VW (Uganda) v Secretary of State for the Home Department

In Article 8 immigration cases, proportionality is an individual and fact-sensitive balance. It is not a search for insurmountable obstacles. The correct inquiry is whether it is reasonable to expect family members to relocate, having regard to every material effect of removal or refusal. A real interference with family life does not face a specially high threshold before Article 8 is engaged. Once immigration control pursues a permitted aim, there is no separate necessity test before proportionality. Where a family’s future choices are uncertain, the decision-maker must assess the hardship of the dilemma rather than speculate about the choice that will be made. The prospect of later entry clearance will not ordinarily justify removal and may strengthen the Article 8 claim.

Two appeals concerning Article 8 were heard together. VW, a Ugandan national, faced removal after her asylum claim failed. Her partner was a British citizen and their young daughter was a British citizen. An immigration judge dismissed her human rights appeal, and the Asylum and Immigration Tribunal held that the judge’s error on Article 8 engagement was immaterial.

AB, a Somali national, sought entry clearance with her six children to join her husband in the United Kingdom. Following reconsideration, an immigration judge dismissed the appeal on the basis that family life could be established in Ethiopia or Somalia with no more than hardship.

The common issue was the proper Article 8 approach to removal or refusal of entry clearance, particularly the use of an insurmountable obstacles formulation.

1. Disposition. Sedley LJ, with whom Wilson and Mummery LJJ agreed, dismissed AB’s appeal but allowed VW’s appeal. The two cases did not stand or fall together.
2. The Article 8 framework. Following EB (Kosovo) [2008] UKHL 41, proportionality is a careful and informed evaluation of the particular facts. The inquiry is not whether an insurmountable obstacle prevents family relocation. It is whether it is reasonable to expect the family to leave with the person affected. More than technical or inconsequential interference is needed to engage Article 8(1), but there is no specially high threshold. Once immigration control falls within a permitted purpose, proportionality in the individual case answers whether the restriction is necessary in a democratic society.
3. Future family choices. A tribunal should not treat an uncertain future decision by family members as an established fact. Where reliable prediction is impossible, it must evaluate the hardship of the dilemma created by removal or deportation. The likely availability of entry clearance should not ordinarily make removal proportionate. In light of Chikwamba [2008] UKHL 40, it may instead reinforce the Article 8 claim.
4. AB. The immigration judge’s finding that reunion in Ethiopia or Somalia would involve no more than hardship was sustainable. This was not an enforced break-up of an existing household. It was an attempt to reunite a family already living apart. It was open to the judge to infer that, if the family could reside in Ethiopia without entitlement, the sponsor could do so as well. The refusal of entry clearance was proportionate.
5. VW. The immigration judge and the Tribunal failed to assess whether it was reasonable to expect the British-citizen partner, who had no connection with Uganda, to relocate there. They also failed properly to consider the British-citizen child’s position and the serious dilemma caused by separating her from either parent. The likely temporary nature of any separation did not reduce its gravity. On the sustainable facts, enforced family break-up was not justified by immigration control. VW’s appeal was allowed outright.

• Court of Appeal (Civil Division): By [2009] EWCA Civ 5, VW’s appeal was allowed and AB’s appeal was dismissed.
• Asylum and Immigration Tribunal: In VW’s case, the Tribunal found an error concerning Article 8 engagement but held it immaterial and allowed the dismissal to stand. In AB’s case, a first-stage reconsideration identified an Article 8 error and a second-stage re-determination dismissed the appeal.
• Earlier proceedings: The immigration judges had dismissed VW’s asylum and human-rights appeal and AB’s entry-clearance appeal. In AB’s case, Dobbs J ordered reconsideration of the original approach to Article 8.