Mukarkar v Secretary of State for the Home Department

Removal of a seriously ill dependant relative will meet the high Article 3 threshold only where the person has reached a critical stage and compelling humanitarian grounds prevent removal. Family dependency and the requirements of the Immigration Rules concern Article 8, not Article 3.

Under Article 8, immigration control will normally justify interference with family life. Exceptional cases are identified by a fact-sensitive proportionality judgment, not a further legal formula. A specialist tribunal's properly reasoned assessment cannot be displaced merely because another tribunal might reasonably reach a stricter view. In assessing whether return to seek entry clearance is proportionate, it is material whether the resulting absence and loss of family care would be limited or indeterminate.

The appellant, a Yemeni national, entered the United Kingdom by deception and later sought indefinite leave to remain as a dependant relative under rule 317 of the Immigration Rules. He had become frail and dependent on daily care from his extensive family in the United Kingdom.

An Adjudicator allowed his human-rights appeal under Articles 3 and 8. The Asylum and Immigration Tribunal found an error of law and transferred the case for reconsideration. A single Immigration Judge then dismissed the appeal. The appellant appealed to the Court of Appeal from the Tribunal proceedings, identified as HR/00385/2004.

The central issue was whether the Adjudicator's conclusion that removal would be disproportionate under Article 8 disclosed an error of law.

1. Appeal allowed. Carnwath LJ, with whom Sedley and Auld LJJ agreed, held that the Adjudicator's Article 8 conclusion was not erroneous in law. The Asylum and Immigration Tribunal should therefore have upheld it.
2. The Article 3 claim could not succeed. Applying N v SSHD [2005] UKHL 31, illness and lack of social care on return engaged Article 3 only at a critical stage with compelling humanitarian grounds. The appellant's condition had not reached that level. His family relationships and his possible eligibility under rule 317 belonged to the Article 8 assessment.
3. Article 8 was engaged because removal would seriously disrupt established family life and daily dependency. Immigration control normally justified that interference. However, exceptional cases were to be identified case by case, without a precise supplementary legal test. The Adjudicator had correctly treated proportionality as a factual judgment and had given full reasons for finding exceptional circumstances.
4. R (Ekinci) v Secretary of State [2003] EWCA Civ 765 did not make the likely outcome of a future entry-clearance application decisive in this case. The relevant question was whether it was reasonable to require family members to leave their employment and commitments to provide care abroad for a defined short period or for an indeterminate one.
5. The objections concerning public or private care in Yemen challenged the weight of evidence, not an error of law. Although the appellant had a burden to establish exceptional circumstances, the parties and tribunal shared responsibility for obtaining the best available evidence. Medical provision was not an equivalent substitute for the family care on which he depended.
6. The Adjudicator's reference to queue-jumping was not essential to the result. The exceptional circumstances were the appellant's need for constant care, his close family relationships in the United Kingdom, and the absence of equivalent care on return. Sedley LJ additionally observed that, where a reconsideration identifies only a discrete defect, the Tribunal should confine any remittal accordingly and preserve unaffected factual findings.

• Court of Appeal (Civil Division): allowed the appellant's appeal and held that the Asylum and Immigration Tribunal should have upheld the Adjudicator's decision.
• Asylum and Immigration Tribunal: found an error of law in the Adjudicator's determination, transferred the case for reconsideration, and a single Immigration Judge subsequently dismissed the appeal.
• Adjudicator: allowed the appellant's human-rights appeal under Articles 3 and 8 in proceedings identified as HR/00385/2004.