Olum, R (on the application of) v Secretary of State for the Home Department

When assessing an Article 8 challenge to removal, the decision-maker must apply the ordinary proportionality test. There is no separate legal requirement that the case satisfy an exceptionality test. The practical result may nevertheless be that removal is disproportionate only in a small minority of cases.

Where a tribunal has lawfully engaged in the required balancing exercise and has found removal proportionate on the facts, a renewed judicial review application will fail if there is no realistic prospect of success before an immigration judge.

The claimant, a Ugandan national with indefinite leave to remain, challenged the refusal to treat further Article 8 representations as a fresh human rights claim and also challenged his proposed removal following a deportation order.

The claimant relied on the revised proportionality approach explained in Huang. The court considered whether that revised approach created a realistic prospect of success before an immigration judge, having regard to the earlier tribunal’s findings that removal was proportionate and that the claimant could re-establish his private life in Uganda.

1. Application refused. The court held that applying the revised Article 8 test in Huang to the facts, there was no realistic prospect of the claimant succeeding before an immigration judge.
2. The relevant question was whether removal was proportionate to the legitimate aim of preventing disorder or crime. The test did not require a separate inquiry into whether the case was exceptional. The approach in AG (Eritrea) was consistent with that understanding.
3. The Asylum and Immigration Tribunal had undertaken a balancing exercise under paragraph 364 of the Immigration Rules and had separately considered Article 8. It had found that the claimant’s removal would be lawful, pursued a legitimate aim and was proportionate. It had considered the gravity of the interference with private life, the claimant’s residence in the United Kingdom, his connections in Uganda and the possibility of re-establishing private life there.
4. The court regarded the tribunal’s conclusion on proportionality as significant. The claimant could not show a realistic prospect of success merely by seeking to separate the tribunal’s legal test from its factual conclusion.
5. The claimant’s challenge to removal and the fresh-claim decision therefore did not justify permission for judicial review. There was no order as to costs. An expedited transcript was ordered.