N v Secretary of State for the Home Department

In an Article 8 removal case, the lawful operation of immigration control carries considerable weight. Removal will usually be proportionate unless the individual circumstances are truly exceptional. Emotional dependency on persons in the United Kingdom and distress caused by separation are relevant, but must be sufficiently significant to outweigh that public interest.

An appellate court will not interfere with a specialist tribunal’s evaluative assessment unless a material error of law is shown. Its reasons must be read fairly and as a whole. An apparent inconsistency should, where possible, be reconciled with the tribunal’s express treatment of the evidence.

The appellant, a Kenyan national who had grown up in Uganda, entered the United Kingdom using a false passport. After his temporary leave expired, the Secretary of State proposed his removal to Kenya. His Article 8 claim relied on his close relationship with the Wells family, his education and athletics, psychiatric evidence of vulnerability, and the anticipated hardship of return.

The Asylum and Immigration Tribunal dismissed the appeal. It found an interference with private life, but not family life, and held that removal was proportionate. The appellant appealed, alleging inconsistency in the Tribunal’s treatment of psychiatric evidence and material errors in its proportionality assessment.

1. Appeal dismissed. The court granted permission on the renewed grounds but held that the Tribunal’s decision disclosed no material error of law.

2. The Tribunal had correctly approached the Article 8 claim by applying the five questions in Razgar. Once it had found that removal interfered with the appellant’s private life, it was unnecessary to decide whether the relationship with the Wells family also constituted family life. The Tribunal had in any event assessed proportionality on the assumption most favourable to the appellant.

3. The Tribunal’s statement that the appellant was fit, healthy and without physical or mental disability had to be read in context. It addressed his present ability to manage daily life. Read with its detailed and accepted account of Dr Bell’s evidence, it did not contradict the evidence that removal could precipitate serious psychiatric deterioration.

4. The Tribunal had considered the unusually close and supportive relationship with the Wells family, the psychiatric evidence, and the hardship likely on return to Kenya. It was entitled to find that support and contact could continue to some extent from abroad, and that treatment would be available if required. Its error concerning the evidence about athletic opportunities in Kenya, and its limited discussion of other country evidence, did not go to the root of the proportionality assessment.

5. Under European Convention on Human Rights Article 8, a relationship of dependency involving an adult does not by itself make removal disproportionate. The dependency must be sufficiently significant to outweigh the considerable public interest in lawful immigration control. The appellant had formed the relationship while his status was precarious and had never had more than temporary exceptional leave. The Tribunal’s conclusion that the case was not truly exceptional was open to it.

• Court of Appeal (Civil Division): by [2006] EWCA Civ 1166, granted renewed permission to appeal but dismissed the appeal on all grounds.
• Asylum and Immigration Tribunal: dismissed the appellant’s Article 8 appeal against the proposed removal to Kenya (AIT No. AS/15631/2004).