Secretary of State for the Home Department v Akaeke

In an immigration appeal under Article 8, the tribunal must make its own proportionality assessment while respecting the immigration policy expressed in the rules. Unreasonable administrative delay may be relevant to proportionality even without identified substantial prejudice. Where the administration of immigration control has seriously failed, that failure may reduce the weight of the general public interest in requiring a person to leave and apply for entry clearance abroad.

The weight of delay and the existence of exceptional circumstances are principally matters for the specialist tribunal. An appellate court should be cautious before disturbing its proportionality judgment unless there is an error of law.

The respondent had entered the United Kingdom unlawfully, unsuccessfully claimed asylum, and later married a British citizen. Her application to remain as a spouse was refused because the marriage followed enforcement action. A further application made in February 1999 was not determined for more than three years, despite repeated requests by her solicitors.

An adjudicator allowed her Article 8 appeal. The Immigration Appeal Tribunal dismissed the Secretary of State's appeal, holding that the delay and other circumstances made it disproportionate to require her to return to Nigeria to apply for entry clearance. The Secretary of State appealed on the question whether inexcusable delay, without substantial prejudice, could itself make removal disproportionate.

1. Appeal dismissed unanimously. Carnwath LJ, with whom Rix and Chadwick LJJ agreed, held that the Tribunal had been entitled to uphold the adjudicator's conclusion that requiring the respondent to return to Nigeria would be disproportionate.
2. The governing approach was that stated in Huang v Secretary of State [2005] EWCA Civ 105. A tribunal deciding both fact and law must make its own judgment on proportionality. It must not question the merits of the immigration policy embodied in the rules, and departure from that policy requires exceptional circumstances in which proportionality demands it.
3. Unreasonable delay by the Secretary of State may nevertheless be a relevant factor in the proportionality balance even where it has caused no distinct substantial prejudice. Senthuran [2004] EWCA Civ 950 showed that delay could be material to proportionality as well as to the extent of interference with family life. The public interest in immigration control is not immutable where the administration of that control has seriously broken down.
4. In this case, the unexplained delay exceeded three years and had been described by the Tribunal, without challenge, as a public disgrace. Although the ordinary rule required the respondent to leave and apply from abroad, the Tribunal was entitled to conclude that public confidence would not be materially advanced by rigidly enforcing temporary removal in those exceptional circumstances.
5. An appellate court should take a cautious supervisory approach to the proportionality judgments of a specialist immigration tribunal. Subject to legal error and procedural fairness, the Tribunal is better placed to assess exceptional circumstances, including the practical management of the immigration system. Its judgment was within its proper sphere and was to be respected.

• Court of Appeal (Civil Division): dismissed the Secretary of State's appeal in [2005] EWCA Civ 947 .
• Immigration Appeal Tribunal: dismissed the Secretary of State's appeal and upheld the adjudicator's Article 8 decision.
• Adjudicator: allowed the respondent's appeal, holding that removal to make an entry-clearance application would be disproportionate.