KD (Sri Lanka) v SSHD

In an Article 8 removal case, the threshold for engagement under Article 8(1) is not especially high. Once engaged, the decisive question is proportionality under Article 8(2). Compliance with immigration law and the necessity of immigration control do not themselves determine the result. Delay in deciding an asylum claim is relevant where the claimant has no potential immigration-law right to remain, but it must have very substantial effects. An appellate court deciding whether to remit must make its own assessment of whether the claim has a realistic prospect of success. Family unity on return, the ability to reintegrate, and the applicant’s false account may make removal proportionate.

This was an appeal against a determination of Immigration Judge Saffer dated 13 October 2006, made on reconsideration of the appellant’s appeal against refusal of asylum and his claim under Article 8 of the European Convention on Human Rights.

The Immigration Judge rejected the asylum claim on credibility grounds and dismissed the Article 8 claim, applying an exceptionality approach and concluding that removal was proportionate. The appellant accepted that the Article 8 analysis contained errors of law but sought a further hearing. The Secretary of State argued that the claim was bound to fail. The central issue was whether the errors required remittal or whether the Court of Appeal should dismiss the appeal because there was no realistic prospect of success.

The Court of Appeal unanimously dismissed the appeal. Lord Justice Moses gave the judgment, with Lord Justice Wilson and Sir Mark Potter, President, agreeing.

1. The asylum appeal was properly rejected. An asylum seeker need not fully state the claim on first arrival, although truth is expected and discrepancies may legitimately be considered in assessing credibility. The Immigration Judge was entitled to attach weight to the significant omissions in the appellant’s initial account, together with the failure to leave Sri Lanka earlier. The determination disclosed no error of law.

2. The Immigration Judge made several errors in applying Article 8. The five-stage approach identified in R (Razgar) v Home Secretary [2004] 2 AC 368 requires separate consideration of interference, engagement, legality, necessity and proportionality. The threshold for engagement under Article 8(1) is not especially high. Once engaged, the focus moves to justification under Article 8(2), with proportionality determining whether there is a breach.

3. The requirements that the interference be in accordance with law and necessary in a democratic society are not dispositive. Otherwise, no claimant could establish that an interference was disproportionate. The Immigration Judge also wrongly treated the absence of a truly exceptional case as the governing test, contrary to Huang v SSHD [2007] UKHL 11 and AG (Eritrea) v SSHD [2007] EWCA Civ 407.

4. Delay in deciding an asylum claim is relevant under Article 8(2) where the claimant has no potential right to remain under immigration policy, but it must have very substantial effects before influencing the outcome. The three-year delay gave the family an opportunity to establish themselves in the United Kingdom, but had no further legal significance.

5. The Court of Appeal had to make its own assessment of whether the Article 8 claim had a realistic prospect of success, without assuming that a future Immigration Judge might take a more favourable view. The fact that only a very small minority of Article 8 claims succeeds emphasises the stringency of the proportionality assessment; it is not an independent exceptionality test.

6. The family could return together and reintegrate in Sri Lanka. The appellant’s lies in seeking to establish residence in the United Kingdom were also relevant to the proportionality assessment. There was no realistic prospect that removal would be found disproportionate, so no further hearing or remittal was required.

• Court of Appeal (Civil Division): dismissed the appeal against the Immigration Judge’s determination.
• Asylum and Immigration Tribunal: Immigration Judge Saffer, on reconsideration dated 13 October 2006, rejected the asylum claim and dismissed the Article 8 claim.