AC (Pakistan) v Secretary of State for the Home Department

On an application for permission to appeal in an Article 8 removal case, a challenge to the engagement threshold does not by itself establish an arguable appeal; proportionality remains separately material. Quoting part of an authority does not show that an immigration judge adopted a superseded exceptionality test appearing in an uncited passage. Delay must be approached in accordance with HB (Ethiopia). Where the substantial issue is whether family members’ human rights require direct consideration under the applicable statutory appellate scheme, the court should hear the respondent before deciding permission. The application was therefore adjourned for submissions and relisting.

The appellant, a Pakistani citizen, entered the United Kingdom with leave as the spouse of a settled person. His marriage broke down, he overstayed, and he challenged removal under Article 8 on the basis of family life with his sister and her children. Immigration Judge Roberts dismissed his appeal, finding that Article 8 was not engaged and, alternatively, that removal was lawful, necessary for immigration control and proportionate.

Permission to appeal was refused on paper by Senior Immigration Judge Gleeson and Pill LJ. Before Toulson LJ, the appellant challenged the findings on Article 8 engagement, the impact on third parties, proportionality and delay. The central unresolved issue was whether the statutory appellate scheme required direct consideration of family members’ human rights.

1. Application adjourned. Toulson LJ did not determine permission to appeal. The respondent was absent, and the court considered that the substantial issue concerning third-party human rights should not be decided without representations from the Secretary of State.
2. The other grounds disclosed no real prospect of success. Even if the Immigration Judge had set the threshold for engagement of Article 8 too high, the appellant would still have to succeed on proportionality, applying the approach referred to in AG (Eritrea) v SSHD [2007] EWCA Civ 801. The court was not persuaded that the Immigration Judge had applied the wrong test or reached a perverse conclusion on the facts.
3. The argument based on MB (Croatia) [2005] UKAIT 00092 was rejected. The fact that the Immigration Judge quoted an earlier passage from Ouseley J’s judgment did not justify inferring that he had applied the pre-Huang exceptionality test discussed in a later passage which he did not cite. That test was no longer applicable.
4. The challenge based on delay also had no real prospect of success. The proper approach was set out by Buxton LJ in HB (Ethiopia) & Ors v SSHD [2006] EWCA Civ 1713, and there was no detectable error of law in the Immigration Judge’s treatment of delay.
5. The Immigration Judge had considered the circumstances of other family members only indirectly, so far as they affected the appellant’s own Article 8 rights. Toulson LJ described that as a well-established approach, but left open whether the statutory appellate scheme differed from that considered in SS (ECO - Article 8) Malaysia [2004] UKIAT 00091. Notice was to be given to the Secretary of State, submissions obtained, and the application relisted. The case was not reserved to Toulson LJ.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 509, Toulson LJ adjourned the permission application and directed that the Secretary of State be invited to provide submissions before relisting.
• Paper permission stage: Senior Immigration Judge Gleeson and Pill LJ rejected permission to appeal on paper.
• Asylum and Immigration Tribunal: Immigration Judge Roberts dismissed the appeal against removal, finding that Article 8 was not engaged and alternatively that removal was proportionate.