NG (Pakistan) v Secretary of State for the Home Department

In an Article 8 removal appeal, a tribunal must identify the nature of the interference with private or family life and ask whether its consequences are sufficiently grave potentially to engage Article 8. It must not proceed directly to proportionality. Where Article 8 is engaged outside the Immigration Rules, there is no separate truly exceptional threshold. The decision must be assessed for proportionality. Lawful immigration-control decisions will be proportionate in all but a small minority of exceptional cases. The appeal was dismissed because the first tribunal had failed to address the gravity question and, alternatively, removal was proportionate on the evidence.

The appellant, a Pakistani national, entered the United Kingdom as the spouse of a British citizen and had two British children. She left her husband after domestic violence and applied for leave under paragraph 289(A) of the Immigration Rules after her earlier leave had expired. The Secretary of State refused the application but considered Article 8 of the Convention. Immigration Judge Phull allowed the appeal, finding exceptional circumstances. On reconsideration, Senior Immigration Judge Nichols found a material error of law because the first judge had not addressed the gravity of the consequences of removal, and held alternatively that removal was proportionate. The central issue was whether the first judge had properly addressed Article 8 engagement and proportionality.

Appeal dismissed. Laws LJ delivered the leading judgment, with Lloyd LJ and Hallet LJ agreeing.

1. Error of law. Immigration Judge Phull accepted that family life existed between the appellant and her children, but did not properly confront the second question identified in Razgar [2004] UKHL 27. Before undertaking proportionality, a tribunal must identify the nature of the interference with private or family life and ask whether its consequences are sufficiently grave potentially to engage Article 8. The Senior Immigration Judge was entitled to treat that omission as a material error of law. She had examined the facts through the proper legal framework rather than unlawfully reversing primary factual findings.
2. Engagement. The Court upheld the conclusion that Article 8 was not engaged, although the case was close to the borderline. The potential loss of contact between the children and their father was insufficient by itself. The children would travel with their mother, there was no prospect of the father actually caring for them, the appellant had family in Pakistan, and the children were young enough to settle there. The appellant’s fears of isolation and ostracism, without stronger evidence, did not establish sufficiently grave consequences. The relevant rights under scrutiny were the appellant’s own rights, as reflected in Kehinde (Appeal – section 65 1999 Act – Rights of Others) Nigeria [2001] UKIAT 00010.
3. Alternative proportionality assessment. If Article 8 had been engaged, removal would nevertheless have been proportionate. The House of Lords’ decision in Huang [2007] UKHL 1 had displaced the separate exceptionality test previously used by this court in Huang v SSHD [2005] EWCA Civ 105. That did not assist the appellant on the facts. The Senior Immigration Judge’s proportionality reasoning was consistent with Huang and with the observation in AG (Eritrea) [2007] EWCA Civ 801 that some cases permit a tribunal to conclude that removal could not be disproportionate on any view of the facts. The historic domestic violence, the availability of family support in Pakistan, the children’s young age and the possibility of maintaining contact with their father did not make removal disproportionate.
4. The formal order was that the appeal be dismissed.

• Court of Appeal (Civil Division) dismissed the appeal against the Asylum and Immigration Tribunal’s reconsideration decision: [2007] EWCA Civ 1543.
• Asylum and Immigration Tribunal: Immigration Judge Phull allowed the appeal on Article 8 grounds. On reconsideration, Senior Immigration Judge Nichols found a material error of law and dismissed the appeal.