HC (Jamaica) v Secretary of State for the Home Department

Article 8 proportionality in an immigration case is determined on the individual facts. The court must balance the interference with family life against the legitimate aim of immigration control. No additional test of exceptionality applies, although successful claims outside the Immigration Rules will be rare. Relevant considerations may include responsibility for the breach of immigration control, consistency between applicants, family circumstances, and whether relocation is reasonable. A British child’s right to enter and leave the United Kingdom does not confer the same right on a parent.

The appellant, a Jamaican national who had overstayed since being brought to the United Kingdom as a child, appealed against the dismissal of his Article 8 claim. His wife had indefinite leave to remain and their son was a British citizen. The Immigration Appeal Tribunal, on reconsideration, dismissed his appeal against removal, while allowing his mother’s related appeal.

The appellant challenged the proportionality assessment on four principal grounds: consideration of a possible application from Jamaica, characterisation of the case as queue-jumping, inconsistency between the outcomes for mother and son, and the reasonableness of relocation. He also relied on his son’s British citizenship.

1. Appeal dismissed. The immigration judge had correctly approached the issue under Article 8, paragraph 2. Removal pursued the legitimate objective of immigration control, and the question was whether removal was proportionate on the individual facts. No additional legal test of exceptionality was permissible.
2. The judge did not impermissibly assess the prospects of an application for entry clearance from Jamaica. Her reference to the appellant’s ability to regularise his position concerned his responsibility for the breach of immigration control, particularly his decision to remain and not take available steps after reaching adulthood. It was not a factor treated as determining Article 8 proportionality by reference to the likely success of a future application.
3. It was lawful to consider the effect of allowing an overstayer to remain on the consistency and fairness of immigration control. Describing that consequence as queue-jumping was permissible and was not confined to persons who originally intended to bypass the entry-clearance process.
4. Article 8 required separate assessment of the mother’s and son’s cases. Their family circumstances differed materially. The mother was found to be the central figure in a much wider extended family and a principal carer for an ill son. A conclusion that removal would be disproportionate in her case did not make the separate dismissal of the appellant’s appeal unlawful.
5. Whether relocation is reasonable is ordinarily a question of fact. The judge was entitled to find that this appellant, although well established in the United Kingdom and lacking substantial Jamaican links, was young, intelligent and capable of supporting himself and his family in Jamaica. The references to insurmountable obstacles to relocation and practical impossibility did not disclose an error of law.
6. The British citizenship of the appellant’s son gave the child a statutory right to enter and leave the United Kingdom under section 1 of the Immigration Act 1971. It did not give the father an equivalent right, nor did it prevent the family from relocating to Jamaica if that was the lawful place for the father to live. The order was: application refused.

• Court of Appeal (Civil Division): appeal from the Immigration Appeal Tribunal dismissed. The Tribunal’s decision of 22 June 2007, made on reconsideration, had dismissed the appellant’s appeal against removal.
• Immigration Appeal Tribunal: the related appeal by the appellant’s mother was allowed, but the appellant’s appeal was dismissed. The earlier immigration-judge decision had been sent back for reconsideration because it had treated the prospects of entry clearance from Jamaica as relevant to proportionality.