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Clayton: Textbook on Immigration & Asylum Law 3e

Chapter 4

1. How would you have decided the case of N?

This question does not invite only a personal opinion. N has been chosen because it raises contentious and difficult issues, and treats the economic interests of the state, at least implicitly, as relevant in deciding an Article 3 claim.

Begin by explaining the facts of N and the ratio of the House of Lords decision. Read the case. It is easy to find at http://www.publications.parliament.uk/pa/ld/ldjudgmt.htm. Consider your reaction to the case. Do you have a moral or emotional response to the decision? Notice this but do not as yet treat it as the answer. While N, as a decision of the House of Lords, is binding in UK law, if you are asked how you would have decided it you are invited to examine whether you think it is right in law. You need to consider:

A. What kind of experience is covered by Article 3 - inhuman and degrading treatment or punishment. How has case law treated these concepts and how does what N faced in Uganda fit with this or not?
B. By what principle can the UK government be held responsible for what happens to N in Uganda?
C. What special factors are there to consider in a health care case? Are there any in actual fact? For instance, is it legitimate to consider the economic impact on the UK (a) of N's remaining, (b) of others in her position remaining in the UK.
D. How similar is N to D v UK? Note the similarities and differences. Does this lead you to conclude that N should follow D or be distinguished from it?
E. Note that N has now been decided by the ECtHR. Read the majority and minority opinions (Application no. 26565/05, Judgment given 27th May 2008, http://www.echr.coe.int) and see if these help your own thinking.

2. Does it or should it make any difference to rights under Article 8 whether family life has been formed while waiting for an asylum claim to be processed or while spending time in the UK as, say, a student?

On the face of it the answer to this is a simple 'no'. Either status is lawful, the quality of family life and strength of ties is not affected by the reason that the person is in the UK, or at least not in a predictable way that is relevant to the law. The question invites an examination of the case law to see whether there are any tendencies or factors which affect the assessment of an Article 8 claim and which are related to the person's status. Compare a selection of Article 8 cases with one another.

A key issue which is relevant in answering this question is that of delay, so it will be useful to read cases referred to in that section of chapter 4 which concerns delay. This is because, although delay in decision-making may and does affect an applicant with any kind of immigration status, it has been most noticeable and perhaps most litigated in relation to asylum claimants. The question arises how delay by the Home Office is weighted in the proportionality exercise. There may also be delay in removal after an asylum claim has been refused. Consider in the light of the case law how this should be weighed in the proportionality exercise. It may be helpful also to look at chapter 18.

3. Is proportionality a question of law?

Look at a few Article 8 cases, in the ECHR and in the UK, and look at:

A. The factors the Court takes into account in determining proportionality
B. Whether the Court reaches a judgment on what is proportionate or whether it finds as fact that e.g. removal is proportionate.
C. Consider whether it is clearly one or the other.
D. To get more of a feel of what proportionality is, read what Lord Bingham says about proportionality in A v UK [2004] UKHL 56, and in Huang and Kashmiri [2007] UHL 11.