SK (Sierra Leone) v Secretary of State for the Home Department

In deportation appeals under paragraph 364 of HC395, the tribunal must keep the Rules inquiry distinct from the proportionality assessment under Article 8, even where the evidence overlaps. The compassionate-circumstances factor is not governed by a pre-Huang exceptionality test or a requirement of a legal insurmountable obstacle to family relocation. The tribunal must assess the serious disruption and practical difficulties that the particular family would face, and give reasons that engage with that evidence. Merely reciting the evidence, or treating the difficulties as those faced by any deported family, is insufficient. Failure to conduct that analysis is a material error of law requiring reconsideration.

The appellant, a Sierra Leone citizen, appealed against an Asylum and Immigration Tribunal reconsideration decision affirming its earlier dismissal of his appeal against a deportation decision made under section 3(5)(a) of the 1971 Act. He relied on paragraph 364 of HC395 and Article 8, relying on the effect of removal on his British wife, children and step-children. The tribunal treated the family’s relocation difficulties as lacking a legal insurmountable obstacle and as no more than disruption faced by any deported family. The central issue was whether the tribunal had adequately distinguished the Rules and human-rights issues and properly addressed the compassionate circumstances relied upon.

Appeal allowed. The first tribunal made a material error of law in its approach to the effect of deportation on the appellant’s family. The case was remitted to the Asylum and Immigration Tribunal for reconsideration.

1. Distinct inquiries. Paragraph 364 of HC395 and Article 8 required distinct consideration, although the factual matters could overlap. The first tribunal’s structure made it unclear whether paragraphs 135 and 136 addressed compassionate circumstances under paragraph 364 or proportionality under Article 8. It then failed to reach a clear conclusion on the paragraph 364 issues.
2. Compassionate circumstances. The tribunal had applied a pre-Huang exceptionality approach. That approach was inappropriate to the compassionate-circumstances factor under paragraph 364. The appellant was not required to show a legal obstacle to his wife and children relocating. The tribunal had to consider the serious disruption and practical difficulties which this particular family would face.
3. Adequate reasons. It was insufficient merely to recite the evidence. The tribunal had to engage with the wife’s circumstances and the impact of relocation on the appellant’s own family. The second tribunal should have recognised this error and ordered a reconsideration.
4. Appellate scrutiny. Lord Justice Carnwath added that the approach in AH (Sudan) v SSHD [2007] UKHL 49 did not impose a different standard from the guidance in R (Iran) v SSHD [2005] EWCA Civ 982. He also considered the related observations in AS and DD (Libya) v SSHD [2008] EWCA Civ 289, AA (Uganda) v SSHD 2008 EWCA Civ 579 and ECO (Mumbai) v NH (India) [2007] EWCA Civ 1330. These were additional observations and did not alter the basis on which the appeal was allowed.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 853, the appeal was allowed and the case remitted for reconsideration.
• Asylum and Immigration Tribunal: The tribunal’s reconsideration affirmed its earlier decision dismissing the appeal against deportation (AIT No. IA/08096/2006).