FK (Democratic Republic of Congo) v Secretary of State for the Home Department

In an Article 8 immigration case, administrative delay is a relevant factor in assessing proportionality. Where an applicant has a potential right to enter under immigration policy, requiring departure to obtain entry clearance is normally proportionate, but that public interest is weakened by substantial and unreasonable delay, particularly where family life changes during the delay. References to an extreme case or public disgrace describe the necessary degree of delay; they are not legal tests. On reconsideration, the appellate tribunal must identify a material error of law before reconsidering the merits. It must not substitute its own view of proportionality. A different conclusion is lawful unless the original approach was legally flawed or the result was perverse in the Wednesbury sense.

The appellant, a citizen of the Democratic Republic of Congo, entered the United Kingdom, married a British citizen and applied for leave to remain as his spouse. The application was delayed for almost three years. During that period she had a child and became pregnant again. An immigration judge allowed her Article 8 appeal, finding removal to obtain entry clearance disproportionate.

On reconsideration, the Asylum and Immigration Tribunal found a material error of law, relying on the Court of Appeal authorities concerning administrative delay, and dismissed the appeal. The central issue was whether the immigration judge had adopted an erroneous approach to proportionality or had reached a perverse conclusion.

The Court of Appeal unanimously allowed the appeal.

1. Reconsideration. Under Nationality, Immigration and Asylum Act 2002, section 103A(2), and rule 31 of the Asylum and Immigration Tribunal Procedural Rules 2005, reconsideration could begin only after the AIT correctly identified a material error of law. If there was no such error, the original determination had to stand.
2. Proportionality. The assessment under Article 8 was primarily a matter of judgment involving the weighing of competing considerations. Different tribunals could lawfully reach different conclusions. Reconsideration required more than disagreement with the original assessment. It required an error in legal approach or a conclusion so irrational that no reasonable decision-maker could have reached it.
3. Administrative delay. The summary in HB (Ethiopia) v SSHD [2006] EWCA Civ 1713 was not a statutory code and did not replace the underlying authorities. For an applicant with a potential immigration-law right, such as a right arising under marriage policy, departure to obtain entry clearance was normally proportionate. The force of that requirement was reduced where the Secretary of State had operated the system inefficiently, especially where unreasonable delay had altered the applicant’s private or family life. Public disgrace was not a legal test. The delay had to be substantial enough to affect the outcome.
4. Application. The immigration judge’s determination had to be read as a whole. His reliance on R (Ajoh) v SSHD [2006] EWHC 1489 (Admin), although he wrongly described it as binding, showed that he had applied the relevant principles. He had considered the delay, the appellant’s lack of responsibility for failing to chase the application, and the birth and conception of the children. His conclusion was open to him and was not perverse. The AIT was therefore not entitled to find a material error of law. Reconsideration should have ended at that stage. Order: appeal allowed.

• Court of Appeal (Civil Division) [2007] EWCA Civ 1545: allowed the appeal and held that the AIT had not identified a material error of law.
• Asylum and Immigration Tribunal [AIT No: IA/09785/2006]: on reconsideration, found a material error of law in the immigration judge’s determination and dismissed the appeal.
• Immigration Judge: allowed the appellant’s Article 8 appeal in a determination promulgated on 6 October 2006.