Krasniqi v Secretary of State for the Home Department

An appellate immigration tribunal may interfere with an immigration judge’s factual findings only where they are demonstrably erroneous or baseless, rather than merely debatable, and potentially determinative of the outcome. A disagreement about the weight of evidence does not disclose an error of law.

In an article 8 removal case, lawful immigration control will ordinarily make removal proportionate. A case must therefore stand out from the general run of sympathetic private or family life cases through compelling humanitarian considerations. Exceptionality is an aspect of proportionality, not a separate legal requirement. An evidence-based finding of exceptionality cannot be displaced unless the evidence was incapable of sustaining it.

The appellant, a Serbian citizen of Albanian ethnicity, claimed asylum after suffering serious domestic and state-related violence. While awaiting a decision, she formed a stable household in the United Kingdom with another asylum-seeker and that woman’s child. The adjudicator rejected the asylum and articles 2 and 3 claims but allowed the appeal under article 8 of the European Convention on Human Rights.

The Asylum and Immigration Tribunal allowed the Home Secretary’s appeal. It characterised several of the adjudicator’s factual conclusions as material errors of law and substituted a finding that removal would not be disproportionate. The appellant appealed to the Court of Appeal, contending principally that the Tribunal had identified no error of law capable of supporting its intervention.

1. Appeal allowed. The Asylum and Immigration Tribunal had no power to interfere with the adjudicator’s determination. The adjudicator’s decision allowing the article 8 appeal was restored.

2. Under section 101(1) of the Nationality, Immigration and Asylum Act 2002, the Tribunal’s jurisdiction was confined to questions of law. A challenge to a factual finding acquired a legal dimension only where the finding was demonstrably erroneous or baseless, rather than merely debatable, and was capable of affecting the outcome. Permission should not be granted unless that standard was met. The Tribunal could clarify nebulously expressed grounds and, exceptionally, identify an obvious overlooked point of law, but it had to identify genuine legal issues with rigour: paras 17–20.

3. The Tribunal had identified no such error. Its conclusion that there was no evidence preventing the two women from living together in Serbia or Kosovo overlooked accepted and uncontroverted expert evidence. Voluntary departure by the appellant’s partner was immaterial because the evidence showed that they could not live together in either country. The adjudicator was entitled to evaluate the practical difficulty of obtaining entry clearance. The psychiatric evidence was capable of sustaining the finding of a real risk of self-harm following separation: paras 24–29.

4. Exceptionality was an aspect of the legal concept of proportionality. Lawful immigration control ordinarily made removal proportionate, so only a small minority of cases involving compelling humanitarian considerations would justify a contrary conclusion. The question was whether the case stood out from the general run of sympathetic private or family life claims, not whether it fell outside ordinary human experience: paras 30–31.

5. The adjudicator had adequately explained why this case was exceptional. Her conclusion rested on the cumulative effect of the women’s experiences of rape, cultural stigma, psychological fragility, mutual dependence, shared care of the child and the extreme unlikelihood that enforced separation could be reversed. The Tribunal could intervene only if that evidence was incapable of sustaining the proportionality conclusion. Its disagreement with the adjudicator’s evaluation was insufficient: paras 32–34.

6. Arden LJ added that, where neither partner has permission to remain, the state need not ordinarily accept their choice of the United Kingdom as the place for family life. The relationship’s formation while immigration status was precarious was relevant. A successful article 8 claim required an inability to establish family life in either partner’s country or another special reason why they could not reasonably live there. The adjudicator had found such reasons here: paras 35–36.

1. Court of Appeal (Civil Division): Allowed the appellant’s appeal and restored the adjudicator’s determination allowing the article 8 claim: [2006] EWCA Civ 391.

2. Asylum and Immigration Tribunal: Allowed the Home Secretary’s appeal, held that the adjudicator had made material errors of law and substituted a decision rejecting the article 8 claim.

3. Adjudicator: Rejected the asylum and articles 2 and 3 claims but allowed the appeal under article 8 of the European Convention on Human Rights.