| IMMIGRATION — Immigration control — Leave to enter or remain — Separation of family likely result of application of lawful immigration control — Whether disproportionate interference with family life — Whether necessary for applicant to show serious obstacles or difficulties going beyond matters of choice or convenience — Human Rights Act 1998, Sch 1, Pt I, art 8
VW (Uganda) v Secretary of State for the Home Department; AB (Somalia) v Same [2009] EWCA Civ 5; [2009] WLR (D) 7
CA: Mummery, Sedley and Wilson LJJ: 16 January 2009
If removal from, or refusal of admission to, the United Kingdom pursuant to lawful immigration controls were to be held a disproportionate interference with private or family life under art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms it would be necessary to show more than mere hardship, mere difficulty or mere obstacle: there was a seriousness test which required obstacles or difficulties to go beyond matters of choice or inconvenience.
The Court of Appeal so stated in a handed down judgment allowing the appeal of VW in the first appeal and dismissing the appeal of AB in the second appeal. In the first appeal the applicant had illegally entered the United Kingdom from Uganda just before she was 17, been refused asylum but granted exceptional leave to remain until her 18th birthday. She had later given birth to a girl whose father was a British citizen of Nigerian ethnicity who had lived in the United Kingdom since 1992; the daughter was therefore a British citizen. The immigration judge had dismissed her appeal against the Home Secretary’s refusal to grant her further leave to remain on both asylum and human rights grounds and the decision had been affirmed by the Asylum and Immigration Tribunal on the basis there had been no material error of law. In the second appeal the applicant and her six children aged between 7 and 19 had originally fled from Somalia and lived in Ethiopia illegally in a strained circumstances. The applicant’s husband had been granted indefinite leave to remain in the United Kingdom and sponsored the applicant’s application to enter the United Kingdom which had subsequently been refused. Immigration Judge Mather had dismissed her appeal from the decision of the entry clearance officer in Ethiopia on the grounds that there were no “insurmountable obstacles or serious difficulties” preventing the applicant, the sponsor and their children from maintaining their family life in either Ethiopia or Somalia.
SEDLEY LJ said that in EB (Kosovo) v Secretary of State for the Home Department [2008] 3 WLR 178 Lord Bingham of Cornhill had said, with regard to a claim that deportation would violate art 8, that it would rarely be proportionate to uphold an order for removal of a spouse if there were a close and genuine bond with the other spouse and that spouse could not reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order were to sever a genuine and subsisting relationship between parent and child. As the tribunal had held in the first appeal, if removal were to be held disproportionate it was necessary to show more than mere hardship, mere difficulty or mere obstacle. There was a seriousness test which required obstacles or difficulties to go beyond matters of choice or inconvenience. The question in any one case would be whether the hardship consequent on removal would go far enough beyond that baseline to make removal a disproportionate use of lawful immigration controls, which in turn would depend, inter alia, on the severity of the interference with private and family life. The immigration judge’s decision in the first appeal had been profoundly flawed and had contained no adequate reasoning to support a finding that it was reasonable to expect the whole family to go with the applicant to Uganda. It was uncontestably unreasonable to expect the child’s father, who had no connection with Uganda, to go and live there as the price of keeping his family intact. The predictable reality was that if the applicant were deported he would stay. There was no reason to reject the social worker’s view that if that happened the child would be separated from her mother in her own interests, but with possibly damaging consequences for her development, and grief for her mother. Whatever resolution were arrived at it would not be in the child’s best interests. The enforced break-up of the was not justified by the legitimate demands of immigration control. The applicant was a failed asylum-seeker but no more; her partner was her child’s father and joint carer and this country was his home. Above all consideration was owed to the child who was a British citizen and would be the principal sufferer if her mother were removed. There was only one right answer. In the second appeal the immigration judge had not been persuaded by the evidence that there were insurmountable obstacles or serious difficulties to the applicant, sponsor, and their family establishing a family life in Ethiopia or Somalia, or that the applicant had shown that there would be anything more than a degree of hardship in establishing family life in either country. That finding did not depend or turn on an insurmountable obstacle test. If there had been an insurmountable obstacle to the sponsor’s rejoining the applicant and their children in Ethiopia the appeal under art 8 would presumably have been allowed. If there had been serious difficulties there would have been a difficult balance to be struck. But since, as the immigration judge had affirmatively found, there would be no more than “a degree of hardship” in establishing family life in either Ethiopia or Somalia, that would necessarily have been a humanitarian claim which did not outweigh the requirements of lawful immigration control.
WILSON and MUMMERY LLJ agreed. |
