JN (Uganda) v Secretary of State for the Home Department

In an Article 8 case, proportionality is the legal question; an applicant need not separately show that the circumstances are truly exceptional. The rarity of cases succeeding outside the Immigration Rules is an expectation about outcomes, not a legal threshold. The approach applies to private-life claims as well as family-life claims. An error in applying the exceptional-circumstances test may be immaterial where removal would be disproportionate on no view of the facts. Here, the error was material because the circumstances required proper reconsideration. The appeal was allowed and remitted to the AIT.

JN, a Ugandan national, entered the United Kingdom lawfully in 1993 and claimed asylum. Her initial claim failed, although an adjudicator recommended consideration of exceptional leave. The Secretary of State rejected that recommendation, and the decision was not challenged.

A later application, made in 1998, was delayed until 2005. An Immigration Judge dismissed the asylum claim but allowed the appeal under Article 8, relying on JN’s private life in the United Kingdom. On reconsideration, the Asylum and Immigration Tribunal identified errors of law, reconsidered the appeal, and dismissed it using the truly exceptional test. The central issues were whether the Immigration Judge had erred materially and whether the AIT had applied the correct approach to Article 8 proportionality.

Appeal allowed and remitted. Permission to appeal and an extension of time were granted.

1. The AIT was correct to find a material error concerning the adjudicator’s recommendation. The Secretary of State rejected the recommendation, with reasons, within a few weeks, and that rejection was not challenged. The recommendation therefore could not rationally provide a continuing foundation for an expectation. The subsequent activities of JN and the Secretary of State’s later delay could not rationally be attributed to the recommendation or its rejection. This error independently justified reconsideration.
2. The AIT’s second criticism was less convincing. The Immigration Judge had applied the truly exceptional test then commonly understood to be required. Her reasoning could have been fuller and more rigorous, but it was not necessarily legally erroneous apart from the misunderstanding concerning the recommendation.
3. Following Huang [2007] UKHL 11, and adopting the approach in AG (Eritrea) [2007] EWCA Civ 801, the AIT was wrong to treat exceptionality as a legal test. Once proportionality is reached, the question is whether refusal of leave, taking full account of the considerations favouring refusal, prejudices family or private life sufficiently seriously to amount to a breach of Article 8. The reasoning in Huang applies equally to private-life cases. The observation in Razgar [2004] 2 AC 368 concerned the expected rarity of successful cases outside the Rules; it did not impose a separate legal threshold. The approach in AG (Eritrea) followed MT (Zimbabwe) [2007] EWCA Civ 455.
4. An incorrect legal test does not invariably require remittal. If, on no view of the facts, removal could be disproportionate, the error may be immaterial. This was not such a case. The circumstances were sufficient to call for full reconsideration, without the Court expressing a view on the ultimate merits. The Secretary of State’s lamentable delay was an aspect requiring reconsideration, with useful guidance available from HB (Ethiopia) v Secretary of State for the Home Department [2006] EWCA Civ 1713.

The matter was remitted to a differently constituted AIT for full reconsideration under the correct proportionality approach.

1. Court of Appeal (Civil Division) — Granted permission to appeal and an extension of time. Allowed the appeal and remitted the matter to a differently constituted AIT for full reconsideration.
2. Asylum and Immigration Tribunal — On reconsideration of appeal AA/01379/2005, identified material errors in the Immigration Judge’s determination, reconsidered the appeal, dismissed it under the truly exceptional approach, and refused permission to appeal.
3. Immigration Judge — Dismissed the asylum appeal but allowed the human-rights appeal under Article 8 on the basis of private life.
4. Adjudicator — Dismissed the initial asylum appeal but recommended consideration of exceptional leave. The recommendation was rejected by the Secretary of State.