LM v The Secretary of State for the Home Department

In an Article 8 removal case involving a genuine marriage, proportionality is a fact-sensitive assessment. It is not a search for an insurmountable obstacle to family relocation. The central question is whether it is reasonable to expect the settled spouse to accompany the removed spouse.

Immigration control retained substantial weight where the marriage was entered into while the appellant had no leave and the failure to meet the Immigration Rules was substantial. Administrative delay may affect proportionality, but its effect depends on the facts. Removal was proportionate where the spouse could reasonably relocate and the appellant retained strong family connections in the country of return.

The appellant, a Jamaican national, overstayed after entering the United Kingdom as a visitor. Her application for leave to remain as the spouse of a settled British Overseas Territories Citizen did not meet paragraph 284 of the Immigration Rules.

An Immigration Judge dismissed her appeal. On reconsideration, Senior Immigration Judge Gill found material errors of law in the Article 8 assessment and directed that the claim be reconsidered on its merits. The reconsideration proceeded in the Upper Tribunal as an appeal under the transfer arrangements.

The principal issues were whether the marriage was genuine and subsisting, whether the husband could reasonably be expected to accompany the appellant to Jamaica, and whether removal would be proportionate under Article 8.

1. Appeal dismissed. The previous decision was set aside for error of law, but the Upper Tribunal remade the decision and dismissed the appellant’s Article 8 appeal.

2. The Tribunal found that the appellant and her husband had lived together as husband and wife since 2004. Their marriage was genuine and subsisting, and they intended to remain together. Removal would therefore interfere with their family life.

3. Applying the approach summarised in VW (Uganda) [2009] EWCA Civ 9 and EB (Kosovo) [2008] UKHL 41, the Tribunal held that proportionality did not turn on whether there were insurmountable obstacles to relocation. The material question was whether the husband could reasonably be expected to follow the appellant to Jamaica.

4. The medical evidence did not establish that the husband was unable to travel or that necessary medication would be unavailable in Jamaica. His established status and family connections in the United Kingdom were relevant, but he had no children there and no demonstrated deep or enduring ties which made relocation unreasonable. The appellant retained close connections with Jamaica, including three children there, one of whom was a minor. The Tribunal considered it likely, indeed probable, that the husband would accompany her.

5. The appellant had overstayed and married while knowing that she had no leave. Her failure to meet the Immigration Rules was substantial, not marginal. The Secretary of State's delay was relevant under EB (Kosovo), but did not materially reduce the weight of immigration control on these facts. Removal would disrupt the marriage but would also reunite the appellant with her children in Jamaica.

6. Balancing those matters, removal was proportionate to the legitimate aim of maintaining immigration control.

• Upper Tribunal (Immigration and Asylum Chamber): Set aside the previous decision for error of law and remade the decision by dismissing the appellant’s Article 8 appeal.
• Senior Immigration Judge Gill: On 29 December 2009, found material errors of law in the Immigration Judge’s Article 8 assessment and directed a merits reconsideration.
• Immigration Judge Alis: On 7 April 2009, dismissed the appeal under the Immigration Rules and on human-rights grounds.