RU (Sri Lanka) v Secretary of State for the Home Department

In an Article 8 immigration case, delay by the Secretary of State does not itself create a claim. It may increase the factual basis for private or family life under Article 8(1). Where a claimant has no potential right to remain under immigration policy, delay in an earlier asylum claim is relevant under Article 8(2) only if its effects are very substantial. Proportionality is primarily a judgment for the tribunal, and an appellate court should intervene only for a material error of law. A contribution to the community is not a freestanding proportionality factor, although it may illuminate private life and may be relevant to the Secretary of State’s separate removal decision. The appeal was dismissed because removal was proportionate despite the appellant’s long residence and private life.

The appellant, a Sri Lankan national, arrived in the United Kingdom in 1993 and claimed asylum. His claim was rejected and his appeal rights were exhausted. A fresh asylum claim made in 1997 was not dealt with, and the appellant remained in the United Kingdom, later marrying, establishing a business and having a child.

Immigration Judge Oliver allowed his Article 8 appeal. On reconsideration, Immigration Judge Blandy found material errors of law and directed a full redetermination. Immigration Judge Omotosho then dismissed the Article 8 appeal, finding removal proportionate. The issues before the Court of Appeal were whether reconsideration was properly ordered and whether the redetermination contained a material error of law.

The Court of Appeal unanimously dismissed the appeal. Scott Baker LJ gave the principal judgment, with Richards LJ and Pill LJ agreeing.

1. First reconsideration. Immigration Judge Oliver materially erred in finding that the appellant had not acquiesced in the Secretary of State’s delay. The period of inactivity from 1997 to 2005 ended when the respondent served the I.S.96 NW in March 2005. There was no evidence that the appellant had pursued his fresh asylum claim. The Asylum and Immigration Tribunal was therefore entitled to order a redetermination, although Immigration Judge Blandy’s reasoning was unsatisfactory.
2. Article 8. Removal of the appellant, his wife and child together would not interfere with family life in the relevant sense because neither wife nor child had legal status in the United Kingdom. The appellant nevertheless had an established private life, and removal engaged Article 8(1).
3. Delay and proportionality. Delay may strengthen the factual basis for private or family life, but does not itself create an Article 8 claim. For a person with no potential immigration-policy right to remain, delay in dealing with a previous asylum claim is relevant under Article 8(2), but must have very substantial effects before it can influence the outcome. The earlier delay carried reduced weight because the appellant had not pursued the claim and the respondent had precipitated the end of the inactivity. It created no additional right or legitimate expectation.
4. Review and community contribution. Proportionality is ordinarily a matter of judgment for the tribunal, and appellate intervention requires a material error of law. The contribution made by establishing a business was not a freestanding Article 8 factor, though it could illuminate private life. Relevant personal history, character, conduct and employment record could also be considered under section 10 of the Immigration and Asylum Act 1999 and paragraph 395C of the Immigration Rules (HC 395).

Immigration Judge Omotosho made no material error of law. Removal was a proportionate response in pursuit of effective immigration control. The appeal was dismissed.

• Court of Appeal (Civil Division): dismissed the appeal against the redetermination; [2008] EWCA Civ 753.
• Asylum and Immigration Tribunal: Immigration Judge Omotosho dismissed the redetermined Article 8 appeal on 4 July 2007, finding removal proportionate.
• Asylum and Immigration Tribunal: Immigration Judge Blandy found material errors of law in Immigration Judge Oliver’s decision and directed a full reconsideration on 15 February 2007.
• Immigration Judge Oliver: allowed the appellant’s Article 8 appeal on 16 March 2006.