BL (Serbia) v Secretary of State for the Home Department

Article 8 family life is not confined to the nuclear family and may exist between more distant relatives or relations by marriage. If the family can reasonably be expected to return together, removal will not interfere with family life in the United Kingdom. Otherwise, the decision-maker must assess justification and proportionality under Article 8.2. The closeness and mutual dependence of the relationship, the degree of interference and the practical possibility of continued contact are relevant. In a later appeal, an earlier determination is the starting point and authoritative only as an assessment of the earlier circumstances. It is not binding and is not subject to appellate reconsideration. The immigration judge must decide the current case on current facts and law. No formal exceptionality test applies, although lawful immigration control will ordinarily justify removal.

BL, an ethnic Albanian from Kosovo, appealed against the refusal of indefinite leave to remain on human rights grounds. An earlier Immigration Appeal Tribunal decision had allowed her Article 8 appeal. On reconsideration, Immigration Judge Holmes held that the earlier determination was legally flawed and ordered a fresh hearing.

Immigration Judge Trethowan accepted that BL had continuing private and family life with her sister-in-law and niece, but dismissed the appeal after assessing the circumstances at the date of the rehearing. The central issues were whether the earlier determination controlled the outcome, whether its reasoning was internally inconsistent, and whether removal was proportionate under Article 8.2.

Appeal dismissed.

1. Article 8 protects private and family life beyond the nuclear family. Family life may exist between more distant relatives and between relations by marriage. If the family as a whole can reasonably be expected to return to the country of origin, removal of one member does not interfere with family life in the United Kingdom. If return together cannot reasonably be expected, removal potentially engages Article 8 and requires assessment under Article 8.2.
2. At the proportionality stage, the decision-maker must consider the closeness and mutual dependence of the relationship, the degree of interference and whether contact or visits can realistically continue. The closer and more dependent the relationship, the more difficult it will be to justify removal.
3. The principles in Devaseelan [2002] UKIAT 00702, as upheld and explained in Djebbar [2004] EWCA Civ 804, applied. The earlier determination was the starting point and an authoritative assessment of the circumstances then existing. It was not binding, and the later judge was not hearing an appeal against it. Subsequent factual developments and changes in the law had to be considered.
4. Huang [2007] UKHL 1 displaced any formal exceptionality test. The immigration judge had to make an original assessment of proportionality under the law applicable at the date of decision. The expectation that successful cases would be rare remained relevant, but was not itself a legal test. The approach in Huang [2005] EWCA Civ 105 was therefore no longer applicable.
5. Immigration Judge Kulatilake’s determination was fatally inconsistent. His finding that the family could return together conflicted with his later assumption that BL would return alone. Neither finding could stand, so reconsideration was inevitable. Immigration Judge Trethowan correctly treated the 2002 determination as his starting point, considered the strengthened relationships, BL’s circumstances, conditions in Kosovo and the possible support of her brothers, and reached a conclusion open to him. No perversity or other legal error was established.

1. Court of Appeal (Civil Division): dismissed BL’s appeal.
2. Asylum and Immigration Tribunal, 23 April 2007: following a fresh hearing ordered on reconsideration, Immigration Judge Trethowan dismissed BL’s appeal.
3. Asylum and Immigration Tribunal, 14 February 2007: Immigration Judge Holmes held that Immigration Judge Kulatilake’s earlier determination was legally flawed and ordered reconsideration before a different judge.
4. Earlier Immigration Appeal Tribunal decision, 26 November 2002: allowed BL’s Article 8 appeal on the circumstances then established.