NA (Afghanistan) v Secretary of State for the Home Department

In an Article 8 removal case, the appellate permission question is whether the tribunal arguably made an error of law, not whether the appellate judge might have reached a different proportionality assessment. A tribunal may assess the applicant’s private life in the round by balancing its established features against the public interest in effective immigration control. The fact that private-life elements, such as employment, education and friendships, may continue in a different form after return does not itself determine proportionality. Where the tribunal has followed the structured approach in Razgar and reached a legally open conclusion, the Court of Appeal should refuse permission.

The applicant, an Afghan national, appealed against the Secretary of State’s refusal to grant further leave to remain or vary his leave. An earlier immigration judge dismissed the appeal, but the Article 8 ground was ordered to be reconsidered by HH Judge Pelling QC in the Administrative Court. The reconsideration was limited by SIJ Spencer’s order, which preserved the finding that the applicant had no relations in Afghanistan.

The SIJ accepted that removal would engage Article 8 and that the interference would be lawful and directed to immigration control. He nevertheless concluded that removal would be proportionate. The applicant renewed his application for permission to appeal, contending that the SIJ had failed to apply a structured and holistic approach. The central issue was whether the determination arguably contained an error of law.

1. Application refused. The Court of Appeal refused the renewed application for permission to appeal. The question was whether an appeal against the SIJ’s determination had a real prospect of success, or whether there was another compelling reason for it to be heard under Civil Procedure Rules 1998, rule 52.3(6).
2. The SIJ had correctly directed himself by the five questions identified in Razgar v Secretary of State for the Home Department [2004] UKHL 27. He was entitled to find that removal engaged Article 8, that the interference was in accordance with the law and necessary in pursuit of immigration control, and that the decisive issue was proportionality.
3. The complaint that the SIJ had failed to assess the applicant’s private life holistically was rejected. The SIJ had considered the matter in the round and balanced the applicant’s private life, including his relationships, employment, voluntary work and education, against the Article 8.2 factors relied upon by the Secretary of State. The fact that those aspects of private life might continue in different forms in Afghanistan did not show an error of law.
4. The appellate court’s task was not to decide whether it would have reached the same factual or proportionality conclusion. Lord Justice Wall observed that he might have reached a different conclusion had he been deciding the case, but that was not the test. The issue was whether the SIJ arguably made an error of law, and no such error was identifiable.
5. The applicant had exhausted his legal remedies. Decisions concerning exceptional leave to remain remained matters for the Secretary of State, whose statutory discretion the court could not exercise.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused.
• Administrative Court of the Queen’s Bench Division: HH Judge Pelling QC ordered reconsideration of the Article 8 ground on 15 September 2008.
• Immigration Tribunal: the SIJ’s reconsideration decision, promulgated on 5 January 2009, rejected the Article 8 challenge and found removal proportionate.
• Permission was initially refused by SIJ Batiste on 5 March 2009 and by Sullivan LJ on paper on 30 April 2009.