FK & OK (Botswana) v Secretary of State for the Home Department [2013] EWCA Civ 238

Case No C5/2012/0670[2013] EWCA Civ 238
IN THE COURT OF APPEAL (CIVIL DIVISION)
On appeal from the Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge Hanson
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/03/2013
Before
LORD JUSTICE ELIASLORD JUSTICE DAVISSIR STANLEY BURNTON
Between
FK & OK (BOTSWANA)AppellantsSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Abid MAHMOOD (instructed by Wilson LLP) for A ppellantSusan CHAN (instructed by Treasury Solicitor) for RespondentHearing Hearing date: 20 th March 2013
JudgmentSir Stanley Burnton:Introduction
[1]This is an appeal against the determination of Upper Tribunal Judge Hanson, sitting in the Upper Tribunal (Immigration and Asylum Chamber), dismissing the appellants’ appeals against the Secretary of State’s rejection of their asylum and human rights claims to remain in this country.

The background

[2]Both appellants are nationals of Botswana. The first appellant claimed asylum and humanitarian protection on the ground that she feared violence at the hands of her husband if she were returned to Botswana. She also claimed that her removal would infringe her rights under article 8 of the European Convention on Human Rights. The second appellant is her daughter. She was born in 1990, and is 22 years old. The first appellant came to this country in 2003 as a visitor, and was granted leave to remain until March 2004. Her leave was then extended until 31 May 2005. On the expiration of her leave she made a further application to remain as a student.[3]The second appellant came to this country in August 2004, aged 13, and was granted leave to enter for 6 months as a visitor. In April 2005 she was granted leave to remain until May 2005 as the dependent of her mother. Further applications to remain were refused in September 2005 on the ground that the Secretary of State was not satisfied that the first appellant had not worked without the necessary consent. The first appellant did not appeal against that decision, but remained in this country with her daughter, who attended school here. In September 2010 the first appellant claimed asylum. Her claim was refused by the Secretary of State in October 2010. Thus between September 2005 and September 2010 both appellants remained in this country without leave to remain.[4]The appellants’ claims for asylum and humanitarian protection on the basis of the fear of violence from the first appellant’s husband were dismissed by both the First-tier Tribunal and the Upper Tribunal, essentially on the grounds of the availability of adequate protection from the government authorities in Botswana and their ability to relocate there to a sufficiently safe location, and permission to appeal against that finding was refused by both the Upper Tribunal and the Court of Appeal. This appeal is confined to the appellants’ claims under article 8 of the European Convention on Human Rights. The first appellant’s article 8 claim, if it stood alone, was rejected for reasons that have not been the subject of appeal. In giving permission to appeal to the second appellant in respect of her article 8 claim Sir Richard Buxton stated that if the second appellant’s article 8 appeal was successful, with the result that she remained in this country, her mother’s article 8 claim would have to be considered. In essence, therefore, both appellants’ appeals turn on the second appellant’s article 8 appeal, and it is her case that I shall now consider.

The facts

[5]The Upper Tribunal Judge found that the appellants had family life together recognised by article 8, and that their private life was also engaged. It followed that their removal required to be justified under article 8.2. In paragraphs 128 and 129 of his determination, he summarised the facts relied upon by the second appellant in support of her claim. She had been in the UK for 7 years, during which she had been a minor for 5 years. She had a strong private life here, having been educated here, and she had a deferred offer of a place at university. She undertook voluntary work in this country, and was a very active member of her church, to which her contribution had been recognised by letters and witness statements submitted in her support. If allowed to remain here, her contribution to the church locally and within wider society could be expanded. She and her mother had shown themselves to be law-abiding.[6]The Upper Tribunal Judge took into account the fact that the private life of the appellants could not be replicated in Botswana: see paragraph 134 of his determination.[7]In making his assessment of the proportionality of removal, the Upper Tribunal

Judge said, at paragraphs 143 to 145 of his determination:

“143. Opelo entered the United Kingdom on 15th August 2004 when she was thirteen years of age. She therefore spent the first thirteen years of her life growing up in Botswana. She only had lawful leave for a period of six months s a visitor, which would have expired in January 2005, and when her leave was extended in April 2005 until May 2005 as a dependant of her mother. Thereafter all subsequent applications were refused and so she has been in the United Kingdom as an overstayer without lawful leave since this time. I accept that she attended school in the United Kingdom and has integrated into the United Kingdom and that she is now twenty-one years of age. During her seven years in the United Kingdom she would have acquired traits identified with the life of an individual who has been educated and developed as a young adult within this country all of which I have taken into account. 144. I find it has not been shown however that she is unable to re-adapt to life back in her home state or that the effects of removing her would make the decision disproportionate. 145. Even though both Florence and Opelo come across as very nice individuals who have genuine desire to remain in the United Kingdom, when I have undertaken the balancing act required as part of the proportionality assessment placing on one side the legitimate aim relied upon by the Secretary of State and on the other side the right of both appellants, I find that the respondent has discharged the burden of proof upon her to the required standard to show that the decision is proportionate. I make this finding having great sympathy for both appellants and only after having given very detailed consideration to all relevant issues.”
[8]He therefore dismissed the article 8 claims.

The appellants’ contentions and my conclusions

[9]The first, and perhaps principal, contention made by Mr Mahmood on behalf of the appellants was that the removal of the appellants could not be justified under article 8.2 because it was not pursuant to any legitimate aim specified in that provision. I have to say that it was not entirely clear whether he was submitting that the maintenance of immigration control, in a case in which there was no fear of violence or other crime on the part of the individual in question, can never be justified under article 8.2, because such control is not specified in that paragraph, or that the removal of these particular law-abiding individuals cannot be so justified. He relied on the judgment of the European Court of Human Rights in Golder v UK (1975) 1 EHRR 524, at paragraph 44, in which the Court held that there are no implied limitations on article 8 rights: the only lawful limitations are those specified in paragraph 2, namely those necessary in a democratic society “in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.[10]I would reject this submission for three reasons. The first is that this point was not taken before either the First-tier Tribunal or the Upper Tribunal. Immigration

Judge Hanson recorded in paragraph 123 of his determination:

“123. No issue was taken before me regarding whether the interference was in accordance with the law, as I find it is, and the legitimate aim relied upon by the respondent is the necessity of the appellants’ removals from the United Kingdom for the economic well-being of the country and the right of the respondent to have valid and workable immigration policies and controls for such a purpose. 124. It was accepted by the advocates that the real question for the Tribunal was whether the interference was proportionate to the legitimate public end sought to be achieved.”
Mr Mahmood did not suggest that these paragraphs do not accurately record the appellants’ case before the Judge.[11]The second reason is that the maintenance of immigration control is not an aim that is implied for the purposes of article 8.2. Its maintenance is necessary in order to preserve or to foster the economic well-being of the country, in order to protect health and morals, and for the protection of the rights and freedoms of others. If there were no immigration control, enormous numbers of persons would be able to enter this country, and would be entitled to claim social security benefits, the benefits of the National Health Service, to be housed (or to compete for housing with those in this country) and to compete for employment with those already here. Their children would be entitled to be educated at the taxpayers’ expense (as was the second appellant). All such matters (and I do not suggest that they are the only matters) go to the economic well-being of the country. That the individuals concerned in the present case are law-abiding (other than in respect of immigration controls) does not detract from the fact that the maintenance of a generally applicable immigration policy is, albeit indirectly, a legitimate aim for the purposes of article 8.2.[12]The third reason for rejecting this submission is that it is inconsistent with binding authority. For present purposes, it is sufficient to refer to R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 [2004] 2 AC 368 and to Huang v Secretary of State for the Home Department [2007] UKHL 11 [2007] 2 AC 167. in Razgar, Lord Bingham of Cornhill cited the judgment of the European Court of Human Rights in D v UK (1997) 24 EHRR 423, in which the Court said, at paragraph 48, in relation to the deportation of the appellant to Algeria, that:
“such interference may be regarded as complying with the requirements of article 8, namely as a measure ‘in accordance with the law’, pursuing the aims of the protection of the economic well-being of the country and the prevention of disorder and crime, as well as being ‘necessary in a democratic society’ for those aims.”
The italics are mine. In Huang, Lord Bingham said, at paragraph 18, in relation to the article 8 claim in that case:
“… The Strasbourg court has repeatedly recognised the general right of states to control the entry and residence of non-nationals, and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where they prefer to live. In most cases where the applicants complain of a violation of their article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of article 8, the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved.”
[13]The second contention of Mr Mahmood was that the Upper Tribunal Judge had erred in law in his assessment of proportionality. However, he was unable to identify any legal error, or any material fact that had been omitted by the Judge in making his assessment, or any factual error on his part. In my view the judge’s Article 8 analysis was exemplary; he identified the principles of law clearly and set out in some detail all the relevant matters pointing in favour of the second appellant’s case. It is impossible to see a basis on which this Court could interfere with the Judge’s evaluation. Miss Chan described this ground as a contention that the Judge’s decision was perverse. I agree that this is what Mr Mahmood had to establish. He could not do so. This was plainly a decision which was properly open to the judge, and there was no error of law.[14]For these reasons, I would dismiss the second appellant’s appeal. It follows that the first appellant’s appeal, which is dependent on it, must also be dismissed.

Lord Justice Davis:

[15]I agree with the judgment of Sir Stanley Burnton.

Lord Justice Elias:

[16]I also agree.

Cited in 2 later judgments