TF (Angola) v Secretary of State for the Home Department

For an Article 8 family-life claim based on removal, the correct question is whether the family can reasonably be expected to relocate together to the country of origin. Requiring proof of no insurmountable obstacle sets too high a threshold. An error in stating the test is material only if applying the correct test could realistically affect the result. Where the tribunal’s findings make the same outcome inevitable, the appeal may be dismissed. An ambiguous historical immigration record does not bind the tribunal to an earlier risk or credibility assessment unless it clearly records a concluded view.

The appellant, an Angolan national, challenged refusal of indefinite leave to remain based on her marriage. Her husband had previously been granted exceptional leave to remain, and their two younger children were British citizens. An initial immigration-judge decision found interference with family life under Article 8. Following an appeal, the Senior Immigration Judge ordered a full reconsideration.

On reconsideration, Immigration Judge Brunnen dismissed the appeal. The appellant challenged the direction that there had to be no insurmountable obstacle to the family’s return, argued that the error was material, and relied on a previously undisclosed consideration minute concerning her husband’s earlier immigration case. The central issues were the correct relocation test, the materiality of the legal error, and whether the minute required remittal.

1. Appeal dismissed. Lord Justice Elias gave the judgment. Lord Justice Waller and Lord Justice Keene agreed.
2. The tribunal had misstated the Article 8 test by asking whether there was any insurmountable obstacle to the family returning to Angola. That set the threshold too high. The proper inquiry was whether the family could reasonably be expected to relocate together to the country of origin. This approach was confirmed in VW (Uganda) v SSHD ([2009] EWCA Civ 5, para 19), consistently with EB (Kosovo) ([2008] UKHL 41). [8]
3. The error was not material. The appeal could succeed only if applying the correct test might have produced a different result. The family had spent most of their lives in Angola, the younger children had no significant ties to the United Kingdom, the older child could adapt, the husband’s medical conditions could be treated in Angola, and he faced no risk of persecution on return. Relocation was plainly reasonable. [8]-[9]
4. The consideration minute did not establish a concluded earlier finding by the Secretary of State that the husband was credible or faced a real risk on return. Read with the refusal letter, it was ambiguous and conflicted with the credibility doubts expressed there. If the minute alone had recorded a concluded view, the immigration judge should not have revisited that issue. It did not do so, and the judge was therefore entitled to assess the risk afresh. The conflict could not satisfactorily be resolved and did not justify remittal. [10]-[14]
5. The court recognised that a real risk to the husband on return could make it reasonable for him not to return and for the appellant and children to remain with him. On the findings made, however, no such risk existed. [11]

1. Court of Appeal (Civil Division) dismissed the appeal from the Asylum and Immigration Tribunal: [2009] EWCA Civ 905.
2. Asylum and Immigration Tribunal, on full reconsideration, dismissed the appellant’s Article 8 appeal.
3. Immigration Judge, decision dated 8 April 2008, found that the refusal decision interfered with the appellant’s Article 8 rights. A Senior Immigration Judge subsequently ordered reconsideration in the form of a full hearing.