Jasarevic v Secretary of State for the Home Department

In immigration removal cases, Article 8 private life has a broad and generous scope. Long residence and personal connections can engage Article 8(1), even where residence has been unlawful. But removal to maintain immigration control will be disproportionate only in an exceptional, indeed very exceptional, case. Relevant factors such as residence, health and relationships must be assessed, but do not automatically outweigh immigration control. Where an adjudicator errs in law, the Immigration Appeal Tribunal may determine the issue itself rather than remit it.

The appellant challenged removal directions issued after refusal of his asylum application. An adjudicator rejected the asylum and Article 3 claims, but found that the appellant’s private life engaged Article 8 and that removal would be disproportionate.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal. It held that Article 8 was not engaged or, alternatively, that the case was not sufficiently exceptional to make removal disproportionate. The Court of Appeal considered the adequacy of the grounds of appeal, the scope of Article 8 private life, the proportionality assessment and whether the Tribunal could determine the issue without remitting it.

Appeal dismissed unanimously.

1. The Immigration Appeal Tribunal’s jurisdiction depended on a point of law being reasonably discernible from the grounds on which permission to appeal was given. The grounds had to be read fairly and reasonably, without a pedantic approach, but with the objective of identifying a legal point. This approach was consistent with B v Secretary of State for the Home Department [2005] EWCA Civ 61, Miftari v Secretary of State for the Home Department [2005] EWCA Civ 481, R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 and ZT v Secretary of State for the Home Department [2005] EWCA Civ 1421. Three points of law could be extracted from the grounds.
2. The Tribunal’s initial view that Article 8(1) could not be engaged was difficult to sustain. Razgar required a broad and generous understanding of private life. A person’s long residence and range of connections in the United Kingdom could not be treated as incapable of engaging Article 8 as a matter of course.
3. Nevertheless, the Tribunal was entitled to conclude that removal was not disproportionate. In the context of immigration control, only an exceptional, indeed very exceptional, case would justify treating removal as disproportionate. Length of residence, mental and physical health, and relationships in the United Kingdom were material factors, but the facts identified by the adjudicator did not establish disproportionality as a matter of law. The Tribunal relied on the guidance in Razgar and Ullah.
4. Once an error of law had been identified, the Tribunal was entitled to determine the issue itself rather than remit it to the adjudicator, in accordance with R (Iran) v Secretary of State for the Home Department.
5. The possible effect of paragraph 276A of the Immigration Rules was not decisive because the point had not been raised before and could not itself demonstrate error in the adjudicator’s decision. The appeal was dismissed, with costs to be agreed or assessed by Lord Justice Buxton.

1. Court of Appeal (Civil Division): dismissed the appeal against the Immigration Appeal Tribunal’s determination: [2005] EWCA Civ 1784.
2. Immigration Appeal Tribunal: allowed the Secretary of State’s appeal, holding that Article 8(1) was not engaged or, alternatively, that removal was not disproportionate.
3. Adjudicator: rejected the asylum and Article 3 claims, but allowed the human-rights appeal after finding that private life was engaged and removal disproportionate.