UE (Nigeria) & Ors v Secretary of state for the Home department

Article 8 proportionality requires a broad but targeted balance between the individual’s private or family life and the legitimate aim pursued by removal. In immigration cases, the public interest is not a fixed weight. A person’s significant value to the UK community may be relevant under Article 8(2), because the loss of that benefit may reduce the weight of effective immigration control in the individual case. It is not a freestanding consideration or reward for good behaviour. Community activities may also strengthen the private-life claim under Article 8(1). Public value will rarely affect the outcome and normally must be very significant. A tribunal errs in law if it excludes the factor altogether where it might affect proportionality.

Six Nigerian appellants, comprising a husband, wife and their four adult children, appealed against an Asylum and Immigration Tribunal decision dated 13 February 2009. The Tribunal had dismissed their appeals against refusals of leave to remain and removal notices.

The appellants had spent periods in the United Kingdom without lawful immigration status. They relied on Article 8, principally private life, including their education, work, cultural activities and community contributions. The reconsidering Immigration Judge treated community activities as relevant only to the effect of removal on the individuals and excluded their value to the community as an independent public-interest consideration.

The central issue was whether the loss to the UK community of a person’s valuable contribution could be relevant to the Article 8(2) proportionality assessment.

1. Disposition. The appeal was allowed and the matter remitted to the Upper Tribunal. The Immigration Judge had excluded a potentially relevant factor from the proportionality assessment, and the Court could not be confident that its consideration would make no difference.
2. Nature of the Article 8 exercise. Proportionality requires a broad and informed judgment striking a fair balance between individual rights and community interests. The authorities, including R (Razgar) v SSHD [2004] UKHL 27, Huang v SSHD [2007] UKHL 11 and EB (Kosovo) v SSHD [2008] UKHL 41, did not support a narrow or prescriptive approach. However, the exercise remains targeted. The aim relied on for removal was effective immigration control, weighed against the strength of the individual’s private or family life and the severity of the interference.
3. Community value. A person’s value to the UK community may be relevant to the public-interest side of the balance because it may reduce the weight attached to immigration control in that individual case. It is not a freestanding factor or a reward for good conduct. Community activities may also be relevant directly to the strength of private life. The Article 8 exercise is not automatically co-extensive with the broader statutory discretion under the Immigration Act 1971 and the Immigration Rules.
4. Earlier authorities. Bakhtaur Singh [1986] 1 WLR 910 supported the conclusion that community value can be relevant, although it concerned the statutory deportation scheme. MA (Afghanistan) [2006] EWCA Civ 1440 was not binding and contained divided and qualified observations. The relevant passage in RU (Sri Lanka) [2008] EWCA Civ 753 was ambiguous. If it purported to exclude community value from the public-interest assessment, that issue had not been argued and the passage was not part of the ratio. The Court therefore remained free to adopt the broader approach. Its conclusion was consistent with the principle in Midlands Silicones v Scrutton [1962] AC 446 that obscurity impedes treatment of a passage as ratio.
5. Practical significance. Community value would normally affect the result only in relatively rare cases involving a very significant contribution. The principal public interest would ordinarily remain effective immigration control. The Court did not need to determine the separate argument about whether removal was in accordance with the law.

• Court of Appeal (Civil Division) — Appeal from the Tribunal’s reconsideration decision allowed; matter remitted to the Upper Tribunal: [2010] EWCA Civ 975.
• Asylum and Immigration Tribunal — On 13 February 2009, dismissed the appellants’ appeals against refusals of leave to remain and removal notices.
• Earlier reconsideration — An Immigration Judge had initially found no Article 8 breach; reconsideration was ordered because of errors of law and the need for fresh findings.