YD (Togo) v The Secretary of state for the home Department

In an Article 8 removal case, proportionality is not determined by asking whether there are “insurmountable obstacles” to family life continuing in the country of removal. The decision-maker must make a balanced assessment of all the circumstances, including whether it is reasonable to expect the family to relocate. A tribunal commits an error of law if it treats the absence of such obstacles as the critical legal test. If its reasoning leaves that legal basis unclear, the decision is also defective for want of legally sufficient reasons.

The appellant, a Togolese national, appealed against the refusal of discretionary leave to remain based on his marriage to a British citizen. An Immigration Judge dismissed his Article 8 claim, treating the appeal as turning on whether there were “insurmountable obstacles” to his wife relocating to Togo. On reconsideration, the Senior Immigration Judge held that the first decision contained no material error of law, relying in part on Omoregie [2009] IAR 120.

The appeal to the Court of Appeal concerned whether that approach misstated the Article 8 proportionality test. Additional grounds challenged the relocation assessment, the Secretary of State’s delay, and the treatment of Chikwamba v SSHD [2008] UKHL 40.

1. Appeal allowed. The Senior Immigration Judge should have held that the Immigration Judge’s decision was legally flawed, and the case was to be remitted for a further second reconsideration hearing.
2. Article 8 proportionality requires a balanced evaluation of what can reasonably be expected in the light of all the material facts. In a case involving possible family separation, the relevant question is broadly whether the spouse can reasonably be expected to follow the removed spouse to the country of removal. The inquiry is not confined to whether relocation presents “insurmountable obstacles”, and it does not end when such obstacles are absent.
3. The Immigration Judge referred to the correct approach in EB (Kosovo) [2008] UKHL 41, but stated that the appeal turned on the “insurmountable obstacles” issue and concluded the case by finding that no such obstacles existed. That indicated that the phrase had been treated as the critical legal touchstone and therefore as an impermissible Article 8 test. If the judge’s true approach was unclear, the decision was independently defective for want of legally sufficient reasons.
4. The Senior Immigration Judge failed to correct the error. Her reliance on Omoregie did not justify separating the consideration of insurmountable obstacles from proportionality. The applicable approach was stated in Huang [2007] 2 AC 167, EB (Kosovo) [2008] UKHL 41, and the subsequent Court of Appeal authorities, including EW (Uganda) [2009] EWCA Civ 5 and JO (Uganda) [2010] EWCA Civ 10.
5. The irrationality ground did not need to determine the appeal. The circumstances pointed in both directions, and it was not plain and obvious that no reasonable tribunal could conclude that the wife’s family life could reasonably be enjoyed in Togo. The delay ground added nothing, and Chikwamba was principally a matter for the fact-finding tribunal; this was not a case involving children.

• Court of Appeal (Civil Division): allowed the appeal against the reconsideration decision and ordered a further second reconsideration hearing.
• Asylum and Immigration Tribunal, Senior Immigration Judge Gleeson: on 16 January 2009 held that Immigration Judge Fisher’s decision was free from material error of law, so the appellant’s appeal remained dismissed.
• Immigration Judge Fisher: on 10 September 2008 dismissed the appeal against the refusal of discretionary leave to remain.