Durrant v Secretary of State for the Home Department [2005] EWCA Civ 1522

Case No C5/2005/1796[2005] EWCA Civ 1522
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Monday, 14 November 2005
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE KEENE
Between
KARL ADOLPHUS DURRANTApplicant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MISS FRANCES WEBBER (instructed by Harrison Bundey, Leeds) appeared for Applicant for The Defendant did not attend and was not represented
J U D G M E N T

LORD JUSTICE KEENE:

[1]This is a renewed application for permission to appeal from the Asylum and Immigration Tribunal ("the AIT"), permission having been refused on the papers by Jonathan Parker LJ. This is primarily an Article 8 case. The applicant was born in Jamaica in 1943. He came to this country in 1960 to join his mother and stepfather and stayed here until 1983. He married here and had two sons in this country, was then divorced, remarried, and has further children here. He also worked while he was in the United Kingdom.[2]In 1983 he returned to Jamaica initially to care for his elderly mother and in due course to care for his stepfather. On three occasions during the next 19 years he visited the United Kingdom, entering each time as a visitor with six months' leave and a ban on employment here. The last of those occasions was in August 2002. While here, he sought indefinite leave to remain on the basis of his close connection with the United Kingdom. That was refused but an Immigration Judge allowed his appeal in December 2004 on a basis which the applicant does not seek to support, namely that of continuous lawful residence.[3]The Secretary of State sought to challenge the Immigration Judge's decision. The applicant in the meantime left the United Kingdom for Jamaica in December 2004, where he remained at the date of the AIT's decision in 2005. However, he lodged a respondent's notice seeking to uphold the Immigration Judge's decision on Article 8 grounds. That was the issue before the AIT: in other words, whether the Secretary of State's decision was a disproportionate interference with the applicant's right to a private life and a family life in the United Kingdom.[4]The AIT noted that by the time the applicant left this country in December 2004 he had been living here for two years and two months. However, there was no evidence, they said, that he was dependent in any way on his children or grandchildren here or vice versa. All his children were adults and lived independent lives. The Tribunal said:
"Although we accept that the Claimant may not have any family or relations in Jamaica and that all his children and grandchildren are in the United Kingdom, we are constrained from finding the existence of an established family life on the part of the Claimant in the United Kingdom, for the purposes of Article 8."
[5]The Tribunal did find that the applicant had a private life in this country. As for interference with his private life, the AIT stressed that he was not removed by the Secretary of State in December 2004; he went voluntarily. He, they said, was the sole basis of any interference.[6]On proportionality, the AIT treated his case as one of potential entry clearance, were he to apply. They set out in paragraph 31 various factors favourable to him: 23 years' residence in the United Kingdom in the past, his good character, and the residence of his children and grandchildren here, amongst other matters. On the other side of the scales there was no evidence of illness; he had spent 18 years outside the United Kingdom in Jamaica prior to August 2002 and he had also spent the first 17 years of his life in Jamaica. He was a Jamaican national who, said the AIT, must have been aware that he would lose his indefinite leave status in the United Kingdom if he remained outside for longer than the immigration rules allowed. His previous visits had been on visitor visas.[7]The AIT rejected a submission that he never lost the intention of returning to settle here. They found to the contrary at paragraph 33:
"When he arrived here in August 2002 he entered as visitor."
[8]Then the Tribunal made a number of comments, including one that the applicant had, in effect, attempted to circumvent immigration control by entering in 2002 as a visitor. They went on to say at paragraph 35 of their decision:
"We have balanced the Claimant's personal circumstances against the need to maintain a fair and effective immigration control in the United Kingdom. We have borne in mind the fact that it is still open to the Claimant to make an application for entry clearance. We should mention that the Claimant has our sympathy but he has only himself to blame, firstly, for not entering the United Kingdom in the first place after obtaining the appropriate entry clearance for settlement and, secondly, and most importantly, by not remaining in the United Kingdom to pursue his Article 8 claim from within the jurisdiction for in that event he might have had a stronger claim."
The Tribunal concluded that the interference with his private life was proportionate.[9]Miss Webber this morning on behalf of the applicant criticises that reasoning of the Tribunal. She makes a number of points. First she contends that the Tribunal erred in law in finding no family life in this country. The mere absence of "dependency", she says, does not constrain the decision-maker from finding family life. Secondly, on private life: it is argued that the Tribunal should have considered whether the Secretary of State's decision under appeal would give rise to an interference with the applicant's private life. The Tribunal appears to have approached it on a rather different basis. Thirdly, on proportionality, the statement of the AIT that the applicant in effect attempted to circumvent immigration control is roundly criticised. Miss Webber argues that there was unchallenged evidence before the adjudicator from the applicant that when he arrived in August 2002 the immigration officers debated whether to grant indefinite leave to remain, but it was in the end decided to grant him leave to enter as a visitor and for him to apply from within the United Kingdom. The adjudicator, she submits, seems to have accepted that.[10]It is contended that this factual error of the AIT was determinative of proportionality. In that respect reliance is placed on what was said by the AIT when permission to appeal to this court was refused by it:
"If the version of the facts set out at paragraph 5 of the grounds were correct, then arguably the basis on which the appellant was re-admitted to this country might have amounted to such 'truly exceptional circumstances' (see Huang [2005] EWCA 105) as would make removal disproportionate to the legitimate purpose of immigration control under article 8 of the Human Rights Convention. However, it does accord with the facts found by the Tribunal at paragraph 33, on which they were entitled to find that there were not."
[11]I propose to deal with the private life issues first. I am troubled by the emphasis placed by the AIT when dealing with proportionality on their statement that the applicant had, in effect, sought to circumvent immigration control on arrival in August 2002 (see paragraph 34 of the decision). The AIT's earlier statement in paragraph 33 that: "At no time did he say to the immigration officer that he was returning to settle in the United Kingdom so that the immigration officer could consider whether or not to grant him indefinite leave" seems to conflict with the evidence before the adjudicator, and nothing in the papers seems to indicate that there was any evidence before the Tribunal to support that particular finding. The AIT does appear to have attached weight to this factor (see the end of paragraph 34).[12]Whether it would have led to a different decision on proportionality had the AIT approached this aspect differently is difficult to say, but I note the comments by Mr Freeman in his refusal of permission to appeal to this court, the comment which I have just quoted. He was assuming that there was evidence for the AIT's finding about what happened on arrival in August 2002. If that is wrong, then the earlier part of those comments suggests that the decision might have been different.[13]Moreover, the Tribunal refers to the need for the applicant to have obtained entry clearance as a returning resident. Miss Weber makes the point this morning that because of Rules 18 and 19 of the Immigration Rules, particularly Rule 19, the applicant did not need entry clearance and that the Tribunal went wrong on this particular aspect. There was nothing, she says, that occurred during the hearing to indicate that the AIT were troubled by this aspect of the case. There seems to me to be some arguable force in that point.[14]As for the AIT's approach to the issue of interference with private life (in paragraph 27 of the decision) it might be argued that the Tribunal was asking itself the wrong question by saying in the first sentence there:
"The next issue is whether or not the Claimant's departure from the United Kingdom in December 2004 constituted interference with his established private life in the United Kingdom."
It could be argued, says Miss Webber, that though the Tribunal was entitled to take into account events since the Secretary of State's decision (see section 85(4) of the 2002 Act), the appeal before the Tribunal was against that decision, and that the proper question was whether that decision would interfere with the applicant's private life.[15]I find this a less persuasive point since the AIT also found that the applicant's private life in the United Kingdom had ceased on his departure in December 2004. But I would not shut out this point, given that I propose to grant permission to appeal on the grounds already referred to.[16]My conclusion is the same on the family life issue. Whether family life exists or not is a question of fact for the decision-maker, but there are conflicting decisions in Strasbourg about whether, in the case of adults, dependency needs to be shown for family life to exist between them (see the Commission's decision in Pathan v United Kingdom (application 26292-95) dated 16 January 1996 (unreported) and the decisions cited in Clayton and Tomlinson 1st edition at paragraphs 13.104 and 13.105). The AIT here seems to have seen the lack of dependency as "constraining" it to decide as it did. It seems to me that it is just about arguable that it erred in law in that approach and should have been prepared to approach the factual issue on a wider and less constrained basis.[17]I propose, therefore, to grant permission to appeal in this case with no restriction on the grounds which may be advanced, although as I have indicated some of them seem to me to have less prospect of success than others. (Application granted; to be heard by a three-judge court).