AZ (Bangladesh) v Secretary of State for the Home Department

In an Article 8 removal case, the tribunal must follow the structured inquiry required by Razgar, addressing engagement, lawfulness, necessity and proportionality. Relevant features of the individual case, including family support, roots and delay, must be considered in the proportionality balance. Delay may strengthen private-life ties, but delay caused by the applicant’s own failure to regularise status will not generally reduce the weight of immigration control. An omission is an error of law, but it is immaterial where the overall outcome is clearly unaffected.

The appellant, a Bangladeshi national, appealed against refusal of leave to remain. He claimed to have arrived in the United Kingdom unlawfully in 1995, aged about fourteen and a half, and relied on long residence under paragraph 276B of HC 395 and on Article 8 private life.

An Immigration Judge dismissed his appeal. Wilkie J ordered reconsideration because the Article 8 assessment was inadequate. Senior Immigration Judge Martin accepted that the original decision contained an error of law but held it immaterial and dismissed the appeal. The central issue was whether the reconsideration decision had failed materially to address relevant facts, including possible family support in Bangladesh, and whether removal would be disproportionate.

Appeal dismissed. Scott Baker LJ gave the judgment, with which Ward LJ and Smith LJ agreed.

1. Article 8 framework. The first Immigration Judge had failed to apply the structured, step-by-step inquiry required by Razgar [2004] UKHL 27. The approach, as restated in EB (Kosovo) v SSHD [2008] UKHL 41, requires consideration of interference, gravity, lawfulness, necessity and proportionality. The necessity and proportionality questions may ordinarily be considered together.
2. Relevant facts. Article 8 was engaged in respect of private life only. The question whether the appellant had extended family in Bangladesh was relevant to the proportionality assessment. Immigration Judge Martin should have confronted the earlier unsustainable factual finding and expressly addressed the matter in the balancing exercise. Her omission was an error of law.
3. Delay. Delay had strengthened the appellant’s private-life ties. The aspect of delay concerning relationships formed under precarious immigration status was not engaged because the appellant was alone. The Secretary of State’s delay, even if culpable, was limited compared with the preceding period, and had not caused loss of a right or other prejudice. The appellant’s much longer failure to regularise his position carried substantial weight against him.
4. Materiality and proportionality. The error concerning family support was of very little significance in the circumstances. The appellant was single, healthy, resourceful and financially established, had limited roots apart from property, and could speak the language of Bangladesh. He did not qualify for the long-residence concessions in paragraph 276B of HC 395. The public interest in maintaining immigration control overwhelmingly outweighed his private-life claim. The error therefore was not material, and the appeal was dismissed.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 158, the appeal was dismissed.
• Asylum and Immigration Tribunal: Immigration Judge Abebrese dismissed the appeal on 26 June 2007. Wilkie J ordered reconsideration on 20 November 2007 because Article 8 had been inadequately considered. Senior Immigration Judge Martin accepted an error of law but held it immaterial and upheld the dismissal.