SB (Bangladesh) v Secretary of State for the Home Department

When deciding whether removal would be disproportionate under Article 8, a tribunal should not assess the prospects of success of a future application for entry clearance made after removal. That application is for the entry clearance officer to determine at the appropriate time, on the facts and rules then applicable.

The tribunal may, however, consider whether the case falls within the spirit of the Immigration Rules, although the applicant does not satisfy their letter. An error concerning future entry clearance prospects requires remittal unless the properly directed tribunal could only reach the same result.

A Bangladeshi citizen sought indefinite leave to remain as a dependent relative. Her husband and children had settled in the United Kingdom, and she had family life here with two of her children, including a minor son who had experienced educational and behavioural difficulties.

The Asylum and Immigration Tribunal dismissed her appeal under Paragraph 317 of the Immigration Rules and under Article 8. In its proportionality assessment, it reasoned that she could return to Bangladesh, obtain entry clearance under Paragraph 246 and later seek indefinite leave under Paragraph 248D.

On a renewed application for permission to appeal, the central issue was whether the Tribunal had unlawfully relied on its prediction about those future applications.

1. Permission granted on the Article 8 issue; appeal allowed and matter remitted. In a judgment to which all three members of the court contributed, the court held that the Tribunal had erred by taking account of its own assessment that the appellant would probably obtain entry clearance after returning to Bangladesh.

2. Whether an applicant satisfies Paragraph 246 of the Immigration Rules is for an entry clearance officer to determine if and when an application is made. A tribunal deciding a present appeal should not determine that different question prospectively. Such an assessment may prove wrong because of a different view of the facts or law, or because the facts or Rules change. It would also produce the paradox that a stronger prospective application for entry clearance could make removal more likely.

3. The decisions in Ekinci [2003] EWCA Civ 765, Chikwamba [2005] EWCA Civ 1779 and Mahmood [2001] 1 WLR 840 supported excluding the perceived strength or weakness of a putative future application. Hashim was disapproved on this point in Mahmood. The relevant observation in Lekstaka [2005] EWHC 745 (Admin) was not essential to that decision.

4. A tribunal may nevertheless consider whether a case falls within the spirit of the Immigration Rules although it falls outside their letter. The court approved that aspect of Lekstaka. The governing proportionality question, following Huang [2005] EWCA Civ 105, was whether the particular case was so exceptional that proportionality required an outcome favourable to the applicant despite her inability to succeed under the Rules.

5. The Tribunal had materially relied on the predicted success of future applications. Its detailed analysis in paragraphs 66 and 67 formed part of the explanation for its conclusion, particularly because its final decision referred to all the reasons previously given.

6. The challenge to the findings under Paragraph 317 had no real prospect of success. Although the Tribunal might have reached the same Article 8 conclusion without the error, that result was not inevitable. A properly directed tribunal was therefore required to reconsider proportionality.

1. Court of Appeal (Civil Division): Granted permission on the identified Article 8 issue, allowed the appeal on that issue and remitted the matter to the Asylum and Immigration Tribunal for reconsideration. The challenge concerning Paragraph 317 of the Immigration Rules was refused.
2. Asylum and Immigration Tribunal: By a decision promulgated on 6 February 2006, dismissed the appeal against the refusal of indefinite leave to remain under the Immigration Rules and Article 8.
3. Secretary of State: On 3 January 2003, refused the application for indefinite leave to remain as a dependent relative.