AB (Jamaica) v Secretary of State for the Home Department

When removal would affect the family life of an overstayer and a settled spouse, proportionality under article 8 must be assessed objectively on all available evidence. The state bears any burden of justifying the interference. Wholly exceptional circumstances are not required.

A tribunal must give detailed and anxious consideration before finding it reasonable for a lifelong British citizen to emigrate to preserve a marriage. A departmental policy cannot restrict Convention rights, but may enhance them. A relevant policy must therefore inform the proportionality assessment, including the weight attached to a qualifying marriage and the immigration breach.

The appellant, a Jamaican citizen, overstayed after entering the United Kingdom as a visitor. She later married a British citizen who had lived in the United Kingdom throughout his life. Her two daughters formed part of their family. The Home Office delayed for almost three years before refusing her application to remain and directing her removal.

An immigration judge dismissed her appeal. The Asylum and Immigration Tribunal subsequently held that the determination contained no error of law. Permission to appeal was granted concerning the interpretation of Home Office policy DP 3/96.

The Court of Appeal considered whether the tribunal had properly assessed proportionality under article 8 of the European Convention on Human Rights, the circumstances of the settled spouse, and the relevance of DP 3/96.

1. Appeal allowed. The immigration judge applied the erroneous requirement that the appellant demonstrate wholly exceptional circumstances. The correct inquiry was whether removal was proportionate under article 8(2), assessed objectively on the available evidence. Any burden concerning proportionality rested on the Home Secretary: Huang [2007] UKHL 11 and AG (Eritrea) [2007] EWCA Civ 801 applied.

2. The assessment of the settled spouse's position was untenable. It was impermissible to find it reasonable and proportionate for a British citizen who had lived here throughout his life to emigrate without detailed and anxious consideration of his circumstances. The tribunal relied on supposition rather than evidence concerning his ability to obtain admission, work and accommodation in Jamaica. The specificity required when assessing undue hardship, illustrated by Januzi v Home Secretary [2006] UKHL 5, was also required in this context.

3. No executive policy may lawfully contravene a Convention right, although a policy may build upon or enhance such a right. An appellant cannot select favourable parts of a policy while rejecting its qualifications. Nevertheless, DP 3/96 was admissible and relevant to the tribunal's proportionality assessment. It indicated that a simple, acknowledged breach of immigration control was not ordinarily decisive once a qualifying marriage existed, and that such a marriage could become a powerful consideration against removal.

4. If removal were proportionate under article 8 but the Home Office had failed to apply a policy which might realistically have resulted in non-removal, remission to the Home Secretary would ordinarily be appropriate. That situation was unlikely under DP 3/96 because the policy was, on balance, more demanding than article 8.

5. A remittal was refused. The Home Office was not entitled to a second opportunity to remedy its evidential failure. On the evidence before the immigration judge, the immigration breach and subsequent delay could not fairly make it proportionate either to separate the family or to expect the husband to settle in Jamaica. Judgment was entered allowing the immigration appeal.

1. Court of Appeal (Civil Division): Allowed the appeal, held that the removal appeal should have succeeded on the existing evidence, and declined to remit the matter: [2007] EWCA Civ 1302.
2. Asylum and Immigration Tribunal: On reconsideration in January 2006, held that the immigration judge's determination contained no error of law, but granted permission to appeal.
3. Immigration judge: Dismissed the appeal in April 2005, finding removal proportionate and no breach of article 8.