The decision

At Field House

JF (Article 8: inconsistency, family members) Angola [2005] UKAIT 00173

Heard: 30.11.2005
Signed: 01.12.2005
Sent out: 08.12.2005


John Freeman (a senior immigration judge)
Mr P Rogers JP and
Mrs E Morton


Secretary of State for the Home Department,

Miss J Bond (counsel instructed by Figueiredo & Bailey) for the appellant
Mr G Saunders for the respondent

This case is reported on the following points:
a) has what was said in Edore [2003] EWCA Civ 716 and DM (Croatia) CG* [2004] UKIAT 00024 about the effect of inconsistency as between family members survived Huang [2005] EWCA Civ 105? (see 3)
b) in what circumstances may such inconsistency make for such “truly exceptional” circumstances in the appellant’s private or family life as would render removal disproportionate to the legitimate purpose of immigration control?

This is a case where permission was given to appeal from a decision of an adjudicator (Mr PS Aujla), sitting at Hatton Cross on 22 September 2004, dismissing an asylum and human rights appeal by a citizen of Angola. Under the transitional provisions of the 2004 Act, the case proceeds as if it were a reconsideration following review by the Asylum and Immigration Tribunal; but only (see r. 62.7 of the 2005 Procedure Rules) on the grounds on which permission was given. These were limited to the question, not considered by the adjudicator in these terms, of whether the Secretary of State had acted so inconsistently in granting the appellant’s wife (as she now is) exceptional leave to remain, and deciding to remove him, as to make the decision under appeal contrary to law.
2. At the date of the adjudicator’s decision, and still by the time permission to appeal was granted (we do not know why this case has taken so long to come on for hearing), the law on this subject was set out in Edore and DM 04-24 (see head-note for full citations). The test was whether the decision to remove one member of a family (but not others) was within the range of permissible responses open to the Secretary of State: if it was, then the appellate authorities had no jurisdiction to consider for themselves whether or not it was proportional to the requirements of an individual case. It was said in both those decisions that the Secretary of State might in effect limit his own freedom of action by making decisions on family members or others, with which the decision under appeal appeared seriously inconsistent: the Court of Appeal in Edore made it clear that such cases were likely to be rare.
3. The test is now, as hardly needs to be said, in terms of Huang: whether there are such “truly exceptional” circumstances in the appellant’s private or family life as would make removal disproportionate to the legitimate purpose of immigration control; and this is to be decided by the appellate authorities for themselves. Both sides agreed that there was nothing specific said in Huang on the point about inconsistency between family members dealt with in Edore and DM 04-24. While we do not think Huang makes it wrong to consider that point as relevant to the “truly exceptional” test, we bear in mind is that the approach now is not so much whether the Secretary of State has (to put it in ordinary language) boxed himself in on the present case by a decision taken on another family member; but whether, in the view of the appellate authorities, the decision to let one stay and remove the other has led to a “truly exceptional” state of affairs, so that the result is disproportionate.
4. We turn now to the relevant facts of the present case, which are best shown chronologically:
03.1999 appellant and wife (Francisca) meet in Angola
03.2000 appellant and wife move in together
28.11.2002 wife arrives here and claims asylum
09.01.2003 wife granted four years’ exceptional leave to remain
02.03.2003 wife gives birth to daughter by appellant (Grace), later given exceptional leave to remain in line with her mother
23.04.2003 appellant arrives with niece (Jurelma, born about 1999), with whom he claims to have been on the run since January
28.04.2003 appellant claims asylum: niece treated as dependant
19.09.2003 appellant and Francisca marry
09.07.2004 Secretary of State decides to remove appellant
5. Miss Bond realistically conceded that there was nothing in the circumstances of this case capable of making them “truly exceptional”, apart from what seemed to be the inconsistent decisions to remove the appellant (and presumably, though nothing was said about her in the notice of decision) his niece; while his wife and their daughter are to be allowed to stay until at least 2007 (and, in the ordinary course of events, for good). At first sight, this is a remarkable state of affairs; and one which the adjudicator did not consider as a whole, which for his part Mr Saunders also conceded. What Mr Saunders did argue, however, was that the adjudicator’s findings on the possibility of the appellant’s wife returning to Angola with him had not been challenged before us, and remained valid; so that, if the adjudicator’s failure to consider the inconsistency point was an error of law, it was not a material one.
6. It has been well settled for some time now (at least since Amjad Mahmood [2002] Imm AR 229) that there is nothing disproportionate to the legitimate purpose of immigration control in requiring of spouses who wish to pursue their family life that either
a) they do so in their country of origin, where that is open to them; or
b) the spouse with no current leave to remain in this country return there to apply for a visa (where required) in the ordinary way.
In other words, there is nothing so “truly exceptional” in the state of affairs of one spouse having exceptional leave to remain here, and the other being subject to removal, as to make the removal decision disproportionate in itself. There is no evidence in this case that the wife, having accepted exceptional leave to remain only, cannot return to Angola; and the adjudicator would have been fully entitled to find that the appellant could go back there and get a visa himself, subject to the operation of Home Office policy on persons with exceptional leave to remain calling their family members: the appellant was refused permission to appeal against the adjudicator’s dismissal of his asylum/article 3 grounds.
7. There was a suggestion in the grounds of appeal that the adjudicator ought to have considered the effects of the decision under appeal on the two children involved, the daughter and niece. There are two answers to this, one jurisprudential, and one practical. To start with the first: the adjudicator was bound, as is now well settled, to consider the effect of the decision under appeal on the appellant, and not on anyone else, except in so far as that effect might reflect on him. His daughter was not and could not be an appellant in this appeal; and he had not taken the opportunity to add his niece as one: in fact he had not even mentioned her in his grounds of appeal to the adjudicator.
8. The practical answer is of course that both of these two little girls are likely to stay with their mother or aunt wherever she goes (unless Jurelma can somehow be re-united with her own mother, the appellant’s half-sister). Grace will not have started school yet, and Jurelma only just: there is no evidence whatsoever to suggest that there is any special reason, except being together with the appellant and his wife, for them to stay in this country.
9. It follows that there is nothing in this case but the apparent inconsistency of the decisions made, on the one hand on the appellant’s wife and daughter, and on the other on him and (presumably, though we have seen nothing in writing) his niece, to show anything disproportionate in requiring all of them to return to Angola to pursue their family life there. If they so wished, no doubt the appellant himself could go back and apply for a family reunion visa in due course himself; but the adjudicator did not base his decision on that, and neither shall we ours.
10. In our view the possibility of the courses of action set out at 6 a) and b) is not necessarily always a complete answer to a claim of disproportionality based on inconsistency. The terms in which we put that reflect what was said in Edore about the rarity of such cases. The only kind of case we can presently imagine succeeding on that basis is one where, for example, a husband and wife arrive together and the wife is given exceptional leave to remain, but the decision is made to remove the husband, for no apparent reason beyond the difference in sex. In our view the obvious irrationality of such a pair of decisions would be enough to make the circumstances “truly exceptional”.
11. We recognize that this appellant (and his wife) are in a stronger position than if they had met and had a child together, as well as marrying, all in this country. However, while they did not form their relationship at a time when this country’s immigration laws made their situation inherently precarious, both Mahmood and the now considerable volume of European jurisprudence make it clear that the country where family life is to be pursued is not a matter of free choice for persons with no independent right to be there.
12. Looking at the situation in practical terms, when the appellant’s wife arrived in this country, she was nearly six months pregnant, and on her own. We can well understand that, simply on that basis, a humane Home Office should have given her exceptional leave to remain before Grace was born. What has caused the difficulty in this case, as in so many others, is the rigidity of the decision-making system which led to that being granted, more or less indefeasibly, for so long as four years. We can equally well see that there was nothing on the facts of the appellant’s own case, once it was decided to refuse his asylum/article 3 claim, and even taking Jurelma into account, to suggest that he ought to have been given the same treatment on his own merits.
13. Since the adjudicator did not consider the inconsistency point, the question we have to decide is whether those two Home Office decisions, taken together, raised a case of disproportionality which could have materially affected his conclusions on article 8. We have considered the situation with some care, both because it is one likely to recur, so that whatever guidance we can give may be of some value, and because any decision where children are involved must be a question for particularly careful consideration. However, for the reasons we have given at 9-12, we take the view that there is a perfectly good, and obvious reason for the apparent inconsistency in this case, and nothing else to make removal disproportionate to the legitimate purpose of immigration control.
The original Tribunal did not make a material error of law and the original determination of the Appeal stands.

John Freeman
approved for electronic distribution