Sivagnanam, R (on the application of) v Secretary of State for the Home Department

In an Article 8 case, the question is whether removal would cause an interference sufficiently grave to engage the Convention, followed by a substantive balancing exercise. Exceptionality is not a threshold requirement. The assessment must be structured, fair and visible, having regard to the claimant’s circumstances and the public interest in maintaining a fair immigration scheme. Where the underlying immigration decision correctly concludes that Article 8 is not engaged, or where removal could not on any view be disproportionate, a later set of representations will not ordinarily disclose a realistic prospect of success or constitute a fresh claim. An error in stating or applying the legal test is immaterial where the outcome could not have been different.

The claimant, a Sri Lankan national, had remained in the United Kingdom after his asylum appeal was refused and his appeal rights were exhausted. He later relied on his private and family life, including his education, businesses, marriage, child and siblings in the United Kingdom. An Immigration Judge dismissed his Article 8 appeal on 28 August 2006. After further representations in May 2007, the Secretary of State decided that they did not amount to a fresh claim. The claimant sought judicial review, arguing that the Secretary of State had failed adequately to consider whether the Immigration Judge had applied the correct Article 8 test. The issue was whether the representations disclosed a realistic prospect of success.

1. The claim for judicial review was dismissed. The Secretary of State had properly considered the May 2007 representations and was entitled to conclude that they did not amount to a fresh claim.

2. The Immigration Judge had found that removal would not involve an interference with the claimant’s private or family life of sufficient gravity to engage Article 8. That was a conclusion reasonably open on the evidence and disposed of the appeal at the second question in the framework identified by Lord Bingham in Razgar [2004] UKHL 27. If the answer to that question is negative, the Article 8 claim fails.

3. Alternatively, the Immigration Judge had conducted the required balancing exercise. The references to “true exceptionality” did not show that exceptionality had been treated as a threshold requirement. The substance of the determination showed a fair and balanced assessment of the claimant’s rights against the public interest in maintaining and enforcing a fair immigration scheme, as required by the House of Lords decision in Huang [2007] UKHL 11.

4. The Court of Appeal approach in Huang [2005] EWCA Civ 105, which had treated true exceptionality as relevant, was not the correct approach. The error identified in that approach was one of substance rather than form.

5. In any event, even if the Immigration Judge had applied the wrong test, removal could not on the facts have been disproportionate. The claimant had no lawful right to work, his businesses could be maintained or sold, his wife and child could accompany him to Sri Lanka, and his ties with his siblings were no more than normal. The principles stated in AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801 supported the conclusion that any error was immaterial where removal could not on any view be disproportionate.

The judgment describes an earlier immigration appeal before Immigration Judge Froom, who dismissed the claimant’s Article 8 appeal on 28 August 2006. The Secretary of State later rejected further representations as not amounting to a fresh claim. The present judicial review claim was dismissed by the High Court (Administrative Court).