Dbeis & Ors v Secretary of State for the Home Department

In an Article 8 immigration appeal, the Adjudicator must make his or her own proportionality judgment. It is insufficient to ask whether the Secretary of State’s decision was one which no reasonable Secretary of State could make. An onward appeal to the Immigration Appeal Tribunal after 9 June 2003 is confined to errors of law. If the Tribunal applies the wrong standard but the material before the Adjudicator could not establish an exceptional case, the appellate court may uphold the result where a correctly directed Tribunal would have been bound to reach it. Superior medical or educational support in the United Kingdom than in the country of return does not, without more, make removal disproportionate or override the public interest in immigration control.

The principal appellant, a Lebanese citizen, arrived in the United Kingdom with her two young sons and claimed asylum. The asylum claim was rejected and was no longer in issue. Her Article 8 claim relied particularly on the circumstances of her son, Tarek, who has cerebral palsy and received specialist educational support in the United Kingdom.

An Adjudicator dismissed the appeal on 28 July 2003. The Immigration Appeal Tribunal dismissed the onward appeal on 3 September 2004. The Court of Appeal considered whether the Tribunal had applied the wrong approach to proportionality, whether it had materially misunderstood the evidence, and whether the appeal should nevertheless be dismissed because the Adjudicator had made no error of law and no exceptional Article 8 case had been shown.

Disposition. Lord Justice Carnwath gave the judgment, with Lord Justices Longmore and Chadwick agreeing. The appeal was dismissed.

1. Article 8 approach. The structured inquiry identified in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 227, [2004] 3 WLR 58, requires consideration of interference, its gravity, lawfulness, legitimate aim and proportionality. The final stage requires a fair balance between individual rights and the interests of the community.
2. Adjudicator’s function. Under Huang and others v Secretary of State [2005] EWCA Civ 105, the Adjudicator must exercise his or her own judgment on proportionality and decide whether there has in substance been a violation of Convention rights. The task is not confined to asking whether the Secretary of State’s decision fell within reasonable limits. The Tribunal’s contrary approach was conceded to be legally wrong.
3. Scope of the onward appeal. Because the Adjudicator’s decision post-dated 9 June 2003, section 101(1) of the Nationality, Immigration and Asylum Act 2002 confined the appeal to issues of law. As explained in CA v Secretary of State [2004] EWCA Civ 1165, the Tribunal had to identify an error of law on the material before the Adjudicator. The court did not need to resolve whether human-rights review may require more than conventional Wednesbury review.
4. Application. The material before the Adjudicator did not undermine his conclusion that adequate medical facilities and education were available in Lebanon or establish an exceptional case. The loss of the higher educational support available in the United Kingdom, although harsh, did not suffice to override immigration control. The later evidence was not strictly admissible before the Tribunal and did not materially alter the evidential picture. A fresh application to the Home Secretary was not excluded.

The order was that the appeal be dismissed, with no order for costs save for detailed assessment of the appellant’s public funding certificate.

1. Court of Appeal (Civil Division). On 19 May 2005, the court dismissed the appeal from the Immigration Appeal Tribunal: [2005] EWCA Civ 584.
2. Immigration Appeal Tribunal. On 3 September 2004, the Tribunal refused the appeal against the Adjudicator’s decision.
3. Adjudicator. On 28 July 2003, the Adjudicator rejected the asylum and human-rights grounds.