TK (Burundi) v Secretary of State for the Home Department

On a renewed application for permission to appeal in an Article 8 case, it was arguable that an immigration judge had erred in law by rejecting an applicant’s uncontradicted evidence of family relationships and financial support solely because it was uncorroborated. The issue had not previously been put in dispute. Permission was granted on that ground and on a related ground concerning Strasbourg jurisprudence. Permission was refused on complaints about the original error-of-law decision, the effect of removal on the applicant’s patients, and proportionality. Working through the five questions in R (Razgar) v SSHD [2004] UKHL 27 did not itself disclose legal misdirection. The court made no final determination of the arguable grounds.

The appellant claimed asylum in 1996. An adjudicator dismissed his asylum appeal on 31 January 2005 but allowed his appeal under Article 8. Following a successful application by the Secretary of State for reconsideration on the basis of an error of law, Immigration Judge Scobbie dismissed the Article 8 case on 14 May 2007 in proceedings identified as AIT No. HX/14596/2003.

After permission to appeal was refused on the papers, the appellant renewed his application. The issues were whether the immigration judge had unlawfully rejected his evidence about his relationships with his daughters and financial contributions because it was uncorroborated, and whether the Strasbourg jurisprudence had been properly taken into account.

Application granted in part. Permission to appeal was granted on grounds 3 and 4. The remaining grounds were refused.

1. The complaint that the original adjudicator had made no material error of law was unarguable.
2. The effect of removal on the appellant’s patients was not itself an Article 8 matter. Its indirect effect on the appellant was relevant, but the immigration judge had taken that effect into account.
3. It was arguable that the immigration judge had erred in law by rejecting the appellant’s account of his family relationships and financial contributions solely because it lacked corroboration. The Secretary of State had not, before the hearing, apparently put those matters in issue. The evidence concerning the appellant’s second daughter was also given only about four weeks after her birth. The court did not finally determine the point.
4. The ground concerning the Strasbourg jurisprudence was not strong, but it was permitted to proceed with ground 3.
5. There was no misdirection in relation to proportionality. The immigration judge had worked through the five questions identified in R (Razgar) v SSHD [2004] UKHL 27, and that exercise disclosed no legal error.

The matter was directed to be listed before a three-judge court. The formal order was: application granted in part.

• Court of Appeal (Civil Division): On renewal, permission to appeal was granted in part on grounds concerning uncorroborated evidence and Strasbourg jurisprudence; permission was refused on the remaining grounds.
• Asylum and Immigration Tribunal: Immigration Judge Scobbie, on reconsideration dated 14 May 2007, dismissed the appellant’s Article 8 case after the Secretary of State had successfully challenged the earlier Article 8 decision for error of law.
• Adjudicator: On 31 January 2005, the asylum appeal was dismissed but the Article 8 appeal was allowed.