Mongoto v Secretary of State for the Home Department

An immigration appellate authority deciding an appeal on article 8 grounds must determine proportionality for itself. It must allow the appeal where the particular facts are truly exceptional and the imperative of proportionality requires an outcome outside the Immigration Rules. This is not a Wednesbury review of the Secretary of State's decision, although the authority must respect the balance struck by the Rules.

A limited, rational and lawful concession creates no analogous expectation or approaching enforceable right for people outside its stated scope. Nor does compassionate leave granted to one family member necessarily favour another family member's claim. An error in applying the wrong proportionality approach does not require relief where the facts could not support the article 8 claim under the correct approach.

The appellant, a citizen of the Democratic Republic of Congo, had been detained and maltreated because of his human rights activities. His wife, who had been raped during unrest, had received four years' exceptional leave to remain in the United Kingdom. The Secretary of State refused the appellant's asylum claim and directed his removal.

An adjudicator found that the family could live safely in Kinshasa and rejected the appellant's asylum, human rights and internal-relocation cases. The Immigration Appeal Tribunal dismissed his appeal. Its jurisdiction under section 101(1) of the Nationality, Immigration and Asylum Act 2002 was limited to points of law.

The Court of Appeal considered whether a new country report required reconsideration and whether removal would disproportionately interfere with family life under article 8 of the European Convention on Human Rights. The central article 8 issue was governed by Huang & ors [2005] EWCA Civ 105, which had been decided after the appellate authorities' determinations.

1. The appeal was dismissed unanimously. The adjudicator and the Immigration Appeal Tribunal had made an error of law by applying the approach in M (Croatia) [2004] UKIAT 00024. The appellate authority's task was not to ask whether removal was so disproportionate that no reasonable Secretary of State could have ordered it. Under Huang & ors [2005] EWCA Civ 105, it had to decide proportionality for itself and determine whether the particular facts were truly exceptional.

2. The correct approach still required respect for the balance between the public interest and private rights struck by the Immigration Rules with Parliament's approval. The Rules would generally resolve article 8 proportionality, but they were not exhaustive. An appeal could succeed outside them where the imperative of proportionality required that exceptional result.

3. The error of law did not assist the appellant because the facts were incapable of supporting a truly exceptional case. The family could live safely together in Kinshasa; the parents were young, fit and experienced in business; the children were sufficiently young to adapt; and no insurmountable obstacle prevented family life continuing there. Alternatively, the appellant could seek entry clearance after returning.

4. The grant of exceptional leave to the appellant's wife did not weigh materially in his favour. It had been a compassionate decision for a woman alone with a three-day-old child who did not know whether her husband was alive. Treating that decision as generating a legally significant expectation for him would unjustifiably discourage special compassionate decisions.

5. The appellant could obtain no analogical support from the Secretary of State's family concession because he fell outside its express criteria. A rational and lawful policy limited to specified categories does not create approaching enforceable rights for those whom it does not cover.

6. The later United States State Department report did not undermine the findings that the appellant would be safe in Kinshasa. The promotion of former rebel officers formed part of an emerging reconciliation process and did not show an enhanced risk to him. The proposed rehearing point therefore failed.

7. The asserted narrowing of the Strasbourg margin of appreciation since Abdul Aziz [1985] 7 EHRR 471 did not illuminate the domestic appellate question. Jakupovic [2004] 38 EHRR 27, concerning the expulsion of an unaccompanied 16-year-old to a country recently affected by armed conflict, provided no useful factual comparison.

1. Court of Appeal (Civil Division): Dismissed the appeal unanimously. Although the adjudicator and Immigration Appeal Tribunal had applied an incorrect article 8 approach, the claim could not have succeeded under Huang & ors [2005] EWCA Civ 105.

2. Immigration Appeal Tribunal: By a determination promulgated on 25 March 2004, dismissed the appeal and agreed that the family could relocate safely to Kinshasa. It applied M (Croatia) [2004] UKIAT 00024 to the article 8 issue.

3. Adjudicator: On 7 July 2003, dismissed the appeals on asylum and human rights grounds. The adjudicator found that relocation to Kinshasa was safe and not unduly harsh, and that removal was proportionate under article 8.