AG (Eritrea) v Secretary of State for the Home Department

In an Article 8 immigration case, proportionality is determined by weighing all relevant considerations against the seriousness of the interference with protected private or family life. The decision-maker need not apply a separate legal hurdle of exceptionality. That concept describes the expected rarity of successful cases arising outside the ordinary operation of immigration control. Lawful immigration control will ordinarily make removal proportionate, but the tribunal must still conduct the substantive proportionality assessment. A failure to use the language of exceptionality does not necessarily determine whether an Article 8 decision contains an error of law.

AG, an Eritrean national, entered the United Kingdom in 1999. An adjudicator allowed his appeal in April 2004, accepting his account and finding that removal would breach Articles 3 and 8 of the European Convention of Human Rights.

The Secretary of State appealed. The Asylum and Immigration Tribunal ordered reconsideration on 20 January 2006 and dismissed the appeal on 6 June 2006, applying the approach in Huang and referring to Krasniqi [2006] EWCA Civ 391. Permission to appeal was granted on grounds concerning the Article 3 reasoning and the adjudicator’s failure to use the language of exceptionality.

Following the House of Lords decision in Huang, the applicant advanced additional grounds and proposed consent remittal under Section 103A of the 2002 Act. The central issue was whether the matter should be remitted immediately or heard by a full appellate court with guidance on the effect of the clarified Article 8 approach.

Disposition

The application was granted. Permission was extended to the applicant’s additional grounds, and the original and supplementary grounds were directed to be heard by a full court including at least two Lord Justices familiar with asylum cases. The court did not determine the Article 3 or Article 8 merits.

Article 8 proportionality

1. The House of Lords’ decision in Huang established that the appellate immigration authority must determine the substantive proportionality question by taking account of all considerations favouring refusal and assessing whether the resulting prejudice to protected family life is sufficiently serious to breach Article 8. It is not necessary to ask separately whether the case satisfies an exceptionality test.
2. The Court of Appeal’s formulation in Huang was understood as expressing the natural consequence of ordinary proportionality principles in immigration cases, rather than creating a distinct legal test. The court regarded lawful immigration control as ordinarily sufficient to make removal proportionate. Accordingly, only a small minority of cases, involving unusual or compelling humanitarian features, are likely to succeed. This did not mean that every tribunal decision using the language of exceptionality required automatic remittal.
3. The tribunal had reconsidered the appeal by reference to exceptionality as understood in the earlier Court of Appeal decision. It was therefore realistically arguable that the Article 8 decision required reconsideration after the House of Lords’ clarification. The court declined to approve the proposed consent order without argument because the issue could affect a substantial number of cases and authoritative guidance was desirable.

The appeal was to proceed on the Article 3 ground and on the questions arising from the two Huang decisions. The proposed remittal under Section 103A of the 2002 Act was not finally ordered at this stage.

• Court of Appeal (Civil Division): Granted permission on the additional grounds and directed that all grounds be heard by a full court.
• Asylum and Immigration Tribunal: Ordered reconsideration on 20 January 2006 and, on 6 June 2006, dismissed the appeal.
• Adjudicator: Allowed the appeal in April 2004 on Articles 3 and 8 grounds.