondent’s length of residence or on disadvantage caused by the delay. His reasoning therefore could not safely support the result.
6. Neither decision below could stand. The proper course was reconsideration by the Tribunal.

• Court of Appeal (Civil Division): On 29 November 2005, allowed the appeal from the Immigration Appeal Tribunal and remitted the matter to the Asylum and Immigration Tribunal for reconsideration: [2005] EWCA Civ 1574.
• Immigration Appeal Tribunal: On 23 September 2004, allowed the challenge to the adjudicator’s decision.
• Adjudicator: On 11 September 2003, dismissed the asylum appeal but allowed the appeal on Article 8 human rights grounds.