CE (Colombia) v Secretary of State for the Home Department

In an Article 8 removal case, proportionality requires a fact-sensitive balancing exercise. The impact of removal on private and family life must be weighed against the public interest in immigration control. The tribunal must also consider whether family life could realistically be conducted outside the United Kingdom. A conclusion that circumstances are exceptional is insufficient without that balancing exercise. Delay by the Secretary of State may be relevant, particularly where it has allowed private or family life to develop, but it does not itself establish a right to remain. A tribunal that considers these matters and reaches a reasoned conclusion does not err in law merely because the assessment is fact-sensitive.

CE, a Colombian citizen, appealed from an Asylum and Immigration Tribunal reconsideration decision dismissing her appeal against the Secretary of State’s decision that removal would not breach Article 8. An Immigration Judge had initially allowed the appeal, finding that removal would be disproportionate because of CE’s relationships with family members in the United Kingdom. On reconsideration, the Senior Immigration Judge found a material error of law because the first decision had not balanced the effect of removal against immigration control or considered whether family life could be conducted outside the United Kingdom. He then reconsidered the merits and dismissed the appeal. The central issues were whether that approach involved an error of law and whether the application should be adjourned pending decisions in other cases.

1. Application refused. Tuckey LJ, with whom Toulson LJ agreed, refused the renewed application for permission to appeal and the requested adjournment.
2. The first Immigration Judge’s proportionality reasoning was materially defective. It addressed only the adverse effects of removal. It did not balance those effects against the need for immigration control or consider whether private and family life could be conducted outside the United Kingdom. A finding that the circumstances were exceptional did not demonstrate that the required balancing exercise had been undertaken.
3. The Senior Immigration Judge therefore had jurisdiction to reconsider the merits on the undisputed facts. His review of the facts and balancing exercise were proper and reasoned. It was unrealistic to assume that all the family members would leave the United Kingdom, but there was no reason to assume that removal would end all contact with the families.
4. The assessment of whether family life could be conducted elsewhere did not involve an insurmountable obstacles test. The Senior Immigration Judge had evaluated the practical possibility of continuing family life and had not imposed a threshold requirement.
5. The five-and-a-half-year delay in deciding CE’s Article 8 claim was relevant. The Senior Immigration Judge correctly considered the principles identified in HB (Ethiopia) v SSHD [2006] EWCA Civ 1713 and recognised that CE’s more than eleven years in the United Kingdom required consideration of whether removal remained necessary. The case involved no specific right to remain under the Immigration Rules, and the delay did not make removal disproportionate in the circumstances.
6. The issue concerning the Article 8 rights of non-appellant family members, raised by reference to Betts v SSHD [2005] (EWCA) Civ 828, had not been raised or considered as a freestanding issue below and had no bearing on the application. There was consequently no reason to await the House of Lords’ decisions.

• Court of Appeal (Civil Division): Refused CE’s renewed application for permission to appeal and declined to adjourn pending decisions in other cases.
• Asylum and Immigration Tribunal: On reconsideration, Senior Immigration Judge Perkins found a material error of law in the initial decision, reconsidered the Article 8 merits, and dismissed the appeal.
• Immigration Judge: Initially allowed CE’s appeal, finding that removal would be disproportionate because of her family and private life in the United Kingdom.