CW (Malaysia) v Secretary of State for the Home Department

In an Article 8 immigration case, administrative delay may be considered but does not, of itself, determine the claim, even where earlier action might have preserved a route to leave under a former policy or rule. Use of the former exceptional-circumstances threshold does not require reconsideration where, applying the current proportionality approach, the outcome would inevitably be the same. Substantial residence and private life must be weighed with the absence of family life in the United Kingdom, family ties in the return state and the person’s ability to work there. Where those matters disclose no real prospect that removal would be disproportionate, permission to appeal may be refused.

The applicant, a Malaysian citizen who had lived in the United Kingdom since 1988, challenged the refusal of his application to remain. An immigration judge dismissed his appeal on 19 July 2006. A senior immigration judge ordered reconsideration on 7 September 2006, but the Asylum and Immigration Tribunal concluded on 28 February 2007 that no material error of law had been shown.

On a renewed application for permission to appeal, the applicant relied on Article 8, lengthy administrative delay, the effect of a later rule change, and the use of the former exceptional-circumstances approach in light of Huang v SSHD [2007] UKHL 11 and JN (Uganda) v SSHD [2007] EWCA Civil 802. The central issue was whether there was an arguable error of law or any real prospect of a different outcome.

1. Application refused. The Court of Appeal agreed with the Asylum and Immigration Tribunal and the single Lord Justice who had refused permission on the papers. No real prospect existed that an appeal would succeed.
2. The delay in dealing with the application was unfortunate, and the applicant had not manipulated the immigration system. However, the approach identified in HB (Ethiopia) & Ors v SSHD [2006] EWCA Civ 1713 applied. The fact that delay may have caused an applicant to lose the benefit of an earlier policy or rule did not, by itself, affect the determination of the current Article 8 claim. The delay therefore had no significant bearing on the present application. The court also treated R v SSHD ex parte Ofori [1994] Imm AR 236 as supporting the conclusion that the absence of manipulation was not a factor operating against the applicant.
3. The immigration judge had used the then-common expression that Article 8 applied only in truly exceptional cases. The court recognised the significance of the later authorities. As explained in JN (Uganda), even where the wrong test had been applied, the same outcome could be inevitable if removal could not properly be regarded as disproportionate on the facts. The court held that this was such a case.
4. The substantial length of residence and the private life established in the United Kingdom did not outweigh the absence of family life there, the fact that the applicant’s family was in Malaysia, and his marketable skill as a chef. The immigration judge had found that his skills could be practised in Malaysia. The employment-focused assessment was not ideal in isolation, but was appropriate in the factual context.
5. The challenge to the validity of the October 1998 removal notice also disclosed no real prospect of success. Although the immigration judge’s findings were ambiguous, the Tribunal was entitled to conclude that the notice stopped the fourteen-year period on 5 October 1998. Order: application refused.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused on 6 December 2007.
• Asylum and Immigration Tribunal: on 28 February 2007, found that the immigration judge had made no error of law.
• Immigration judge: dismissed the applicant’s appeal on 19 July 2006. A senior immigration judge had ordered reconsideration on 7 September 2006.