CG v The Secretary of State for the Home Department

A suspension of enforced removals does not, without more, make an immigration decision to remove unlawful. A claimant may have grounds to challenge removal directions that are issued or enforced contrary to a current policy, but no such unlawfulness arises where there is no real likelihood of that occurring.

In assessing Article 8, the Tribunal must consider the claimant’s position in the proposed country of return. It need not decide lawfulness or proportionality on the false premise that compulsory removal will occur contrary to an extant suspension policy. Interference with private life must also be sufficiently grave to engage Article 8.

The appellant, a Zimbabwean national who had remained in the United Kingdom after entering as a visitor in 1999, appealed against the refusal of her asylum and human-rights claim. The Immigration Judge rejected her account, found that she could return voluntarily in safety, and rejected her claims under Article 3 and family life.

The judge nevertheless allowed the appeal under Article 8. He reasoned that compulsory removal during the respondent’s suspension of enforced removals to Zimbabwe would be unlawful and disproportionate. The respondent challenged that conclusion. The Upper Tribunal considered whether the suspension rendered the decision to remove unlawful, and whether removal engaged the appellant’s private life.

1. The appeal was dismissed. The Immigration Judge had materially erred in allowing the appeal on the assumption that the appellant would be compulsorily removed while enforced removals to Zimbabwe were suspended.

2. An interference with private life must be sufficiently grave to engage Article 8. The Immigration Judge’s reasoning on engagement was unduly brief, since it treated compulsory travel alone as necessarily sufficient. The error was not material, however. Given the appellant’s lengthy residence and activities in the United Kingdom, removal did interfere with private life sufficiently to engage Article 8.

3. The general principle that a decision which fails to apply a declared policy may be unlawful did not assist the appellant. A current policy or practice suspending enforced removals did not make the underlying decision to remove unlawful. There was no suggestion that removal directions had been issued, enforced, or were likely to be enforced contrary to the policy.

4. The Tribunal must assess the consequences of removal by considering the appellant’s position in the country of return. That hypothetical exercise does not require it to assume a compulsory removal which will not in fact occur. The Immigration Judge wrongly equated the suspension of removals with a failure to follow a published policy.

5. The Immigration Judge had found that the appellant could safely return voluntarily and that, apart from the erroneous hypothesis, any interference with private life pursued a legitimate aim and was proportionate. Those findings remained open to him. The Upper Tribunal therefore substituted a decision dismissing the appeal on asylum, humanitarian-protection and human-rights grounds.

• Upper Tribunal (Immigration and Asylum Chamber): found a material error of law in the Immigration Judge’s Article 8 decision and substituted a decision dismissing the appeal.

• Immigration Judge: rejected the asylum and Article 3 claims but allowed the appeal under Article 8 on the basis that compulsory removal during the suspension of enforced removals would be unlawful and disproportionate.