Chapter 18

18.2 Immigration Rules

A paragraph 364A has been inserted into the immigration rules, simply saying that paragraph 364 does not apply where the Secretary of State is obliged under the UK Borders Act s.32(5) to make the deportation order.

18.3.1 Families

On 24th April 2008 DP3/96 was revoked by means of a brief statement in Parliament (HC 24th April 2008 col. 110WS). Perhaps the main contribution made by DP 3/96 over and above Article 8 was the consideration it required to the rights of other family members and the effect upon them of the removal of the person subject to the legal decision. This has now been held to be part of the consideration under Article 8, by the House of Lords in Beoku-Betts v SSHD [2008] UKHL 39. DP 5/96 was also formally withdrawn on 9th December 2008.

18.4.2.4 Proportionality

The jurisprudence on proportionality has been developed by the House of Lords in judgments given on 25th June 2008, particularly Chikwamba v SSHD [2008] UKHL 40 and EB (Kosovo) v SSHD [2008] UKHL 41.

The words of Lord Scott provide an enlivening introduction to the judgments:

My astonishment that the case should have had to come this far for the, as it seems to me, obvious conclusion that the appellant and her four year old child should be permitted to remain in this country with the appellant's husband and the child's father prompts me to add a few words of my own…

The appellant…relies on article 8 of the Convention, and, for my part, I regard the decisions of the lower courts as clearly unreasonable and disproportionate. It is, or ought to be, accepted that the appellant's husband cannot be expected to return to Zimbabwe, that the appellant cannot be expected to leave her child behind if she is returned to Zimbabwe and that if the appellant were to be returned to Zimbabwe she would have every prospect of succeeding in an application made there for permission to re-enter and remain in this country with her husband. So what on earth is the point of sending her back? Why cannot her application simply be made here? The only answer given on behalf of the Secretary of State is that government policy requires that she return and make her application from Zimbabwe. This is elevating policy to dogma. Kafka would have enjoyed it. (paras 3 & 6)

Baroness Hale said 'it must be disproportionate to expect a four year old girl, who was born and has lived here all her life, either to be separated from her mother for some months or to travel with her mother to endure the 'harsh and unpalatable' conditions in Zimbabwe simply in order to enforce the entry clearance procedures'. (para 8)

The House held that it could be proportionate to dismiss an Article 8 appeal against removal on the basis that the appellant should return to their country of origin to seek entry clearance, but the question was, under what circumstances? Home Office policy required that people in this position should normally leave to apply for entry clearance abroad. A separation such as the one entailed in Chikwamba was regarded, under this policy, as 'temporary' and therefore not an obstacle to removal.

Lord Brown asked the question whether the policy as a whole was legitimate and proportionate:

It is said to be necessary in the interests of the maintenance and enforcement of immigration control and indisputably that that is a legitimate aim. But precisely what purpose is served and what in reality is achieved by this policy?

…there is reference in some of the cases to jumping the queue, not having 'to wait in the entry clearance queue like everyone else.' It is not suggested, of course, that others are thereby put back in the queue and thus delayed in obtaining entry clearance. On the contrary, the very fact that those within the policy do not apply for entry clearance shortens rather that lengthens the queue. What is suggested however is that it is unfair to steal a march on those in the entry clearance queue by gaining entry to the UK by other means and then taking the opportunity to marry someone settled here and remain on that basis. But is it really to be said that others would feel a sense of unfairness unless those like the appellant are required to make their claims to remain from abroad?

Is not the real rationale for the policy perhaps the rather different one of deterring people from coming to this country in the first place without having obtained entry clearance and to do so by subjecting those who do come to the very substantial disruption of their lives involved in returning them abroad?

Lord Brown thought that this objective was not in itself necessarily objectionable. Sometimes, as in the case of Ekinci, (where the appellant had a history of repeated immigration infringements) it would be reasonable and proportionate to take that course. Lord Brown gives some interesting examples of relevant considerations in deciding whether removal was proportionate:

Whether, or example, the applicant has arrived in this country illegally…for good reason or ill. To advance a genuine asylum claim would, of course, be a good reason. To enrol as a student would not.

He concluded, and this may be taken to be the judgment of the House:

Rather, it seems to me, that only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad.

This decision in effect revises the approach to ‘insuperable obstacles’ as applied in the courts and tribunals. The House of Lords accepted that there was an insuperable obstacle to the appellant’s husband returning to Zimbabwe as he had been granted asylum status. In the lower courts however this had not been extended to the whole family. Following Beoku-Betts (see update on 4.3.1) the interference with the Article 8 right of one family member affects all. There was no suggestion that conditions in Zimbabwe ‘might have changed’ as in Kilala. Whether this is due to different information available concerning DRC and Zimbabwe, different arguments by the parties or different judicial (or public) attitudes is unknown.

In EB (Kosovo) their Lordships repeated the main aspects of their judgment in Huang, which is now clearly intended to represent the proper approach to Article 8 cases. No distinction has been made between entry and removal in applying Huang.

The question of insuperable obstacles has now been further considered, and the Court of Appeal has established that this is not a required test. AF (Jamaica) v SSHD [2009] EWCA Civ 240 followed VW (Uganda); AB (Somalia) [2009] EWCA Civ 5; EB (Kosovo) v. SSHD [2008] UKHL 41, [2008] 3 WLR178 at para 12, and LM (DRC) v. SSHD [2008] EWCA Civ 325 at paras 10/14. These cases ‘dethroned’ the significance of the test of ‘insurmountable obstacles’ and emphasised the importance of whether it was reasonable to expect a spouse or child to depart with the family member being removed. It was inappropriate to apply a test of ‘insurmountable obstacles’ as part of a checklist from the judgment in Mahmood rather than considering whether it was reasonable to require the appellant’s British wife and children to go with him to Jamaica.

VW (Uganda) v SSHD and AB (Somalia) v SSHD [2009] EWCA Civ 5 was an important case on proportionality. The Court of Appeal held that, following EB (Kosovo), the correct approach to assessing the proportionality of an interference with the right to respect for family life required a balanced judgment of what could reasonably be expected in the light of all the material facts. This included whether a settled spouse could reasonably be expected to follow the removed spouse to the country of removal. Although the facts of any particular case might disclose an insurmountable obstacle to removal, such an obstacle was not required in order for removal to be disproportionate.

The second of Lord Bingham’s five points in Razgar did not introduce a requirement of a high threshold to engage Article 8. It simply reflected the fact that more than a technical or inconsequential interference was needed.

18.6 Viability of return

See comment on Queen on the Application of K v SSHD [2008] EWHC 1321 (Admin) in update to 15.5. See also update to 15.9, in which the question of the viability of return affected the lawfulness of detention.

Reading list

Berry, Elspeth, ‘The Deportation of “Virtual National” Offenders: The Impact of the ECHR and EU Law’, Journal of Immigration Asylum and Nationality Law (2009) Vol. 23 no. 1 pp.11-23.
Clayton, G. ‘Death of DP 3/96’, Immigration Law Digest, Vol. 14 no. 2 Summer 2008.
den Heijer, Maarten, ‘Whose Rights and Which Rights? The Continuing Story of Non-Refoulement under the European Convention on Human Rights, European Journal of Migration and Law vol.10 no.3 2008 pp. 277-314
McKee, R. (2008) ‘Definite Article: application of Article 8 in removal cases’ Immigration Law Digest Vol. 14 no. 1 Spring 2008 pp. 14-16
Thomas, R. (2008) ‘Judicial review challenges to removal decisions’, Immigration Law Digest Vol. 14 no. 1 Spring 2008 pp.2-6

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