BS (Senegal) v Secretary of State for the Home Department

An Article 8 proportionality decision requires a structured assessment of the family life relied on and its material circumstances. Where a tribunal does not unequivocally accept that family life exists but proceeds on the assumption that it may, it must appraise its depth and breadth before assessing proportionality. This is especially important where removal would either separate an existing family or require relocation to a place unfamiliar to its members. A cursory or dismissive treatment of those matters may make the decision arguably legally flawed and justify permission to appeal. The court did not finally determine whether Article 8 was engaged or whether removal was proportionate.

The appellant renewed an application for permission to appeal from the Asylum and Immigration Tribunal’s second-stage reconsideration determination concerning removal to Senegal. The first determination, made in the appellant’s favour, had been held legally flawed, and that intermediate decision was not challenged. The renewed application focused on the dismissal of the Article 8 claim, alleging uncertainty about family life, inadequate proportionality reasoning, and failure to consider cohabitation, a Muslim marriage, an expected child and the partner’s British circumstances. The question was whether the AIT’s treatment of the Article 8 claim was arguably legally flawed. Fresh evidence was left for the appeal hearing.

Lord Justice Sedley granted the renewed application for permission to appeal on ground two. The court did not decide the substantive Article 8 appeal.

1. Family life and proportionality. Where a tribunal does not unequivocally accept that family life exists but assumes that it may, a sensible proportionality assessment requires a proper appraisal of the depth and breadth of that family life. Without that appraisal, the proportionality conclusion may lack a proper foundation.
2. Structured decision-making. The challenge was arguable because the AIT appeared to have dealt cursorily and in a wholly unstructured way with proportionality. The issue was particularly important because removal might either break up an existing family or transpose it to a place strange to all its members.
3. Material circumstances. The proposed appeal could properly address the alleged failure to evaluate cohabitation, the Muslim marriage, the expected child, the partner’s British citizenship and lifelong residence, her lack of experience of Senegal, and her lack of knowledge of local languages. A vague reference to any interference with family life did not adequately answer that criticism.
4. Authorities. The court reiterated the structured approach discussed in AG (Eritrea) [2007] EWCA Civ 801 and VW (Uganda) [2009] EWCA Civ 5. Permission was granted without a formal restriction beyond ground two. The ancillary question of fresh evidence was stood over to the appeal hearing before three judges.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was granted on ground two: [2009] EWCA Civ 159.
• Asylum and Immigration Tribunal: Following an earlier determination in the appellant’s favour which had been held legally flawed, the AIT conducted a second-stage reconsideration and dismissed the Article 8 claim. The appeal was recorded as AIT No. AA/12869/2007.