AD (Algeria) v Secretary of State for the Home Department

In an appeal confined to the appellant’s own human-rights grounds, the tribunal must assess whether removal interferes with the appellant’s Article 8 family life. It must consider the effect of removal on family life as a whole, including its impact on family members whose rights are not independently under appeal, so far as that impact bears on the appellant’s rights. A tribunal may recognise that the family can return together and assess the resulting disruption and its effect on the appellant. Where the evidence and findings show that the tribunal adopted that approach, no arguable error arises.

This was a renewed application for permission to appeal against the Asylum and Immigration Tribunal’s decision of 7 August 2007. The applicant, an Algerian citizen, had sought leave to remain under the highly skilled migrant programme after an unsuccessful asylum claim. His appeal under the Immigration Rules and on human-rights grounds was initially dismissed.

Following an earlier remittal, the AIT found a material error in the original determination because an exceptionality approach had been applied, which Huang demonstrated was inappropriate. On reconsideration, confined to the human-rights issue, the AIT again dismissed the appeal. The central issue was whether the AIT had unlawfully limited its consideration of the dependants’ rights or wrongly assumed that the family would return together.

Application refused. The Court of Appeal held that the AIT had not arguably erred in its approach to Article 8 family life.

1. Although an appeal under section 65 is concerned with breaches of the actual appellant’s human rights, the tribunal must consider the impact of proposed removal on the family life of persons with whom the appellant has established family life. The effect on the family as a whole may bear directly on the appellant’s own Article 8 rights. The court accepted and applied the principles stated by Jack J in The Crown on the Application of AC v The Immigration Appeal Tribunal [2003] EWHC 389.
2. The AIT had applied that approach. Its findings addressed the established family life, the possibility of the family returning together, the disruption caused by return, the children’s adjustment and achievements in the United Kingdom, and the likely effect on the appellant. The AIT’s recognition that the family could return together did not show that it had ignored the impact on the other family members.
3. The alternative submission that removal should have been treated as interfering with family life added nothing material to the principal argument. The renewed application therefore disclosed no sufficiently persuasive arguable ground of appeal.

The formal order was that the application be refused.

• Court of Appeal (Civil Division): On 22 January 2008, Forbes J refused the renewed application for permission to appeal against the AIT’s reconsideration decision.
• Court of Appeal (Civil Division): On 18 December 2006, by consent, the matter was remitted to the AIT for reconsideration before a differently constituted tribunal, following the earlier application of JM (Liberia) [2006] UKAIT 0009.
• Asylum and Immigration Tribunal: On reconsideration, the tribunal found a material error in the original determination, reconsidered the human-rights issue, and confirmed dismissal of the appeal.