FK & OK (Botswana) v Secretary of State for the Home Department

For the purposes of article 8.2 of the European Convention on Human Rights, maintaining immigration control is a legitimate aim even where the individuals concerned are otherwise law-abiding. The aim is connected, albeit indirectly, with the economic well-being of the country, protection of health and morals, and protection of the rights and freedoms of others. Once Article 8 is engaged, the central question is proportionality. An appellate court should not interfere with a tribunal’s assessment absent an error of law, material omission, factual error, or a decision that was not properly open to it.

The appellants, nationals of Botswana, challenged their removal under article 8 of the European Convention on Human Rights. The first appellant had claimed asylum and humanitarian protection based on fear of violence from her husband. The second appellant had arrived in the United Kingdom aged 13, attended school here, and relied principally on her private life. The First-tier Tribunal and Upper Tribunal dismissed the protection claims and rejected the article 8 claims. The appeal to the Court of Appeal was confined to article 8. The central issues were whether immigration control was a legitimate aim under article 8.2 and whether the Upper Tribunal had erred in its proportionality assessment.

1. Disposition. The Court of Appeal dismissed the second appellant’s appeal. The first appellant’s appeal, which depended on it, was also dismissed.
2. Legitimate aim. Sir Stanley Burnton rejected the contention that removal could not pursue a legitimate aim under article 8.2. The point had not been taken before the First-tier Tribunal or the Upper Tribunal. In any event, maintaining immigration control is not an implied limitation. It is a legitimate aim because immigration control is necessary, albeit indirectly, to preserve or foster the economic well-being of the country, protect health and morals, and protect the rights and freedoms of others. The appellants’ otherwise law-abiding conduct did not alter that conclusion.
3. Authority and proportionality. The conclusion was consistent with R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, which referred to D v UK (1997) 24 EHRR 423, and with Huang v Secretary of State for the Home Department [2007] UKHL 11. States may control the entry and residence of non-nationals. Where an interference is lawful, pursues a legitimate object, and is sufficiently serious to engage article 8, the crucial question is whether it is proportionate to the legitimate end.
4. Appellate review. The appellants identified no error of law, material omission, or factual error in the Upper Tribunal’s assessment. Its article 8 analysis was exemplary, and its conclusion was plainly open to it. There was therefore no basis for appellate intervention.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 238, dismissed the appeals concerning article 8.
2. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Hanson dismissed the appellants’ appeals against the Secretary of State’s refusal of their asylum and human rights claims.