WB (Pakistan) v Secretary of State for the Home Department

In an Article 8 removal case, delay by immigration authorities must be assessed as part of a fact-sensitive proportionality exercise. Tribunals must examine the individual circumstances and the possible effects of prolonged delay. They must not apply a hard-edged requirement of exceptional or rare circumstances. Fault need not be allocated at the outset, although it may matter where delay was engineered by the claimant or culpably caused by the respondent. Decisions must explain the proportionality assessment in a structured, intelligible and transparent way. Where the tribunal applied a superseded approach and the appellate court cannot be sure that no other outcome was possible, the proper course is remission for redetermination.

The appellant, a Pakistani national, claimed asylum in 1998. The Secretary of State refused the claim in 2007, and the Asylum and Immigration Tribunal dismissed the appeal after reconsideration. The reconsidering immigration judge applied the then Court of Appeal guidance in HB (Ethiopia) [2006] EWCA Civ 1713. The appellant had also raised a possible application under paragraph 201 of the Immigration Rules, based on his business.

On appeal, the appellant confined his case to whether the matter should be remitted because the tribunal had not applied the later House of Lords guidance in EB (Kosovo) [2008] UKHL 41. The central issue was whether the tribunal’s proportionality conclusion could safely be upheld despite that legal error.

The appeal was unanimously allowed. Lord Justice Longmore gave the principal judgment, with Lord Justice Chadwick and Lord Justice Sedley agreeing. The matter was remitted to the Asylum and Immigration Tribunal for fresh reconsideration of the second-stage Article 8 issue.

1. Appellate restraint. The Court of Appeal was not the primary decision-maker. Where a tribunal had applied the applicable law wrongly, the court had to be sure that no other decision was possible before upholding the decision. If that could not be established, remission was required (para [8]).
2. Effect of later authority. The Court of Appeal approach in HB (Ethiopia) had been displaced by the House of Lords decision in EB (Kosovo) [2008] UKHL 41. The Article 8 inquiry required close examination of the facts, rather than application of a restrictive set of propositions. A hard-edged or bright-line rule was incompatible with the evaluative nature of Article 8 (paras [3], [9]-[10]).
3. Delay. Delay was a fact whose effects had to be assessed. It could be relevant in more than one way, particularly where prolonged. The court could not be sure that the immigration judge would have reached the same conclusion if the correct approach to delay had been applied (paras [9]-[10]).
4. Exceptionality and reasoning. Sedley LJ emphasised that neither KR (Iraq) [2007] EWCA Civ 514 nor AG (Eritrea) [2007] EWCA Civ 801 authorised a test of exceptionality or rarity. The prediction that removal would be proportionate in most cases could not be converted into a requirement to decide whether the case was exceptional. Proportionality decisions had to be structured, intelligible and transparent; opaque or dismissive one-line conclusions were unacceptable (paras [14]-[17]).
5. Fault in delay. Fault did not require initial allocation. It could matter at the extremes, where delay had been engineered by the claimant or culpably caused by the respondent, but those conclusions required evidence or a powerful inference (para [18]).

• Court of Appeal (Civil Division): Allowed the appeal and remitted the matter to the Asylum and Immigration Tribunal for reconsideration in light of EB (Kosovo) [2008] UKHL 41.
• Asylum and Immigration Tribunal: Immigration Judge Kanagartnam dismissed the original appeal on 29 January 2008. Senior Immigration Judge Spencer ordered reconsideration on 21 February 2008. Immigration Judge Turquet dismissed the appeal on reconsideration, applying the then Court of Appeal guidance in HB (Ethiopia) [2006] EWCA Civ 1713.