Rahman v Secretary of State for the Home Department

In an Article 8 appeal, a tribunal must investigate the real substantive issue and reach an informed decision on the relevant facts. It cannot dispose of the case by mechanically allocating the burden of proof between Article 8(1) and Article 8(2). Where removal is justified on the basis that family life can be established abroad, the circumstances of the family member expected to leave must be examined. The Secretary of State has a public responsibility to assist the tribunal, particularly where relevant information is held on the immigration file. Failure to investigate those matters may constitute an error of law requiring remittal.

The appellant, an Iraqi citizen, appealed against the Asylum and Immigration Tribunal’s dismissal of her appeal from an adjudicator’s refusal of her asylum claim and directions for removal to Iraq. Permission to appeal was granted only on the complaint that the adjudicator had failed properly to consider her claim under Article 8 of the European Convention on Human Rights.

The appellant had married an Iraqi man who held exceptional leave to remain in the United Kingdom. The adjudicator considered that she could return to Iraq and apply for entry clearance as his spouse. The AIT upheld the result, reasoning that the case was not truly exceptional and that the husband could accompany her. The central issue was whether the proportionality of that course had been properly examined, including the husband’s circumstances.

1. Appeal allowed. The AIT’s determination was set aside and the matter was remitted for rehearing.

2. The court rejected a purely formal analysis of whether the issue belonged under Article 8(1) or Article 8(2). The tribunal had to address the substantive question whether it was reasonable to expect the appellant’s husband, who had exceptional leave to remain, to return to Iraq, and whether the resulting interference with family life was proportionate to a legitimate aim.

3. The adjudicator had dealt with Article 8 superficially, while the AIT had not materially advanced the analysis. The relevant facts, particularly the basis on which the husband had been granted exceptional leave and the risks he might face on return, had not been investigated.

4. Although the AIT’s procedure was predominantly adversarial, it had to put itself in a position to decide the real issues. The Secretary of State had a public responsibility to assist that task. If relevant documents were held by the Home Office but not produced, the tribunal should be prepared to draw an appropriate inference.

5. The appellant’s marriage while her immigration status was insecure might create substantial difficulties on the merits, but success was not shown to be impossible. Issues concerning safe travel to Jordan, the husband’s accompanying her, and relevant family-member policies could be considered on remittal if they arose.

Lord Justice Sedley agreed, emphasising that the grant of exceptional leave was prima facie evidence that there might be a good reason why the husband should not presently be expected to return to Iraq. Lord Justice Ward agreed with both judgments. The respondent was ordered to pay the appellant’s costs, subject to assessment.

• Court of Appeal (Civil Division): Appeal allowed; the matter was remitted to the Asylum and Immigration Tribunal for rehearing.
• Asylum and Immigration Tribunal: On 24 May 2005, dismissed the appellant’s appeal from the adjudicator’s determination.
• Adjudicator: On 12 May 2004, dismissed the appellant’s appeal against the Secretary of State’s refusal of asylum and directions for removal.
• Secretary of State: On 21 January 2004, refused the asylum claim and set removal directions.