KG (India) v Secretary of State for the Home Department

In an Article 8 proportionality assessment, immigration control is a central consideration. Where a tribunal has directed itself correctly and has shown that it considered the factors relied on by an appellant, it need not explain point by point why each factor fails to outweigh the public interest in maintaining effective immigration control. A formal test of exceptionality is unnecessary, although lawful removal will only rarely be disproportionate where it disrupts private or family life. The adequacy of reasons depends on whether the tribunal has addressed the substance of the proportionality question, not whether it has answered every submission separately.

The appellant, an Indian national, sought permission to appeal against removal on the ground that removal would breach his rights under Article 8 of the Convention. An immigration judge accepted that removal interfered with his private life, but concluded that it was lawful and proportionate after considering his employment, voluntary work, good character and other circumstances.

The appellant argued that the reasoning was inadequate because the judge had not explained individually why those matters did not outweigh immigration control, and had placed undue weight on SO (Article 8—impact on third parties) Nigeria UKAIT 00135. The central issue was whether the determination gave adequate reasons for its proportionality conclusion.

1. Application refused. The immigration judge correctly identified the Article 8 issues, accepted that private life was engaged, recognised that removal was in accordance with the law and pursued a legitimate immigration-control objective, and addressed proportionality.
2. Immigration control is a central consideration in the Article 8(2) proportionality assessment. The judge had expressly taken into account the appellant’s work, voluntary work, good behaviour and other matters relied upon. It was therefore unnecessary to explain, point by point, why each favourable factor did not outweigh the public interest in maintaining the immigration system. The reasoning was sufficient.
3. The reference to SO (Article 8—impact on third parties) Nigeria UKAIT 00135 did not show that the decision was treated as conclusive. The determination stated that the appellant’s work had been taken into account, while recognising the factual difference concerning the transferability of his skills.
4. The approach was consistent with KR (Iraq) [2007] EWCA Civ 514. After Huang, tribunals should address an established interference under Article 8(1) through justification under Article 8(2). There is no formal exceptionality test, but otherwise lawful removal disrupting private or family life will rarely be disproportionate.
5. The appellant’s case was materially unlike the cases concerning minors, including CM (Kenya) v SSHD [2007] EWCA Civ 312 and AG (Eritrea) [2007] EWCA Civ 801. Those authorities did not require more extensive reasoning on these facts. The application was refused.

• Court of Appeal (Civil Division): a renewed application for permission to appeal from the Asylum and Immigration Tribunal. Permission had previously been refused on paper by Sir Henry Brooke, sitting as a judge of the court. Buxton LJ refused the renewed application.
• Asylum and Immigration Tribunal: on full reconsideration, Designated Immigration Judge Aitken found that removal interfered with private life but was in accordance with the law and proportionate. The reconsideration followed an earlier immigration judge’s decision and an order for reconsideration.