N v Secretary of State for the Home Department

In an immigration appeal under Article 8, an adjudicator considering a case outside the Immigration Rules must respect the balance between public interest and private rights struck by the Rules. Relief is available only in a truly exceptional case. A conclusion reached under an earlier proportionality or reasonable-responses approach cannot be treated as an implicit finding that this test was met.

The British citizenship of a child affected by removal is a relevant factor. Its weight depends on the facts and is ordinarily for the fact-finding tribunal. Where the exceptional-circumstances assessment may admit of different conclusions, the appellate court should remit the case rather than determine that assessment itself.

The appellant, a Vietnamese mother with no continuing right to remain, had a British-citizen son who was too young to live independently in the United Kingdom. An adjudicator allowed her Article 8 appeal against removal to Vietnam, relying on the difficulties for mother and child, including consequences said to follow from the child’s citizenship.

The Asylum and Immigration Tribunal found a material error of law and substituted a finding that removal would not breach Article 8. The appellant appealed. The central issues were whether the adjudicator had nevertheless applied the truly exceptional circumstances test stated in [2006] QB 1, whether the Court of Appeal could decide exceptionality itself, and the relevance of the child’s British citizenship.

1. Appeal allowed and remitted to the Asylum and Immigration Tribunal. The tribunal’s reasoning could not stand because it lacked clarity, including on the relevance of the child’s British citizenship.

2. Per Pill LJ, with whom Scott Baker and Neuberger LJJ agreed, the governing approach was that stated in [2006] QB 1. An adjudicator considering Article 8 outside the Immigration Rules must respect the balance struck by the Rules. The adjudicator may favour the appellant only where the case is truly exceptional, while making that assessment independently rather than by deferring to the Secretary of State.

3. The adjudicator had instead asked whether removal fell outside the range of reasonable responses and whether the difficulties on return were insurmountable. Her brief conclusion that removal was disproportionate could not be extrapolated into a finding of true exceptionality. The correct test had to be confronted expressly.

4. The child’s British citizenship was a relevant factor in the Article 8 assessment. The Court declined to prescribe either a separate test or the weight to be given to citizenship, because the assessment should be made by the fact-finding tribunal on the particular facts.

5. The Court also declined to decide that the facts were truly exceptional. Unlike a rare case in which only one conclusion is open, this case admitted a range of factual findings and evaluative conclusions. It was therefore remitted for an immigration judge or judges to determine the appeal by applying the approved test.

• Court of Appeal (Civil Division): Allowed the appellant’s appeal and remitted the Article 8 appeal to the Asylum and Immigration Tribunal for determination under the truly exceptional circumstances test.

• Asylum and Immigration Tribunal: On 18 October 2005 found a material error of law in the adjudicator’s determination and substituted a finding that removal would not breach Article 8.

• Adjudicator: On 15 February 2005 allowed the appeal against the Secretary of State’s removal decision, finding removal disproportionate under Article 8.