AH (Philippines) v Secretary of State for the Home Department

In an Article 8 immigration appeal, the appellate authority must decide whether refusal of leave, where family life cannot reasonably be enjoyed elsewhere, causes sufficiently serious prejudice to breach the right protected by Article 8, taking full account of the public interest. No separate legal test of truly exceptional circumstances applies. Failure to apply the Mahmood principle on insurmountable obstacles, or reliance on an earlier immigration refusal as an admitted error when it was reasonable when made, may constitute an error of law. Material errors require remittal for a fresh proportionality assessment.

AH, a Philippine citizen, entered the United Kingdom after her husband's death and sought leave to remain with her British-citizen son. An adjudicator allowed her appeal under Article 8, relying on family and private life, her son's integration, and the circumstances of an earlier refusal of entry clearance. The Asylum and Immigration Tribunal found errors of law, rejected the alleged error by the respondent, and dismissed the appeal after making its own assessment. AH appealed to the Court of Appeal, arguing that the adjudicator had not erred and that the original Article 8 assessment should stand.

The central issue was whether the Tribunal had lawfully disturbed the adjudicator's decision and whether a fresh Article 8 assessment was required.

Lord Justice Pill delivered the leading judgment. Lord Justices Keene and Moore-Bick agreed. The appeal was allowed.

1. The Tribunal was entitled to find errors of law. The adjudicator had failed to apply the principle in Mahmood v The Secretary of State [2001] 1 WLR 840: removal or exclusion would not necessarily breach Article 8 where there were no insurmountable obstacles to family life continuing in the country of origin, even if hardship resulted.
2. The Secretary of State's 1989 refusal was not unreasonable or unlawful when made. Later events showed that the marriage was genuine, but did not retrospectively invalidate the refusal. The refusal could not properly be treated as a significant factor in the later Article 8 assessment. The adjudicator's finding that family separation was largely caused by an admitted error was unjustified and failed to engage with material evidence.
3. The fact that the parties had entered the United Kingdom lawfully under grants of permission could not, on these facts, properly form the basis of the later Article 8 decision. The proportionality assessment was therefore legally defective.
4. The Tribunal had applied the approach associated with Huang v The Secretary of State [2005] EWCA Civ 105, including a test of truly exceptional circumstances. That approach had been modified by the House of Lords in Huang [2007] UKHL 11. The appellate authority must determine the ultimate Article 8 question, and need not apply a separate exceptionality test.
5. A fresh fact-finding and proportionality assessment was required. The case was remitted to a differently constituted Asylum and Immigration Tribunal, which could permit further evidence. The respondent was ordered to pay the appellant's costs, except the costs of the day of judgment.

• Court of Appeal (Civil Division) — [2007] EWCA Civ 376, 29 March 2007: appeal allowed and remitted to a differently constituted Asylum and Immigration Tribunal.
• Asylum and Immigration Tribunal — decision dated 16 March 2006, AIT No: TH/04800/2004: found errors of law in the adjudicator's decision and dismissed what was effectively an appeal against the Secretary of State's refusal.
• Adjudicator — decision dated 3 September 2004: allowed the appeal under the Human Rights Convention, principally on Article 8 grounds.