LM (Democratic Republic of Congo) v Secretary of State for the Home Department

In determining whether the removal of a person whose family is lawfully present in the United Kingdom would violate article 8, the governing test is proportionality, not exceptionality. The absence of an insurmountable obstacle to maintaining family life abroad does not preclude a violation. The decision-maker must assess whether family life can realistically and reasonably be enjoyed elsewhere, taking account of all relevant circumstances.

“Insurmountable obstacle” is neither a literal requirement nor a formulaic threshold. An immigration judge may properly find removal disproportionate where expecting family members, particularly minor children, to relocate would be unrealistic or unreasonable.

The appellant entered the United Kingdom as a minor with her two younger siblings after their parents had disappeared and probably been killed in the Democratic Republic of Congo. The children were fostered together and had no other family or remaining links with that country.

An immigration judge dismissed the asylum claim but allowed the appeal under articles 3 and 8 of the European Convention on Human Rights. On reconsideration, a senior immigration judge held that human rights were not justiciable in an appeal concerning variation of leave and dismissed the appeal without a further merits hearing. It subsequently became common ground that this was an error of law.

The Court of Appeal had to decide whether to remit the human rights claim to the Asylum and Immigration Tribunal or restore the immigration judge’s article 8 determination.

1. Appeal allowed unanimously. The decision of the immigration judge allowing the appeal under article 8 of the European Convention on Human Rights was restored. The case was not remitted to the Asylum and Immigration Tribunal.

2. The senior immigration judge had erred in holding that human rights issues were not justiciable in an appeal concerning variation of leave. That understanding, derived from JM v Liberia, had been displaced by the Court of Appeal in [2006] EWCA Civ 1402.

3. The immigration judge had applied the former requirement that the circumstances be truly exceptional. The correct article 8(2) inquiry was proportionality, as established in AG (Eritrea) [2007] EWCA Civ 801. Since the immigration judge found that the higher exceptionality threshold had been crossed, that error could not have affected the outcome.

4. The finding that the appellant had no known contacts in the Democratic Republic of Congo was not erroneous. The error in the article 3 analysis concerned the conclusion that this circumstance, together with other characteristics, created a relevant risk. The article 8 assessment was a qualitatively different and freestanding exercise. There was no evidence that the erroneous article 3 reasoning had introduced a rogue factor into the proportionality balance.

5. R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 did not impose a formulaic requirement that an insurmountable obstacle to family reunification abroad must exist before article 8 is engaged or violated. The expression originated in an illustrative checklist and was not a term of art. Even without such an obstacle, removal may infringe article 8.

6. The decision-maker must consider whether an obstacle can realistically or reasonably be surmounted. This approach accords with Huang v Secretary of State for the Home Department [2007] UKHL 11. The immigration judge was entitled to find it unrealistic and unreasonable to expect the appellant’s minor siblings to leave their foster home for a country which had become strange to them. Removal would split the family and was disproportionate.

1. Court of Appeal (Civil Division): Allowed the appeal unanimously and restored the immigration judge’s decision allowing the article 8 appeal. The matter was not remitted to the Asylum and Immigration Tribunal.

2. Asylum and Immigration Tribunal, reconsideration: The senior immigration judge held that the original immigration judge had erred in law and that the human rights claim was not justiciable. He substituted a decision dismissing the human rights appeal without a second-stage hearing.

3. Asylum and Immigration Tribunal, initial appeal: The immigration judge dismissed the asylum claim but allowed the appeal under articles 3 and 8 of the European Convention on Human Rights.