TK (Burundi) v Secretary of State for the Home Department [2008] EWCA Civ 722

Case No C5/2007/2770[2008] EWCA Civ 722
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. HX/14596/2003]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 20 th May 2008
Before
LORD JUSTICE MAURICE KAY
Between
TK (BURUNDI)AppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPELLANT APPEARED IN PERSON for in person for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
Judgment
[1]This is a renewed application for permission to appeal, permission having been refused on the papers by Richards LJ. The decision which the applicant seeks to appeal is that of Immigration Judge Scobbie, dated 14 May 2007. The matter has quite a long history. The applicant claimed asylum in this country in 1996. That was refused in 2002, and on 31 January 2005 an adjudicator dismissed his asylum appeal. However, that same adjudicator allowed an appeal under Article 8 of the ECHR.[2]The decision of Immigration Judge Scobbie was upon a reconsideration. The Secretary of State had successfully applied for a reconsideration of the Article 8 decision, it having been found that there was an error of law on the part of the adjudicator. The decision of Immigration Judge Scobbie on reconsideration was to dismiss the applicant’s Article 8 case, and it is that dismissal that he now seeks to raise in this court.[3]He advances five grounds of appeal. I can deal with the first two of them very quickly. The first was to the effect that there had not been a material error of law in the original decision of the adjudicator. In my judgment that ground of appeal is unarguable for the reason give by Richards LJ in his written reasons. The second ground of appeal is to the effect that the immigration judge erred in law by not according appropriate significance to the effect of removal on the applicant’s patients. Again, Richards LJ explained why the effect on the patients is not an Article 8 matter. The indirect effect of that on the applicant is relevant, but the immigration judge did take that into account. Accordingly, there is nothing in that ground of appeal.[4]However, I have a concern about the third proposed ground of appeal. I should say a little more about the factual background. The applicant has been in this country for some twelve years. In 2000 he began working for Sutton and Merton NHS Health Trust, with appropriate permission. He started as a support worker but qualified as a registered mental health nurse. In November 2006 he became a Ward Home Manager/Charge Nurse with Surrey and Borders NHS Partnership. He works with elderly people who have acute mental health problems and physical disabilities. There is no doubt that his work record is creditable. This was accepted by the immigration judge; it is further confirmed by a letter written by the applicant’s superior a week or so ago. He has now obtained a level of being a nurse mentor.[5]As the years have gone by, the applicant has fathered two daughters. The first was born on 11 February 2004. However, the applicant’s relationship with the mother of that child has not flourished. His evidence to the immigration judge was that he has weekly access to that daughter, sometimes more often than that, and that he contributes £150 per month to a bank account for her. The mother of that child has indefinite leave to remain in the United Kingdom.[6]Following the break-up of that relationship, the applicant began a relationship with a woman who is in court today and whom he describes as his fiancée. She gave birth to a daughter on 16 March 2007. The adjudicator said:
“He does not stay with her or her mother at present, although they will shortly move in with him.”
The immigration judge observed that the evidence from the applicant was that he and that woman hoped to get engaged shortly, and that he contributed financially to that daughter’s upkeep.[7]Plainly these were all relevant matters in context of the Article 8 claim. What was said on behalf of the Secretary of State about that was by way of submission that the strength of family life, as presented by the appellant, was not as developed as he said. The immigration

judge said:

“In this connection, the absence of appearance or any written statements from either of the mothers of his children counted against him. Further, there was the absence of any evidence that the Appellant made financial contributions in respect of either of his daughters. Further, it was in the Respondent’s view open to the Appellant to return to Burundi and apply to come back to the United Kingdom in accordance with the Immigration Rules.”
[8]The immigration judge then proceeded to go through the five questions set out in R (Razgar) v SSHD [2004] UKHL 27 before observing “that there were factors which I felt counted against him”. Once again he referred to the “complete absence of any evidence from the mothers of the two children.” The immigration judge was dismissive of the applicant’s proffered explanation as to those absences. Quite simply, he appears to have rejected evidence of the strength of the family connection and the financial contribution because it was uncorroborated. He referred to “the total absence of any independent evidence relative to the money which he says he puts towards their keep. There is absolutely nothing about this apart from his own word”. The immigration judge thought it inconceivable that competent legal representatives would not have filled that gap if they were able to do so. All this led to the conclusion that “the appellant’s family life was not as strong as he indicated”. When it came to the balancing exercise, the scales tipped in favour of the Secretary of State.[9]In my judgment it is arguable that that rejection of the applicant’s account, by reason of its being uncorroborated, was legally erroneous. It is a difficult argument and ultimately it may not succeed, but I consider that it would not be appropriate to refuse permission to appeal at this stage.[10]The original refusal letter issued by the Secretary of State was in 2001. So far as I can see, there was no document emanating from the Secretary of State prior to the hearing before Immigration Judge Scobbie which put the relationships between the applicant and his daughters and his financial contributions in issue. It is something which appears to have arisen at the hearing, although undoubtedly the presenting officer at the hearing did submit that the applicant’s strength of family life was being exaggerated and did refer to the absence of evidence from the mothers, and the absence of evidence of a corroborating nature relating to financial contribution. The question which seems to me to merit argument is whether, in those circumstances, it was an error of law to reject the applicant’s uncontradicted account by reason of absence of evidence. I observe that the second daughter had been born only a matter of four weeks before the hearing before Immigration Judge Scobbie. Accordingly, I propose to grant permission to appeal by reference to that ground, which is the one numbered 3 in Richards LJ reasons for refusing permission to appeal.[11]The fourth ground relates to whether or not the immigration judge properly took into account the Strasbourg jurisprudence. It cannot be said that this is a strong ground of appeal, but it may be appropriate to permit it to be argued in conjunction with the third ground, and so I shall permit that to go forward as well.[12]I do not consider that there was any misdirection in relation to proportionality. The immigration judge worked his way through the Razgar questions and it seems to me that, in so doing, he did not fall into legal error. Accordingly, I refuse permission to appeal on all grounds save the ones I have referred to as 3 and 4. I grant permission in relation to them.[13]The matter will be listed before a three-judge court; one of the judges may be a High Court judge, and I estimate the time required as being two hours. The applicant has represented himself today. Although he is plainly an intelligent and qualified man, I remain of the view which I expressed on a previous occasion that he would benefit from legal representation. He has explained to me the difficulties about obtaining that and I accept this explanation; but if, one way or another, he can obtain representation I am sure that that will be in his interests.

Order

Application granted in part