The Secretary of State for the Home Department v SC

A removal decision is in accordance with the law for article 8 purposes even where a contemporaneous policy or practice prevents its immediate enforcement. A suspension of enforced returns to a particular country does not, without more, prohibit refusal of leave or a decision to remove in principle.

A decision which conflicts with an established policy may be unlawful and incapable of article 8 justification, but that conclusion depends on the policy’s true scope. In a family case, lengthy lawful or tolerated residence, children’s formative education in the United Kingdom, and the absence of criminality or fraud may make removal disproportionate. Around eight years’ residence with a child will ordinarily carry substantial weight unless strong countervailing public-interest factors exist.

The Secretary of State appealed against Judge C Bennett’s decision of 30 June 2010. The judge dismissed the Zimbabwean claimant’s asylum appeal but allowed her human-rights appeal. He held that removal was not in accordance with the law because, at the hearing date, the Secretary of State was not enforcing compulsory returns to Zimbabwe.

The claimant had lived in the United Kingdom with her children since 2003. By the Upper Tribunal hearing, the eldest child had spent his formative school years in the United Kingdom and the younger children had been born there. The central issues were whether the moratorium rendered removal unlawful under article 8, and whether removal of the family was proportionate.

1. The Upper Tribunal held that the First-tier Tribunal made a material error of law. It set aside the article 8 decision because the suspension of enforced returns to Zimbabwe did not make a decision to remove the family in principle unlawful.

2. A decision may be contrary to law where it conflicts with an established policy or practice. However, the relevant Zimbabwe policy concerned the practical service of removal directions and enforced return. It did not prevent refusal of leave or a decision that a person should be removed. The October 2009 ministerial statement was consistent with that conclusion. Practical or political reasons why removal cannot immediately be enforced do not prevent an appeal being decided by reference to the consequences of hypothetical removal.

3. The Tribunal nevertheless re-made the human-rights decision in the family’s favour. More than eight years had elapsed since the claimant and eldest child arrived. The eldest child had received his formative education in the United Kingdom, the younger children had spent all their lives there, and there was no criminality or fraud. The long moratorium and the family’s prior leave reduced the public interest in removal. The children’s interest in continuity of education and upbringing was weighty.

4. Removal would therefore be disproportionate to the legitimate aim and was not necessary under article 8. The Secretary of State’s appeal was dismissed on the merits of the human-rights claim. The Secretary of State was directed to grant the claimant and her family leave to remain on human-rights grounds.

5. The asylum cross-appeal was treated as abandoned and withdrawn. The Tribunal added that it would in any event have refused permission to advance it out of time, since the earlier country guidance was no longer applicable.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed on the merits after the Tribunal set aside the First-tier Tribunal’s erroneous conclusion that removal was not in accordance with the law. Leave to remain on human-rights grounds was directed.

• First-tier Tribunal: Judge C Bennett, on 30 June 2010, dismissed the asylum appeal but allowed the human-rights appeal. He considered removal incompatible with article 8 because compulsory returns to Zimbabwe were not then being enforced.