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

Article 8 does not impose a separate test of exceptionality. A real interference with private or family life engages article 8(1), subject only to a minimum threshold which is not specially high. The tribunal must then decide justification and proportionality under article 8(2) by a structured, case-specific assessment.

Lawful immigration control will ordinarily justify removal, so successful claims will be rare in practice. That practical expectation is a consequence of proportionality, not a threshold condition. A decision-maker must make its own case-specific findings. An unsupported fact capable of influencing the proportionality balance cannot be severed unless the same result would inevitably have been reached without it.

The appellant, an Ethiopian young man of Eritrean maternal origin, arrived in the United Kingdom aged 14 and claimed asylum. The Secretary of State proposed to remove him to Eritrea, where he had never lived.

An adjudicator allowed his appeal under the Refugee Convention and articles 3 and 8. The Asylum and Immigration Tribunal, under reference HX/57933/2003, found errors of law and, after reconsideration, dismissed the protection claims. The appellant appealed.

The Court of Appeal considered whether the adjudicator’s findings were lawfully reasoned, whether an unsupported finding of prospective ill-treatment vitiated the article 8 balance, and the correct post-Huang v Home Secretary approach to article 8.

1. Appeal allowed and remitted. The adjudicator’s favourable asylum and article 3 findings could not stand. He had impermissibly adopted fact findings from Gemany [2002] UKIAT 07099 without making the case-specific findings required for this appellant.

2. The adjudicator had correctly rejected a separate test of exceptionality and had adopted a structured article 8 approach. His finding that the appellant did not speak the Eritrean language was open to him on the evidence. However, the further finding that removal would expose the appellant to ill-treatment and torture lacked an evidential basis. It was potentially influential in a finely balanced proportionality assessment and could not be severed, because the court could not be satisfied that the same conclusion would have followed without it.

3. Following R (Razgar) v Home Secretary [2004] UKHL 27 and the House of Lords’ decision in Secretary of State for the Home Department v Huang [2007] UKHL 11, there is no formal legal test of exceptionality. A real interference with private or family life engages article 8(1); the threshold is not specially high. The decisive inquiry is whether the interference is justified and proportionate under article 8(2).

4. Proportionality requires a visible, structured evaluation of the individual interests and the public interest in immigration control. It is insufficient simply to describe removal as proportionate or disproportionate. Although lawful immigration control will ordinarily make removal proportionate, that is a likely practical result and not an additional hurdle.

5. The AIT’s substituted article 8 determination had itself applied the erroneous exceptionality approach. The article 8 claim was therefore remitted to the AIT for redetermination according to law. The court left the asserted inversion of the burden of proof on return-risk issues for the AIT, as it had been insufficiently argued and depended on factual findings. It also noted the absence of any intelligible explanation for the proposed removal to Eritrea.

• Court of Appeal (Civil Division): Allowed the appeal in [2007] EWCA Civ 801 and remitted the article 8 claim to the Asylum and Immigration Tribunal.

• Asylum and Immigration Tribunal: On reconsideration, in a determination promulgated in June 2006, held that the appellant was not entitled to protection under either Convention.

• Asylum and Immigration Tribunal: Held that the adjudicator’s original decision contained errors of law and directed reconsideration, while preserving favourable credibility findings.

• Adjudicator: In January 2004 allowed the appellant’s appeal under the Refugee Convention and articles 3 and 8.