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

An interference with private or family life must be real to engage article 8, but the threshold is not specially high. Once engaged, the question is whether the interference is justified. There is no additional legal test of exceptionality. The expectation that immigration control will usually justify removal describes the likely outcome of proportionality assessments.

Proportionality requires a structured, reasoned assessment of the relevant principles and circumstances. A fixed formula is unnecessary. Findings essential to the assessment require a proper evidential foundation. An unsupported finding influencing the balance can be severed only if the court is satisfied that the decision would have been the same without it.

The appellant was a young Ethiopian whose mother was Eritrean. He arrived in the United Kingdom alone, aged 14, after his mother was abducted and he escaped from imprisonment. The Secretary of State refused his asylum application four years later and proposed removal to Eritrea, where he had never lived.

An adjudicator allowed his appeal on asylum grounds and under articles 3 and 8 of the European Convention on Human Rights. The Asylum and Immigration Tribunal ordered reconsideration because of inadequate reasoning about risk and the absence of a test of exceptionality under article 8. On reconsideration, it rejected all grounds of protection.

The appellant appealed to the Court of Appeal. Meanwhile, the House of Lords clarified that article 8 imposed no test of exceptionality. The central questions were whether the adjudicator had nevertheless made a material error of law and how the tribunal should determine the article 8 claim on remittal. A further issue concerned the burden of proof when assessing risks on return to Eritrea.

1. The appeal was allowed and the article 8 claim remitted to the Asylum and Immigration Tribunal for determination according to law. The adjudicator had made a material error, but the tribunal’s substituted decision also rested on an erroneous legal approach ([13], [40]–[41]).

2. The bare adoption of findings from Gemany [2002] UKIAT 07099 could not supply the case-specific findings essential to a properly reasoned article 3 decision. The adopted passages identified neither prospective persecution nor the public services whose denial would engage article 3. The material also failed to support persecution on the ground of mixed ethnicity ([8]–[10]).

3. The adjudicator was entitled to accept the appellant’s uncontroverted evidence about the languages he spoke. However, the finding that removal would expose him to torture or ill-treatment lacked a proper evidential foundation. That finding could be severed only if the court was satisfied that the decision would have been the same without it. Its potentially influential place in the proportionality balance prevented that conclusion ([12]–[13]).

4. Following Huang [2007] UKHL 11, article 8 imposed no separate test of exceptionality. The expectation that successful claims would form a small minority was a consequence of proportionality assessments. Under the questions identified in R (Razgar) v Home Secretary [2004] UKHL 27, engagement required a real interference, but no specially high threshold. Justification then fell to be assessed under article 8(2). The appellant’s established private life plainly engaged article 8(1) ([19], [25]–[28], [31], [40]).

5. Proportionality required visible consideration of relevant principles in a structured decision. Those principles included the importance of the objective, rational connection, necessity and a fair balance between individual and community interests. No fixed formula was required. Merely labelling removal proportionate or disproportionate might constitute an error of law. Nevertheless, permission to appeal could be refused despite use of the wrong test where no view of the facts could make removal disproportionate. The exceptionality reasoning in PO (Nigeria) [2007] EWCA Civ 438 should not be relied on ([33]–[37]).

6. The alleged inversion of the burden of proof was left for reconsideration by the tribunal. A probability that an event would not occur did not itself exclude a real risk, although a sufficiently high probability might render the risk unreal. The Secretary of State’s continuing inability to explain the selection of Eritrea raised a strong suspicion that no intelligible reason existed. A fresh administrative decision might overtake the remittal ([42]–[44]).

• Court of Appeal (Civil Division): In [2007] EWCA Civ 801 , the court upheld the existence of a material error in the adjudicator’s proportionality assessment, held that the tribunal’s substituted decision could not stand, and remitted the article 8 claim.
• Asylum and Immigration Tribunal: On second-stage reconsideration, its determination promulgated in June 2006 rejected protection under both Conventions. It refused permission to appeal, which the Court of Appeal granted in October 2006.
• Asylum and Immigration Tribunal: At the first reconsideration stage, it identified inadequate reasoning about risk and failure to apply exceptionality under article 8. It ordered reconsideration while preserving favourable credibility findings.
• Adjudicator: In January 2004, Mr J E Camp allowed the appeal on asylum grounds and under articles 3 and 8 of the European Convention on Human Rights.