The Secretary of State for the Home Department v Yuan Yuan Wang

The proportionality of removal under Article 8 is a fact-sensitive assessment for the tribunal. The fact that a person can return to their country of nationality and resume life there does not, by itself, establish that removal is proportionate.

When deciding an out-of-time permission application, a judge must consider the material on file, the deemed-service rule and any evidence rebutting it, the length of delay and whether the explanation covers it. The discretionary decision must be supported by brief reasons. Those requirements apply equally to an individual and to the Secretary of State.

The Secretary of State appealed from a First-tier Tribunal decision allowing Yuan Yuan Wang and her husband’s appeals on Article 8 grounds. The First-tier Tribunal had found that Wang could not satisfy the Immigration Rules or the long-residence provision, but held that removal would be disproportionate because of the couple’s established private life in the United Kingdom.

The Secretary of State argued that the proportionality reasoning was inadequate. Her application for permission to appeal had been made nearly eight months late. The Upper Tribunal therefore also considered the proper approach to an application to extend time, although it did not decide whether it had jurisdiction to reverse the extension granted in this case.

1. Appeal dismissed. The First-tier Tribunal had considered both the favourable and adverse factors when assessing proportionality under Article 8. Its conclusion was neither irrational nor otherwise defective in public-law terms.

2. The ability of the claimants to return to Malaysia, their transferable skills, and their ability to resume life there did not of themselves make removal proportionate. Proportionality remained an evaluative assessment for the First-tier Tribunal. The Secretary of State’s grounds disclosed no legal error in that assessment.

3. Although unnecessary to determine the challenge to the extension of time, the Tribunal gave procedural guidance. A judge considering an out-of-time permission application must examine all available material, including the file, the date of despatch and any evidence capable of rebutting the presumption of service under Asylum and Immigration Tribunal (Procedure) Rules 2005, rule 55(5).

4. The judge must also consider the full length of the delay and whether the evidence or explanation accounts for all of it. The exercise of discretion should normally be supported by brief reasons. The same approach applies whether the applicant is the individual or the government.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed.
• First-tier Tribunal: Judge Y J Jones dismissed the claimants’ case under the Immigration Rules but allowed their appeals under Article 8 on proportionality grounds.