NF (Ghana) v Secretary of State for the Home Department

Article 8 does not require a claimant to show truly exceptional circumstances. The correct approach is proportionality. Even where a tribunal may have used the wrong test, permission to appeal may be refused if the lawful approach would inevitably produce the same outcome. That principle does not remove the need to address a young child’s position and interests where they may affect the application of an immigration policy and the Article 8 assessment. Failure to consider the youngest child separately can constitute an arguable ground, and the court may allow latitude for a late ground advanced in the child’s interests.

The appellant, a Ghanaian national, first entered the United Kingdom in 1986 and made an effective application for leave to remain in January 2006, relying on policy DP 69/99. The application was refused in March 2006. An Immigration Judge dismissed her appeal in June 2006, but Burton J ordered reconsideration because it was unclear whether the policy had been considered.

On reconsideration in February 2007, Senior Immigration Judge Warr and Immigration Judge Brown dismissed the appeal. Buxton LJ refused permission to appeal on the papers. The appellant then sought permission from the Court of Appeal, raising the application of the Article 8 test and the failure to consider separately the position of her eight-year-old child.

Article 8 approach. The court noted that the AIT’s decision had been made shortly before the House of Lords decision in Huang, which corrected the erroneous view that success under Article 8 required truly exceptional circumstances. Following Huang, there was no exceptionality test. The governing question was proportionality. The court also referred to [2007] EWCA Civ 801, where it had been made clear that permission to appeal could be refused even where the wrong test had been applied if the correct test would inevitably have produced the same outcome.

In the present case, the court considered that the AIT had not, in substance, applied the wrong test. Buxton LJ had also considered that the outcome would inevitably have been the same. The proposed ground alleging reliance on the wrong legal test was therefore not viable.

The youngest child. The AIT had said that questions under DP 69/99 were not irrelevant to the Article 8 assessment, but then reasoned through proportionality without further reference to the policy. It had not apparently addressed separately the position and interests of the youngest child. Whether the appellant’s conduct had forfeited reliance on the policy was not a foregone conclusion in relation to that child.

Because the point was advanced in the interests of a minor, the court allowed latitude for the late amendment of the grounds. Permission to appeal was granted on the single ground that the AIT had failed to consider the eight-year-old separately under Article 8 and DP 69/99. Permission was refused on all other grounds. Order: Application granted.

1. Court of Appeal (Civil Division): Permission to appeal was granted on the single ground concerning separate consideration of the eight-year-old child under Article 8 and DP 69/99.
2. Asylum & Immigration Tribunal: On reconsideration in February 2007, Senior Immigration Judge Warr and Immigration Judge Brown dismissed the appeal.
3. Asylum & Immigration Tribunal and High Court: Immigration Judge Beg dismissed the appeal in June 2006. Burton J ordered reconsideration because it was unclear whether DP 69/99 had been considered.