TG (Central African Republic) v Secretary of State for the Home Department

In an Article 8 entry-clearance case, the appellate court should ordinarily remit the proportionality assessment to the specialist fact-finding tribunal. The fact that the House of Lords decided proportionality itself in Chikwamba v SSHD [2008] UKHL 40 did not establish a general rule that an appellate court should do likewise. That course reflected Chikwamba’s exceptional facts, including removal of a mother with her young child. The appellate court should not determine proportionality merely because the case appears strong.

The appellant, a national of the Central African Republic, appealed against the Asylum and Immigration Tribunal’s decision of 5 November 2007 dismissing his Article 8 appeal. The Secretary of State accepted that the Tribunal had approached proportionality on a legally flawed basis, in light of Chikwamba v SSHD [2008] UKHL 40, and proposed remission to the Tribunal by consent.

The appellant instead sought an order that removal would be disproportionate. The central issue was whether the Court of Appeal should determine proportionality on the facts or remit that question to the specialist tribunal.

Appeal allowed and case remitted. The Court of Appeal held that Article 8 proportionality was fact-sensitive and should ordinarily be determined by the specialist fact-finding tribunal. No tribunal had yet properly applied the correct legal principles, so the matter had to return to the Asylum and Immigration Tribunal.

1. Chikwamba v SSHD [2008] UKHL 40 did not require the Court of Appeal to decide proportionality whenever an appellant relied on apparently strong facts. Its circumstances were materially different, including removal of a wife with her four-year-old child.
2. The present appellant’s son could remain in the United Kingdom with his mother, and the appellant’s immigration history was relevant. He had apparently disappeared from the official radar for about two years while living with his partner.
3. Lord Justice Buxton emphasised that the House of Lords’ failure to remit Chikwamba did not establish that future proportionality cases should be decided by an appellate court. It was unclear whether remission had been argued there, and the facts were regarded as extreme.
4. The Secretary of State’s proposed consent order was reasonable and realistic. The case was remitted to the AIT to redetermine proportionality.

1. Court of Appeal (Civil Division) — The appeal was allowed and the issue of Article 8 proportionality was remitted for redetermination.
2. Asylum and Immigration Tribunal — On 5 November 2007, the Tribunal dismissed the appellant’s appeal. The reconsideration order had limited the issues to Article 8.