JH (Zimbabwe) v Secretary of State for the Home Department

In an Article 8 immigration case, an applicant must establish facts showing that circumstances are sufficiently exceptional to prevent a reasonable application for entry clearance from abroad. A finding based only on the absence of a guarantee that other family members will continue providing care is inadequate without findings that the person needing care would otherwise lack support. The Asylum and Immigration Tribunal must determine an alleged human-rights breach whether or not removal directions have been issued.

The appellant, a Zimbabwean national married to a United Kingdom citizen, challenged an Asylum and Immigration Tribunal determination in AIT No. IA/01658/2005 concerning her inability to meet the immigration rules and her claim that removal would breach Article 8. The Senior Immigration Judge identified an error of law in the original determination, but the AIT did not determine the Article 8 issue because it considered itself bound by JM (Liberia) [2006] UKIAT 0009. The Court of Appeal considered the application for permission to appeal and the need for the AIT to address the human-rights claim.

1. Permission on exceptional-circumstances ground refused. Lord Justice Moses agreed with Maurice Kay LJ that the Senior Immigration Judge correctly identified an error of law in the Immigration Judge’s determination. Although the appellant could not rely on paragraph 284 of HC 395, she sought to bring herself within the exceptional circumstances identified in Huang. That required sufficiently supported findings that the need for her to care for her husband, whose health had deteriorated, was so pressing that she could not reasonably be expected to return to Zimbabwe or another country and apply for entry clearance.
2. The Immigration Judge had relied only on the absence of any guarantee that the couple’s daughters would continue caring for the husband. That fact did not establish that he would otherwise be left without support. The Senior Immigration Judge was therefore entitled to treat the finding of exceptional circumstances as unsupported by sufficient facts. There was no reasonable prospect of successfully challenging that conclusion.
3. Permission on the Article 8 procedural ground granted. The AIT had treated itself as bound by JM (Liberia) [2006] UKIAT 0009 to conclude that it could not determine a human-rights allegation before removal directions were issued. The Court of Appeal had held in the same case, JM (Liberia) [2006] EWCA Civ 1402, at paragraph 28, that this was wrong. The AIT was required to determine whether there had been a breach whether or not removal directions had been made.
4. The application was granted for that reason, with the expectation that the matter would be remitted to the AIT to consider the Article 8 assertions. Permission was refused on the first ground and granted on the second.

• Asylum and Immigration Tribunal: Immigration Judge Parkes’ determination dated 1 August 2005 was found to contain errors of law. The Senior Immigration Judge’s determination dated 22 June 2006 identified those errors, but the AIT did not determine the Article 8 allegation.
• Court of Appeal (Civil Division): Permission was refused on the challenge to the finding of an error of law, but granted because the AIT had failed to determine the Article 8 issue in accordance with JM (Liberia) [2006] EWCA Civ 1402.