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

In an Article 8 proportionality assessment, the conclusion is primarily evaluative and will not ordinarily be disturbed unless legally flawed. However, inadequate reasons may themselves constitute an error of law. Where removal requires a parent to leave the United Kingdom temporarily to obtain entry clearance, the decision-maker must give a careful and balanced assessment of the proposed separation, including the child’s emotional and medical needs and the practical role of the remaining parent. Article 8 may be engaged without being breached; an insurmountable obstacle to family life abroad is not the test for determining whether removal is proportionate.

The appellant, a Jamaican national, challenged the Asylum and Immigration Tribunal’s reconsideration decision dismissing her appeal against refusal of leave to remain as the unmarried partner of a British citizen. Her case concerned family life with her partner and young daughter, who required regular specialist eye treatment unavailable in Jamaica.

The original immigration judge had allowed the appeal under Article 8, but an AIT panel found an error of law based on inadequate reasons concerning the proportionality of a limited period of separation while the appellant sought entry clearance. On reconsideration, Immigration Judge Baker dismissed the appeal. The central issue was whether either the original decision or the reconsideration decision involved an error of law.

1. Application refused. The Court of Appeal granted the necessary extension of time but dismissed the renewed application for permission to appeal. There was no realistic prospect of a successful appeal.
2. A proportionality decision is essentially one of fact and judgment, and appellate interference is ordinarily limited. That principle does not answer a failure to give adequate reasons for the conclusion reached.
3. The first immigration judge’s reasoning was inadequate. The determination did not explain why the child’s medical condition made it unreasonable for the appellant to leave temporarily to obtain entry clearance. It did not properly address the father’s potential role in ensuring that the child attended hospital or met her emotional needs. Nor was there adequate evidential support for the assertion that entry clearance might take years. A more careful and balanced assessment of proportionality was required. The deficiency amounted to an error of law.
4. Immigration Judge Baker did not err in law. She considered the daughter’s emotional circumstances and accepted that Article 8 was engaged. Her conclusion was that removal would not breach Article 8. The submission that she had used an insurmountable-obstacle test to decide whether Article 8 was engaged was a misreading of her determination.
5. The AIT was therefore entitled to proceed on the basis that the original decision contained a material error of law, and the reconsideration decision disclosed no arguable error.

• Court of Appeal (Civil Division): On appeal from the Asylum and Immigration Tribunal’s reconsideration decision dated 25 April 2007, the renewed application for permission to appeal was refused.
• Asylum and Immigration Tribunal: The reconsideration decision dismissed the appellant’s appeal after finding that the original immigration judge had materially erred in law by failing to give adequate reasons on proportionality.
• Original immigration decision: Immigration Judge Adio had found removal disproportionate under Article 8, but that decision was subsequently set aside for inadequate reasoning.