MM (Democratic Republic of Congo) v Secretary of State for the Home Department

In an Article 8 deportation appeal, an incorrect reference to insurmountable obstacles does not necessarily make a tribunal’s decision unlawful where it also applies the correct question: whether it would be unreasonable for family members to accompany the deportee. The error is immaterial if the tribunal’s conclusion on that question is sustainable and it separately concludes that deportation would remain proportionate even if the family stayed in the United Kingdom. A tribunal need not address a policy or delay argument that was not raised before it where the alleged error is not obvious and could not realistically affect the outcome. Permission to appeal was refused.

The appellant, a citizen of the Democratic Republic of Congo, challenged an Asylum and Immigration Tribunal decision promulgated on 3 June 2009 dismissing his deportation appeal. He relied on family life with his partner, their child, and three other children living in the United Kingdom. The tribunal found that deportation engaged Article 8 but was proportionate, both on the basis that the relevant family members could reasonably accompany him and on the alternative basis that deportation would remain justified if they stayed in the United Kingdom.

The appellant alleged errors concerning the test of insurmountable obstacles, the Secretary of State’s policy DP 5/96, the minimum period of exclusion under paragraph 320(7B) of the Immigration Rules, and delay. The central question was whether the tribunal’s decision disclosed an arguable material error of law.

1. Application refused. The decision of the Asylum and Immigration Tribunal was legally unassailable and an appeal had no real prospect of success.
2. The tribunal should not have asked whether there were insurmountable obstacles to the partner and younger children joining the appellant in the Democratic Republic of Congo. [2009] EWCA Civ 5 established the correct approach. However, the tribunal also expressly asked whether it would be unreasonable to require the family members to go, which applied the substance of the correct test. Its conclusion was sustainable on the evidence.
3. The tribunal had properly considered the family members’ rights, as required by [2008] UKHL 39. It considered the partner’s HIV condition and the individual circumstances of the children. Nothing showed that relevant evidence or submissions had been overlooked.
4. The tribunal was not shown to have erred by failing to address policy DP 5/96. The policy had not been relied on before the tribunal, and consideration of it could not realistically have altered the proportionality assessment.
5. The tribunal’s alternative reasoning independently supported the result. It found that deportation would remain justified even if the family stayed in the United Kingdom and the appellant was separated from them for at least three years, probably longer. The reference to three years did not produce an error under paragraph 320(7B) of the Immigration Rules, since the reasoning expressly contemplated a considerably longer period.
6. The delay argument was raised too late. It was not advanced before the tribunal, was not included in the grounds of appeal, and was not obvious enough to require the tribunal to address it without argument. The tribunal knew the relevant dates and timings, and its failure to address delay expressly as a separate factor disclosed no arguable error. The finding that the appellant’s private life did not engage Article 8 was also sustainable.

• Court of Appeal (Civil Division): Permission to appeal refused. The court agreed with Sedley LJ’s refusal of permission on the papers and held that the AIT’s decision disclosed no arguable material error of law.
• Asylum and Immigration Tribunal: Decision promulgated on 3 June 2009; the deportation appeal was dismissed.