Case No: C5/2008/2840

Neutral Citation Number: [2009] EWCA Civ 590
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No IA/18947/2007]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15th May 2009

Before:

LORD JUSTICE PILL
LORD JUSTICE CARNWATH
and
LORD JUSTICE RICHARDS
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Between:

	SZ (ZIMBABWE)	Respondent
/Claimant	
	- and -		
	
THE SECRETARY OF STATE FOR THE HOME DEPARMENT	
  Appellant
/Defendant	

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Mr J P Waite (instructed by Treasury Solicitors) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
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Judgment
Lord Justice Pill:

1.	This is an appeal by the Secretary of State for the Home Department (“the Secretary of State”) against a decision of the Asylum and Immigration Tribunal (“the tribunal”) dated 7 October 2007, whereby it was held that an earlier decision of the tribunal, promulgated on 23 April 2008, should stand and the appeal against decisions of the Secretary of State, refusing SZ’s application of leave to remain as a student in the United Kingdom, should be allowed.

2.	The respondent is not present and is not represented today.  Mr Waite for the Secretary of State invites the court to proceed with the appeal in her absence. The court has been supplied with information from Mr Waite’s instructing solicitor and also from the court office.  The respondent was represented by solicitors until 11 March this year when they came off the record.  Previous to that, the court documents, in relation to this appeal and the appellant’s notice, had been served on the respondent personally.  That was an error once it was realised she was unrepresented and the papers were re-served on her representatives.  The skeleton argument and authorities bundle have also been served.

3.	It then emerged, when the appellant’s solicitor was attempting to liaise with the respondent’s solicitor, that those solicitors were no longer acting.  The appellant’s solicitor was assured that letters and material had been passed on to the client and that she knew about the proceedings.  

4.	The appellant’s solicitor also wrote to the respondent personally on 1 May reminding her of the hearing date and asking her to confirm receipt of the papers.  I see the letter dated 29 April which is addressed to the respondent. She was asked to provide a contact telephone number and asked whether she had contacted the Citizen’s Advice Bureau for any help she might be seeking and confirming the listing of the case.  

5.	The respondent has, as I have said, not appeared.  In those circumstances the court decided to proceed with the appellant’s appeal.

6.	SZ (Zimbabwe), the respondent, is 32 years’ old and a national of Zimbabwe. She arrived in the United Kingdom as a visitor on 16 April 2002 and on 16 October 2002 was granted leave to remain as a student at United College of London on a computer course.  Further leave to remain to study on a computer course was granted until 13 November 2004.  I should add in relation to non-attendance that Mr Waite, who appears on behalf of the appellant, has attempted fairly to put all material considerations before the court.  

7.	The respondent applied for further leave to remain to study for a diploma in health studies at the United College on 13 December 2004.  That application was refused on the ground that the respondent did not have leave to remain at the time of the application, and also that the college was not registered with the Department for Education and Science.  Further representations were made on the respondent’s behalf in the absence of a reply; a further application for leave to remain as a student was made on 28 February 2006.  The respondent stated that she wanted to study for three years for a diploma in health studies at the United College.  There was a dispute as to whether the required fee had accompanied the application.  The tribunal appears to have resolved that issue in the respondent’s favour.  In the event, the application was not dealt with substantively until 26 October 2007; a statement of additional grounds, received on 9 September 2007, also having been taken into consideration.  Claims to remain under Article 5 and Article 8 of the Convention were refused.

8.	Before the tribunal was also a letter from Broadreach Training College dated 3 April 2008 confirming the respondent’s enrolment at the college for a diploma course in psychology beginning on 3 April 2008 and ending on 30 March 2010.  

9.	The respondent was represented at the hearing before the tribunal on 30 September 2008 by a solicitor.  At paragraph 20 of the decision the tribunal stated: 

“I turn to consider whether or not their decision [the Secretary of State’s decision] to remove the [respondent] is in breach of her human rights.  It was accepted by both parties that the right to respect for private life under article 8 was the only relevant right.”

10.	The tribunal referred to the reasons for refusal in a letter of 26 October 2007, that her claim under Article 8 of the ECHR would also fail since the respondent had produced no evidence of family life and any interference to her private life was proportionate in the legitimate interests of immigration control.  The tribunal also referred to a further letter dated 14 April 2008, in which the Secretary of State stated: 

“The [respondent] has spent most of her adult life in Zimbabwe.  She was in good health.  There was no credible reason for her remaining in the UK since she had not been studying since July 2006 and the interference with her right to private life did not amount to a breach of Article 8.”

They also relied on the points made in their letter. I have quoted from paragraph 3.13 of the tribunal’s decision.

11.	In grounds of appeal to the tribunal based on Article 8 the respondent stated: 

“The removal decision is unlawful because it is incompatible with the [respondent’s] rights under the European Convention on Human Rights.  She has been studying in the UK and established her private life here.  Removing her from the UK will jeopardize her studies and it is contrary to Article 8 of the Human Rights Convention”

12.	A statement of additional grounds stated: 

“If I were forcefully returned to Zimbabwe I would not be able to continue my course of study. My previous applications for further leave to remain in the United Kingdom were granted.  My right to enjoy and complete my chosen course of study should be respected and I ought to be granted the opportunity to pursue my education, and obtain my respective qualifications.”

It is submitted that the recent volatile and political upheaval existing in Zimbabwe will “prohibit me from pursuing my education”.

13.	At paragraph 9 of the determination the tribunal summarised the cross-examination of the respondent.  She said that she was not married and had no children.  She was not working.  She had friends from her church called “Forward in Faith” of Maidstone, and had not brought any letters of support from them.  She had family in Zimbabwe; her father had passed away, but her mother was still alive and her brothers.  They lived in a rural area and had help from the church with food and clothing and her brothers did work in return.  They were poor, and she would be able to get a better job and help to support them if she had a qualification.  

14.	The tribunal concluded at paragraph 23: 

“The [respondent] has not established family life in the UK.  Her only family is in Zimbabwe.  Mr Hedges conceded that private life has been established by the [respondent].  I accept that she has a circle of friends from the Church, who are providing her with spiritual and emotional support.  I accept also that the [respondent’s] studies are very important to her.  Her sponsors have made a considerable financial investment in their achievement and they are the key to her finding good employment and a better life for her family in Zimbabwe.  Thus find that the [respondent’s] private life would be interfered with should she be removed to [Zimbabwe] and is of such a nature as to engage Article 8”

15.	The tribunal then considered in some detail the decision of the House of Lords in Chickwamba v SSHD [2008] UKHL 40.  Opinions in that case had been handed down about three months before the tribunal hearing.  Consideration is prefaced by the comment at paragraph 25 that the tribunal did not wish to pre-empt any decision by an entry clearance officer were the respondent to apply for a student visa from Zimbabwe.  Notwithstanding the earlier comment, the tribunal stated at paragraph 27: 

“As in Chickwamba, I do not doubt that the [respondent] would be allowed to come here to study by the ECO.”

16.	Following the citation of Chickwamba the tribunal stated in the final paragraph 28: 

“Bearing these considerations in mind, together with the fact that the respondent is a genuine student and never at any time had any intention to deceive, and bearing in mind also the considerable delays and mistakes made by the Home Office in dealing with her applications, I consider that it would be disproportionate to return the respondent to Zimbabwe and that this appeal should therefore be allowed.”

17.	It is necessary to consider Chickwamba, and Mr Waite submits it is not relevant on the present facts.  It is not obvious from the decision of the tribunal and the sequence of reasoning to which I have referred how the case was considered relevant to the merits of the Article 8 claim, which alone was what the tribunal was considering as the tribunal itself stated and as the parties had agreed.  It is not stated in terms how the citations in paragraphs 26 from Chickwamba -- paragraphs 26 and 27 -- assist the conclusion in paragraph 28.  

18.	The facts in Chickwamba were stated by Lord Brown of Eaton-under-Heywood, who gave the leading speech, at paragraph 46: 

“Let me now return to the facts of the present case. This appellant came to the UK to seek asylum, met an old friend from Zimbabwe, married him and had a child.  He is now settled here as a refugee and cannot return.  No one apparently doubts that, in the longer term, this family will have to be allowed to live together here. Is it really to be said that effective immigration control requires that the appellant and her child must first travel back (perhaps at the taxpayer’s expense) to Zimbabwe, a country to which the enforced return of failed asylum-seekers remained suspended for more than two years after the appellant’s marriage and where conditions are “harsh and unpalatable", and remain there for some months obtaining entry clearance, before finally she can return (at her own expense) to the UK to resume her family life which meantime will have been gravely disrupted? Surely one has only to ask the question to recognise the right answer.”

Thus the Article 8 claim of the claimants in that case was considered by their Lordships to be invincible.  The other members of the House agreed with Lord Brown’s opinion.  

19.	Mr Waite submits that the effect of the decision is not as broad as some have argued.  The head-note summarises the findings.  Page 1420:
 “While the maintaining and enforcement of immigration control was a legitimate aim of the Secretary of State’s policy in relation to Article 8 family claims, an Article 8 appeal should not be dismissed routinely on the basis that it would be proportionate and more appropriate for the applicant to apply for leave from abroad, and that to remove the claimant to Zimbabwe, where conditions were harsh and unpalatable, can disrupt her family life.  It would violate her and her family’s Article 8 rights and was not justified by the need for effective immigration control.”

20.	The case was considered in the context of facts on which there was an invincible claim to remain on an Article 8 basis.  At paragraph 44 of his speech, Lord Brown stated: 

“I am far from suggesting that the Secretary of State should routinely apply this policy in all but exceptional cases. 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. Besides the considerations already mentioned, it should be borne in mind that the 1999 Act introduced one-stop appeals. The article 8 policy instruction is not easily reconcilable with the new streamlined approach. Where a single appeal combines (as often it does) claims both for asylum and for leave to remain under article 3 or article 8, the appellate authorities would necessarily have to dispose substantively of the asylum and article 3 claims. Suppose that these fail. Should the article 8 claim then be dismissed so that it can be advanced abroad, with the prospect of a later, second section 65 appeal if the claim fails before the ECO (with the disadvantage of the appellant then being out of the country)? Better surely that in most cases the article 8 claim be decided once and for all at the initial stage. If it is well-founded, leave should be granted. If not, it should be refused.”

It is the last part of that paragraph which, in my judgment, is relevant to the present application.

21.	If there is not a good Article 8 claim, permission should be refused.  If there is a good Article 8 claim, it should not routinely be defeated by the need, on a jumping the queue basis, to leave and apply for entry clearance.  If there is no sound Article 8 claim, that consideration does not apply.  What, in my judgment, was required in this case was a decision on Article 8, and it was that issue, which was the only issue before the tribunal, upon which it made its determination.

22.	The respondent’s time and links in the United Kingdom are clearly relevant to an Article 8 claim.  The tribunal set them out.  The claim was not based on the existence of a family life but on interference with her private life.  She had resided in the United Kingdom for six years.  She had been a student, albeit intermittently.  At paragraph 28 the tribunal had regard to what were Article 8 considerations.  As to delay, I bear in mind the speech of Lord Bingham of Cornhill in EB (Kosovo) v SSHD [2008] UKHL 41 at paragraphs 14 to 16.  There was a delay by the Secretary of State in making a decision and that is unfortunate, but there was no significant evidence before the tribunal and no suggestion that during that period the respondent had developed closer personal or social ties, or that close relationships had been developed, or that the delay was the result of a dysfunctional system which yields unpredictable inconsistent or unfair outcomes.  As to the other factors -- and I bear in mind the earlier findings, though not repeated at paragraph 28, about residence here -- the test to be applied is that stated in the House of Lords in Huang v SSHD [2007] UKHL 11.  Applying that test, it has, in my judgment, far from been established that to return the respondent to Zimbabwe would involve breach by the United Kingdom of its obligations under Article 8 of the European Convention on Human Rights.  In my judgment, the facts were not capable of sustaining the conclusion of the tribunal that removal would involve a breach of Article 8.  The tribunal erred in law in my judgment in finding as it did.  

23.	When granting the appellant permission to appeal to this court, the Senior Immigration Judge stated: 

“…the appellant [respondent] did not claim that she had any family life (as opposed to private life) in the United Kingdom such as to engage Article 8 of [the Convention] and that at her appeal had been brought on human rights grounds only, it being common ground that she had no basis for seeking leave to remain in the United Kingdom under the Immigration Rules, there was no rational basis on which the Immigration Judge could properly have concluded that the [respondent’s] removal from the United Kingdom would constitute a disproportionate interference with her Article 8 rights if the Immigration Judge had applied the correct principles when reaching her decision.”

I respectfully agree.

24.	There remains the question of the relevance, if any, of the respondent’s ability to seek entry clearance as a student.  Mr Waite submits that it is of no relevance.  He has properly referred us to the decision of this court in OA (Nigeria) v SSHD [2008] EWCA Civ 82.  That was a case in which the applicant had been granted permission to enter as a student.  The extension had been granted.  She sought advice from an approved immigration advisor appearing on a Home Office website page.  She was badly let down by the advisor in terms of what her rights were and what action she should take.  He was consulted before the existing leave to remain had expired.  

25.	At paragraph 18 Hooper LJ, giving a judgment with which Sir Peter Gibson and Wall LJ agreed: 

“It is most unfortunate that neither the appellant’s representative nor the Home Office Presenting Officer nor any of the Immigration Judges who have looked at this case realised that there was a simple and straightforward way of resolving whether she was entitled leave to remain as a student. Although Mr Kovats [for the Secretary of State] points out that by the time of the appeal before IJ Woolf an issue might have arisen about her progress, I have little doubt that IJ Woolf, if she had been asked to consider an immigration rules appeal, would have granted it.  Unfortunately, as Mr Kovats says, what in truth was a simple application to remain as a student proceeded in the guise of a human rights claim.”

26.	Hooper LJ referred to the determination of the Immigration Judge, which, on the human rights issue, was adverse to the appellant.  Hooper LJ recorded the submission made on behalf of the appellant that: 

“But for [the immigration advisor], the appellant would have made the necessary applications to remain and would almost certainly have succeeded. She would then have been in a position to make an in country immigration rules appeal (which, ironically, she was in a position to do, but no-one realised that).”

Hooper LJ stated at paragraph 29: 

“I would add on the issue of proportionality that, given what we now know, it would surely be disproportionate to require her to leave the country to make an out of country immigration rules appeal when she had the right to make such an appeal but the fact of that right was overlooked by all until noticed by Mr Kovats.”

27.	Thus there may be a situation in which this court is prepared to waive formalities, if I may put it in that way, and grant leave to remain on some ground other than that which had been before the tribunal.  On that issue the Senior Immigration Judge, granting leave to the Secretary of State for appeal, stated: 

“In addition, the Immigration Judge’s conclusion at paragraph 27 of her determination that she did ‘not doubt’ that the [respondent] would be allowed to return to the United Kingdom to continue her studies if she were to make an application for entry clearance to do so following her return to Zimbabwe is one which may fairly be characterised as decidedly questionable, to put it at its lowest, having regard to the fact that it is a requirement for entry clearance as a student that the applicant intends to leave the United Kingdom at the end of his or her studies, and it is plainly arguable that the [respondent] had already demonstrated by her actions as recorded in the determination that she did not have that intention”

28.	Mr Waite refers to the fact that the respondent had been in the United Kingdom, purportedly as a student, for six years; that her study ranged over a computer course, health studies and psychology.  There was no evidence of any obvious link between the various courses she was following or progression by way of a qualification to be sought.  Moreover, the respondent has remained in the United Kingdom for a period of approaching two years from 2006 to 2008 without studying.  Her claim that she did not study because she was worried about her immigration position, is at least questionable.

29.	Whether a fresh permission to enter as a student would be granted by an ECO would be, of course, for the ECO to decide on the information then available.  It is, however, very far from certain, for the reasons given, that an ECO would, on an application made at the appropriate time, grant such leave.  

30.	The tribunal, in my judgment, erred in law in its approach to the question of future leave, and the conclusion reached was not one which could properly be reached.

31.	The Article 8 application fails for reasons I have given, and, that being so, leave to stay should not be granted on the basis of the respondent having some prospect (it can be put no higher) of obtaining leave to enter as a student at some future date.  The context is entirely different from that in Chickwamba where there was a sound Article 8 claim.  Nor, on the facts, can the decision be brought within the approach adopted by this court in OA (Nigeria).  

32.	For those reasons, I would allow this appeal and restore the order of the Secretary of State.

Lord Justice Carnwath:  

33.	I agree that the appeal should be allowed as a result indicated by my Lord.  It is unnecessary to decide the precise limits of the guidance in Chickwamba and inappropriate to attempt to do so without full argument.  However, in short, I agree with my Lord that it was an error of law to treat -- as the judge did at paragraphs 26 to 27 -- to treat Chickwamba as analogous to the present case without adequate reasoning which addressed the crucial factors in that case which are not present in this.  First, that was a case involving interference with family life, including a young child.  As Baroness Hale said at paragraph 8:

“Even if it would not be disproportionate to expect a husband to endure a few months’ separation from his wife, it must be disproportionate to expect a four year old girl, who was born and has lived all her life here, 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.”

That is quite different in kind from the purely private life considerations which are raised in this case.  Secondly, as my Lord has said, in that case there was no doubt that in the longer term the family would have to be allowed to live together here (see paragraph 46).  The judge seems to have proceeded on the basis that this case was analogous at paragraph 27; however, that seems to have been based purely on the fact that she had been enrolled with a registered institution for an appropriate course and, as the judge found, she intended to leave the UK at the end of her studies (paragraph 25).  However, even if -- which Mr Waite does not accept -- it was appropriate to enter into that inquiry, it would be impossible to reach a conclusion without considering her claim against the background of her history, which involved some six years beyond the time originally envisaged, and during which she had studied three different courses with no close connection with each other, and which did not appear to give rise to any professional qualification likely relevance to her future in Zimbabwe and which had not resulted in any qualification. As the Immigration Judge said when granting permission, to say that she was going to leave at the end was decidedly questionable, having regard to her actions as recorded in the determination.

34.	So it seems to me that the basis of the judge’s decision which rested on Chickwamba was, with respect, flawed; and I agree that, if it had been appropriate in the right way, the only reasonable result was that the appeal would have failed.

Lord Justice Richards:

35.	I also agree.  As it seems to me, once the respondent has established a degree of private life in the United Kingdom, her removal in pursuit of legitimate aim of immigration control could not be said on the facts to be disproportionate, but that must be the position even if one looks ahead and takes into account the possibility of future application for entry clearance as a student.  Whatever the outcome of such an application, the only proper conclusion on Article 8 would in my judgment be the same.  On the facts as they currently stand, the only basis on which one could consider this refusal of entry clearance as to prevent her return to this country to pursue a further course of study here could not realistically give rise to a breach of Article 8.  Grant of entry clearance would mean that her studies in this country had been disrupted, and disrupted to an even greater extent than they have already been by her own decision to date; but again that disruption could not realistically give rise to a breach of Article 8.  So, on the particular facts, I do not think that anything can turn for the purposes of the Article 8 analysis on the prospects of success of a future entry clearance application.  That being so, it is unnecessary to consider the precise meaning of the fact of the decision of the House of Lords in Chickwamba and the extent to which it is the most inappropriate for the prospects of success of a future entry clearance application to be considered when evaluating an Article 8 claim.  

36.	Plainly, in the absence of full argument, it is better not to embark upon full consideration of Chickwamba.  It suffices to say, as my Lords have already observed, that the facts of this case are on any view very different from those in Chickwamba.  I am satisfied that the Immigration Judge was mistaken in treating the two cases as similar and in following that route so as to reach the same conclusion in this case as in Chickwamba.  I agree that she erred in law in reaching the conclusion she did and that the only conclusion properly open on the facts of the case is that removal would be compatible with Article 8.

Order:  Appeal allowed