CW (Deportation – Huang – proportionality) Jamaica [2005] UKIAT 00110                         	
													
IMMIGRATION APPEAL TRIBUNAL

Date:  9 March 2005
Date Determination notified:
	07/06/2005

Before:

The Honourable Mr Justice Ouseley (President)
Mr G Warr (Vice President)
His Honour Judge G Risius CB (Vice President)

Between:

APPELLANT

Secretary of State for the Home Department
	RESPONDENT

Appearances:	
For the Appellant:	Mr M Bovey QC instructed by Wilson Terris & Co
For the Respondent:	Mr J P Waite, instructed by Treasury Solicitor

DETERMINATION AND REASONS
1.	This is an appeal from the determination of an Adjudicator, Dr J J Morrow, sitting in Scotland, promulgated on 12 November 2003.  He dismissed the Appellant’s appeal against the decision of the Secretary of State on 2 May 2003 to make a Deportation Order.  The appeal relied on Articles 3 and 8 ECHR.

2.	The Appellant is a citizen of Jamaica born in 1972, who was given six months leave to enter the United Kingdom in 1994, and indefinite leave to remain in June 1995 on the basis of his marriage to a British citizen.  He has two children from that marriage, born in 1994 and 1997.  His mother and siblings remain in Jamaica.

3.	In June 1997, the Appellant was convicted of rape, and sentenced to four years imprisonment, during which time his marriage broke down.  He subsequently formed a new relationship in October 2001 with a medical student with whom he now lives.  He has formed a relationship with his girlfriend’s family, especially her mother and sister, whilst maintaining contact with his children and visiting them on alternate weekends.  He also pays monthly maintenance for them.  His divorce is under way.

4.	In March 2003, he was convicted of being concerned in the supply of Class A drugs and was sentenced to four months imprisonment.  The Sheriff recommended his deportation.

5.	The Adjudicator rejected the Article 3 claim and there is no challenge to that.  He rejected the Article 8 claim in these terms:

“I acknowledge the Appellant has established family life in this country, both with regard to his children whom he has regular contact with and his new relationship with [“S”].  I have also reached the conclusion that there would be an interference to the Appellant’s family life if he were to be returned to Jamaica.  However, bearing in mind all the information before me and in particular the Appellant’s convictions and sentences for two serious matters, one involving sexual violence and the other involving a Class A drug, I have reached the conclusion that it is proportionate to the legitimate aims of the effective Immigration Control to return the Appellant to Jamaica.  While recognising that there are family ties between the Appellant and his children and the Appellant and [“S”], weighing up this matter against the Appellant’s criminal activity, bearing in mind the length of his sentences and the recommendation of the Sheriff in his drug offence case, the interference with the above relationships by the Appellant’s return to Jamaica would be proportionate to the legitimate aims of Immigration Control.  I have therefore reached the conclusion, based on the facts in this case as found above; the Appellant’s rights under Article 8 are not breached.  In the weighing up exercise that I am required to make, the Appellant’s offences are simply too great with regard to that exercise when put alongside the evidence before me.”

6.	The grounds of appeal pointed out that the Appellant had been found to enjoy family life here which his deportation would interfere with.  It was said that the Adjudicator had ignored significant relevant evidence from a Social Enquiry Report writer to the effect that the Appellant represented a low risk of re-offending.  The Adjudicator’s conclusion about the gravity of the offence was unreasonable.

7.	Permission to appeal was refused by the Tribunal but that decision was reversed by Lord Kingarth who said that it was arguable:

“(a)	that it is for the Tribunal as an appellate body, empowered under the Nationality Immigration and Asylum Act 2002 to consider appeals on a point of law, to reach its own view as to whether – on the facts found by the adjudicator – the removal of the petitioner would as a matter of law be incompatible with his Convention rights, in particular under Article 8, and

(b)	that in any event the decision of the adjudicator in relation to the question of proportionality was unreasonable, having regard in particular to the petitioner’s relationship with his children.  I am further satisfied that it cannot be said these arguments have no real prospect of success on appeal.”

8.	The Tribunal originally intended to hear the appeal in mid 2004 but it was adjourned until after the Court of Appeal had decided the appeal in N (Kenya) [2004] UKIAT 00009, which we had been told was to consider the appropriate approach to proportionality following the decision of the House of Lords in Razgar [2004] 2 AC 368.  In the end that issue was not decided in N (Kenya) and this appeal was further adjourned so that it could be considered in the light of the Court of Appeal’s judgments in Huang and Others v SSHD [2005] EWCA Civ 105.

9.	We recognise that that decision is not binding on us, as this is an appeal from an Adjudicator sitting in Scotland;  it is of persuasive weight only.  But as a Tribunal with a UK-wide jurisdiction, there is an obvious undesirability in the law governing its decisions varying with the location in the United Kingdom in which an Adjudicator had sat.

10.	Mr Bovey QC for the Appellant made two principal submissions.  First, the Adjudicator had erred in his identification of the legitimate aim in relation to which removal was said to be proportionate.  That was not immigration control but the prevention of crime.  Immigration control was an economic reason within Article 8(2);  see Baroness Hale at paragraphs 44 to 54 of R (Razgar) v SSHD, [2004] 2AC 368.  The Secretary of State had reached his decision based on the prevention of crime and could not now seek to support a decision of the Adjudicator which was based on a different case;  Slivenko v Latvia paragraph 103 ECtHR 9.10.2003 48321/99.

11.	Not merely did that make the assessment of proportionality in principle unsound, it had led to the Adjudicator failing to consider the true gravity of the offences and the importance of the risk of re-offending, including the specific evidence in this case.  One could not just be substituted for the other as the Secretary of State suggested.  Mr. Bovey pointed to the relatively modest sentence for the rape, the social enquiry report, and to the minor nature of the drugs offence which led to the recommendation for deportation.  No significance should be attached to the Sheriff’s recommendation for deportation because it did not have to be followed.

12.	The later letter from the author of the social enquiry report afforded a basis for saying that there was evidence of a low risk of re-offending which needed to be addressed.  The period of exclusion was also relevant.  The Secretary of State’s letter of 2 May 2003 containing the reasons for the decision to deport referred to disruption to family life being  justified because of the “convictions” (plural) but later said that the seriousness “of your criminal offence” (singular) made removal necessary.  The Secretary of State’s argument to the Adjudicator had concentrated on the rape;  the Adjudicator relied on both offences.  The minor drugs offence seemed to be part of the thinking.

13.	Second, the Adjudicator and the Tribunal had to decide whether the proposed deportation struck the right balance, ie a fair balance between the individual and the public interests.   In so far as Huang at paragraph 61 endorsed the approach in Samaroo v SSHD [2002] INLR 55 in that respect it was correct;  in so far as it adopted any other approach it was wrong and not binding in this appeal.

14.	Mr Bovey later submitted that the correct approach to the balancing exercise for the decision-maker was however not that set out in Samaroo, but that in Boultif v Switzerland [2001] 33 EHRR 1179 which had superseded it.  The Court of Appeal had not reconsidered Samaroo in the light of Boultif.  Mr Bovey referred to paragraph 48 of Boultif  which is as follows:

“48.	The Court has only to a limited extent decided cases where the main obstacle to expulsion is the difficulties for the spouses to stay together and in particular for a spouse and/or children to live in the other’s country of origin.  It is therefore called upon to establish guiding principles in order to examine whether the measure was necessary in a democratic society.

In assessing the relevant criteria in such a case, the Court will consider the nature and seriousness of the offence committed by the applicant; the length of the applicant’s stay in the country from which he is going to be expelled; the time elapsed since the offence was committed as well as the applicant’s conduct in that period; the nationalities of the various persons concerned; the applicant’s family situation, such as the length of the marriage; and other factors expressing the effectiveness of a couple’s family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage, and if so, their age.  Not least, the Court will also consider the seriousness of the difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself exclude an expulsion.”

15.	Mr Bovey submitted that the destruction of established family live would rarely be proportionate in the case of someone who posed a limited future risk of detriment to the public good.  Post Boultif, if it was unreasonable for the spouse to go with the deportee, he should not be deported.  The Adjudicator had not dealt with these considerations.  Relationships which fall short of marriage could also be similarly respected and could make a criminal deportation disproportionate;  Mokrani v France 15.10.2003, 522066/99.  Mokrani had been born in France and had entered into a civil partnership.  The Secretary of State had thought that the soon to be ex-wife and children could go to Jamaica;  but the Adjudicator had apparently supposed otherwise or had made no findings on this issue nor about whether the Appellant’s girlfriend could go with him.  He appeared to have assumed however that it would end that relationship.

16.	Mr Bovey also made submissions at our request about the first paragraph of Lord Kingarth’s reasons for overturning the Tribunal’s refusal of permission to appeal.  The Tribunal could not intervene in an Adjudicator’s decision, if there were no error of law, in order to allow an appeal against a finding that removal would lead to a violation of the ECHR.  But the effect of section 6 of the Human Rights Act 1998 meant that if the Tribunal took the view that removal would violate a Convention right, it had a duty to intervene.  Proportionality was a test of legality, a question of law, just as was an issue of rationality.

17.	There was a difference between the approach under the Immigration Rules and Article 8; here the Appellant sought to stay within the Rules (unlike in Samaroo) and to use Article 8 to colour his application.  The Rules, unlike Article 8, were not concerned with the striking of a fair balance with another person’s rights.

18.	Mr Waite for the Secretary of State submitted that, applying Huang, a discretionary area of judgment should be extended to the Secretary of State because there was a strong element of policy behind what was necessary for the prevention of crime, which the Secretary of State was best placed to judge.  Huang [2005] EWCA Civ 105 paragraphs 59, 60, 61 and 62 said:
“59.	… The true position in our judgment is that the HRA and s.65(1) require the   adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant’s favour notwithstanding that he cannot succeed under the Rules.
60.	In such a case the adjudicator is not ignoring or overriding the Rules.  On the contrary it is a signal feature of his task that he is bound to respect the balance between public interest and private right struck by the Rules with Parliament’s approval.  That is why he is only entitled on Article 8 grounds to favour an appellant outside the Rules where the case is truly exceptional.  This, not Wednesbury or any revision of Wednesbury, represents the real restriction which the law imposes on the scope of judgment allowed to the adjudicator.  It is not a question of his deferring to the Secretary of State’s judgment of proportionality in the individual case.  The adjudicator’s decision of the question whether the case is truly exceptional is entirely his own.  He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases.  There will be a residue of truly exceptional instances.  In our respectful view such an approach is also reflected in Lord Bingham’s words in Razgar, which we have already cited:
‘Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority for exceptional cases, identifiable on a case by case basis.’
61.	We have considered whether in view we have taken of the adjudicator’s task in these cases is in conflict with the reasoning of Dyson LJ in Samaroo v Secretary of State.  In that case there were two appellants whom the Secretary of State had decided to deport on the ground that their continued presence in the United Kingdom was not “conducive to the public good”6.  The first appellant, Samaroo sought on Article 8 grounds to challenge the Secretary of State’s refusal to grant exceptional leave to remain, a deportation order having earlier been made against the appellant.  His application for judicial review as dismissed, as was his appeal.  In the course of giving judgment Dyson LJ said:
‘The Secretary of State must show that he has struck a fair balance between the individual’s right to respect for family life and the prevention of crime and disorder.  How much weight he gives to each factor will be the subject of careful scrutiny by the court.  The court will interfere with the weight accorded by the decision maker if, despite an allowance for the appropriate margin of discretion, it concludes that the weight accorded was unfair and unreasonable.  In this respect, the level of scrutiny is undoubtedly more intense than it is when a decision is subject to review on traditional Wednesbury grounds ….’
Samaroo did not involve the statutory jurisdiction of the adjudicator or the IAT.  As we have said the proceedings were by way of judicial review to challenge the refusal of exceptional leave to remain.  An application for judicial review is categorically inapt as an arena for a full-blown merits appeal.  But Samaroo was in any event in truth a policy case.  There were no applicable Immigration Rules.  The Secretary of State’s position was that the gravity of the appellant’s crime outweighed the compassionate circumstances.  The case was therefore one in which there was an open question as to the respective weight to be given to private right and public interest.  The court was in particular asked to make an assessment, in the context of the case’s facts, of the importance attached by the Secretary of State to the desirability of the appellant’s deportation in light of his criminal past.  In those circumstances the principle of respect for the democratic powers was plainly engaged.  Our conclusions in these present appeals march with the reasoning in Samaroo.
62.	In summary, where in a human rights challenge the court is called upon in any respect to judge the weight or the merits of government policy, it will in deciding the outcome allow a margin of discretion to the policy maker.  So much is required by the democratic principle: the principle of respect for the democratic powers of the State.  In such a case, consistently with its obligations under the HRA, the court’s decision is more intrusive than Wednesbury, being subject to the disciplines described by Lord Steyn in Daly.  But there are cases, exemplified by these appeals, in which the court or adjudicator is not at all called upon to judge policy.  In that case no question of respect for the democratic powers of the State arises: save in the sense, again exemplified here by the Immigration Rules, that prior decisions of the executive or legislature may have fixed, and narrowed, the territory across which the adjudicator’s autonomous judgment may operate.”
19.	Mr Waite submitted that Huang drew a distinction between Article 8 claims, together with claims for international protection and claims under the Immigration Rules on the one hand, in which an Adjudicator should reach his own decision on whether the circumstances were sufficiently exceptional as to render removal disproportionate, and a deportation appeal, on the other hand, on grounds that removal was conducive to the public good.  Paragraph 61 of Huang reconciled that approach with Samaroo on the basis that Samaroo concerned judicial review not a merits appeal, in which the assessment of the Secretary of State’s views on the importance of the deportation engaged the principle of respect for democratic powers.  It was a case, outside the Rules, in which an extra-statutory discretion had been invoked unsuccessfully, which decision was challenged on human rights grounds.  There were no applicable Rules and an “open question” arose as to the relative weight to be given to the public interest and the private right.
20.	Although the Adjudicator formed his own view on proportionality without giving any margin or discretion to the Secretary of State, as he should have done, had he done so, he would clearly have reached the same decision.  The Adjudicator’s decision that removal was proportionate was a question of fact and degree.  Mr Waite submitted that the Adjudicator was not just entitled but bound to conclude that removal was proportionate.  The Tribunal’s jurisdiction in respect of such an issue was determined by A(C) v SSHD [2004] EWCA Civ 1165, paragraphs 23-26 e.g. it could only interfere if the conclusion as to proportionality was perverse.  Lord Kingarth’s possible alternative approach should not be applied; it was inconsistent with A(C).  The same approach had been applied in N v SSHD [2003] EWCA Civ 1369 [2004] INLR 10. The IAT could only interfere if there were an error of law.
21.	Mr Bovey said that it was not necessary for him to contest that approach, but submitted that there was no rationale for that approach, and nothing which showed why it should be applied here.  A(C) was not binding in this case.  But a Court should still intervene, as a matter of legal duty under section 6 HRA 1998, to prevent a breach of human rights if it concluded that the State’s action would involve such a breach.
22.	On the specific points, Mr Waite submitted that there had been no real change in the social enquiry writer’s report, contrary to what Mr Bovey asserted.  It had been considered by the Adjudicator.  Family life in the United Kingdom had been referred to by the Adjudicator.  The Adjudicator had applied his mind to the right proportionality test, even if he had used the wrong label for the interest relied on for justifying the interference with family life, as paragraph 24 of his determination cited above showed.  He had carried out the necessary balancing act, reflecting the Secretary of State’s refusal letter, and his submissions to the Adjudicator.
23.	Mr Waite was unable to help as to why the Secretary of State had not acted on the rape offence, but there was no allegation of irrationality.  The Adjudicator had taken both into account and both had been argued as relevant before him.
24.	Boultif was distinguishable:  risk was a relevant factor, but Boultif presented only a comparatively limited danger;  there had been only one offence leading to a two year sentence, whereas here, the rape sentence had been followed shortly after by a further offence. Boultif was also married to a Swiss citizen, in a continuing relationship.  There was no real basis here for the Adjudicator assuming that TS would not go with the Appellant to Jamaica, although he made that assumption favourably to the Appellant’s claim.
Conclusion
25.	We deal first with considerations specific to this determination, starting with the contention that the Adjudicator has addressed the wrong interest in his proportionality assessment.
26.	We accept Mr Bovey’s submission that the Adjudicator had identified the wrong objective in relation to which the proportionality of deportation was to be judged;  this was not an immigration control case but one concerned with the prevention of crime.  We accept Mr Waite’s point that the Adjudicator in his determination analysed some of the issues which were relevant to the prevention of crime ie the nature and gravity of the offending, but his conclusions on the risk of re-offending are less easy to discern.  This may be because he focussed on the wrong aim.  It is difficult to be satisfied that the proportionality balance was weighed appropriately, according to law, if the wrong public interest was put into the scales.  Although it may be possible to be satisfied that the difference is inconsequential where it is one of mere labelling, it is less easy to be satisfied where one relevant topic, risk of re-offending, is omitted.
27.	Again in many deportation cases, the risk of re-offending may be far less significant than the nature and gravity of the offence.  Rape would readily come into that category.  But there is an unusual feature in this case, which is the way in which the very much more grave offence did not attract deportation proceedings even after release from prison by which time the marriage had broken down, whereas the comparatively minor drugs offence, albeit a second offence committed soon after release, did lead to that consequence.  This may be a proper response from the Secretary of State, though his decision letter is not free from dubiety in that respect.  But it is an aspect which requires some consideration and justification and if any margin of respect for Government policy is to be accorded, it is a margin which the cogency of the decision must earn, through its explanation of the rational and proportionate relationship between the decision to deport and the circumstances of the case.
28.	We also emphasise, as we have done in other cases, that there is a tendency on the part of Home Office Presenting Officers, and we say this without criticism of them and more out of recognition that they have not been properly briefed, to assert that the deportee may be able to seek entry clearance after a comparatively short minimum three year period of absence.  Yet for rape, the minimum exclusion normally imposed may be seven or ten years.
29.	The probable period of exclusion may be of considerable importance in assessing the degree of disruption to family life and the corresponding degree of public interest in the deportation for the prevention of crime which has to be shown.  Yet we have come across many cases, indeed the majority of deportation cases, where that period is identified neither by the Home Office Presenting Officer nor by the Adjudicator.  The same is true here.  Yet it is difficult to see how any sound assessment of proportionality of removal can be made without some view being reached on that issue.
30.	The February 2003 social enquiry report assessed the Appellant as being “in the high risk category of re-offending and of potential harm to others” due mainly to the rape conviction.  It appears that he had a third conviction as well because of the reference to 100 hours of community service imposed in November 2002.  But the significance of that is unclear.  The later report of October 2003, from the same author produced for the appeal to the Adjudicator is distinctly more upbeat: although the rape was “horrendous”, “I would say that [C] has moved on since then”.  There has been no “suggestion of any re-offending” since release and he has been “extremely reliable” in his appointments.  The later report has a distinct advocacy flavour to it.
31.	An Adjudicator properly considering the risk of re-offending could have found reason to discount the later report or to treat it as not justifying any change in view, and if there were no change in view the risk remained high.
32.	The Adjudicator made no separate error in respect of family life.  He made no false assumption about the prospects of the girlfriend going to Jamaica nor about the fact of loss of direct personal contact with his children.  It was understandable that his soon to be ex-wife would wish him to stay and his contact with her, and perhaps his maintenance payments would be affected.  Those factors were taken into account but the potential period of exclusion is relevant here too.
33.	However, there are a number of other issues which we consider that we ought to deal with.
34.	It is necessary to point out in considering this appeal that although the Secretary of State referred in his various letters to paragraph 364 of HC 395, the Immigration Rules, which is the paragraph of specific relevance in deportation appeals, the grounds of appeal to the Adjudicator ignored the application and significance of that paragraph.  They focussed entirely on Article 8 ECHR.  The argument before us did not really engage with that paragraph or the significance of its existence for the proportionality argument.  It was simply said that Article 8 coloured the application of the Rules.  It was not conceded on appeal that a claim under the Rules had failed.
35.	This is an unsatisfactory way of proceeding.  There is an applicable Immigration Rule.  Article 8, because of Article 8(2), cannot operate as a right which stands free of Rules or government policies as to the gravity of particular offences.  The reference in Huang paragraph 61 to there being no applicable Rule in a deportation case simply reflects that there the claim was brought outside the Rules.
36.	On a deportation appeal, the first step should be to consider whether the Immigration Rules meant that the appeal should be allowed.  If so, there would be no particular value in considering Article 8.  If the appeal would be dismissed under the Rules, it would be necessary to consider Article 8.  We consider how that should be done later but the reasons for considering the Rules first are twofold.  There are differences between the Rules and Article 8 in deportation cases which in general mean that the former is wider in scope.  And the conclusion under the Rules is of great significance in reaching a conclusion under Article 8 because it is a very significant input to that later decision, as we explain.  The converse is not the case.
37.	We have addressed the differences in the scope of the Rules and Article 8 in CM (Jamaica) (Deportation – Article 8) [2005] UKIAT 00103.  We said:
“34.	Although in any particular case it is unlikely that the result will be very different applying the provisions of paragraph 364 HC 395 and Article 8 ECHR, it is worth pointing out that there are differences.  First, the task of the decision-maker on appeal from the Secretary of State under paragraph 364 is to decide whether the balance struck by the Secretary of State is correct in the circumstances.  This is the balance between the public interest and other relevant circumstances.
35.	Second, compassionate circumstances may form part of the considerations which arise under Article 8, but they do not do so as such but only where they are part of the arguments about family or private life.  They are by contrast a necessary part of the consideration of paragraph 364.
36.	Third, it is noteworthy that paragraph 364 with its reference to compassionate circumstances, domestic circumstances and all relevant factors brings in the effect of deportation on other family members who are not being deported with the Appellant; thus under the paragraph the effect on the son is relevant.  Under Article 8, the effect on the son would be limited to its consequential effect on the father as the son is not being removed with the father.  This means that the appeal available under the Rules is wider than the appeal available to the Appellant under the applicable Act which confines consideration of the human rights to those of the Appellant.
37.	The decision-maker comes to his own decision on the merits, giving weight to any Secretary of State policies on who should be deported or the gravity with which any sort of offence is perceived and to his decision, but the appeal decision is for the appellate body.  This contrasted with the pre Razgar [2—4] UKHL 27, pre Huang [2005] EWCA Civ 105, review approach to proportionality under Article 8.  The Huang decision applies to the consideration of Article 8 issues.
38.	Fourth, in applying Huang to deportation cases, as there are Immigration Rules which apply to deportation, the position under the Rules should be considered first.  If the case under the Rules fails, it is very difficult to see what factors under Article 8 are not subsumed already in paragraph 364.  Article 8 should then be considered with Huang in mind, but it is difficult to see how a case which fails under the Rules here could be disproportionate under Article 8.  However, the Article focuses on family and private life and respect for those interests is a right which requires to be outweighed by other legitimate interests: immigration control and the prevention of crime.”

38.	If it is concluded that under the Immigration Rules an appeal should be dismissed, the question of how Article 8 ECHR should be approached arises. Razgar is not confined to pure immigration control cases. It is intended to address the relationship between the Rules and Article 8, as the Court of Appeal confirmed in Huang. So the conclusion of Lord Bingham in Razgar as repeated in paragraph 60 of Huang, whilst cast in terms of decisions pursuant to the legitimate interests of immigration control, would be just as applicable to those taken pursuant to the legitimate interest of the prevention of crime. Indeed many deportation cases will involve both. There is no logical reason for a distinction between the various interests within Article 8(2).  We do not see the comment in paragraph 61 of Huang, dealing with Samaroo, as intending to draw such a distinction either. It reflects the fact that Samaroo concerned a case outside the Rules because application of the Rules had already led to a negative answer.

39.	We appreciate that neither Huang nor A(C) are binding on us, as we are sitting on an appeal from an Adjudicator who sat in Scotland. But as we have said, it would be highly undesirable for the Tribunal to decide that its jurisdiction or jurisprudence varied according to where in the United Kingdom the Adjudicator had sat. For that pragmatic reason, we do not intend to embark upon a consideration of whether Huang is persuasive or not. We point out that its conclusions were foreshadowed in relation to entry clearance in cases such as SS (Malaysia) [2004] UKIAT 00091, paragraphs 30-32, subject to the qualification that paragraph 31 of that case has been overruled by Huang in so far as it includes the reasonableness approach.

40.	Whatever reservations we have about the decision in A(C), we adopt the same approach. The Tribunal had taken a different view in MA (Sri Lanka) [2004] UKIAT 00161, as to the admissibility of evidence about post Adjudicator determination events, but it is not to that aspect that the remarks of Lord Kingarth are addressed. He suggests, and Mr Bovey submits, that the question of whether or not there is an error of law in the assessment of what is proportionate is a matter for the Tribunal. This is on the basis that that question is one of law and a disagreement as to the Adjudicator’s answer involves a conclusion that there has been an error of law. This is not the approach taken in A(C).

41.	We do not think that Huang should then be read as saying that the fact that the Adjudicator has a jurisdiction to say that the Secretary of State’s decision is disproportionate and hence unlawful, necessarily means that a conclusion that a decision was disproportionate gives rise to an issue of law on appeal. This point would have been the same under the pre Razgar concept of deference;  a conclusion that a decision of the Secretary of State was disproportionate would necessarily have entailed a conclusion on a point of law and an appeal from it an assertion of an error of law, if the reasoning that it does as a result of Huang were correct.  Yet it is clear from A(C) that that was not what the test was.

42.	The answer is that an Adjudicator has to reach his own assessment as to whether or not a case is one of those exceptional cases in which a decision which conforms to the Rules is disproportionate for the purposes of Article 8, as Razgar and Huang say. On appeal it then has to be shown that that assessment by the Adjudicator, which may involve issues of fact and degree, is itself unlawful by reference to the tests which are used for that purpose by appellate Tribunals and Courts.  Here they are the Wednesbury tests, modified as described in Daly for the purposes of the application of ECHR. And it needs to remembered that the very strict boundaries, laid down in Razgar and reflected in Huang, mean that the range of circumstances within which an Adjudicator, without error of law, can find that an Secretary of State removal decision is within the Rules, but unlawful because of Article 8, is narrow indeed. We add some comments later about the significance of the extra-statutory discretions and policies for that decision.

43.	In this respect Article 8 gives rise to problems no different from those which are to be found in relation to Article 3.  There is a range of circumstances in which removal will breach Article 3.  It is a narrow range because of the severity of the tests which have to be satisfied.  But there are issues of fact and degree and if the Adjudicator’s decision is within the permissible range, it cannot be overturned in law.  If it falls outside the range of permissible decisions when it should have fallen within it, likewise it gives rise to an error of law judged by the same tests.

44.	We do not accept the argument that section 6 HRA requires intervention by way of the error of law jurisdiction on appeal wherever the Tribunal would have reached a different view as a matter of fact and degree and itself would have concluded that a removal would breach the ECHR.  We do not deny that the argument has force and that it would chime with the argument that issues of proportionality are issues of law just as issues of rationality;  if the appellate body concluded that a decision was irrational it would conclude that it was erroneous in law.  There is force in the argument that the same approach applies to proportionality and that that is what Huang contemplates or necessarily involves when it treats the Adjudicator as the arbiter of proportionality and not merely the judge of the reasonableness of another’s decision.

45.	First, however, it does not follow that the Adjudicator’s conclusion that a decision was proportionate and therefore lawful is itself a decision on a point of law.  It is a decision on the facts and an assessment of degree.  If it itself is to held unlawful it has to be shown that that involves an error of law.  If it does not involve an error of law, adjudged by modified Wednesbury standards, there will be no breach of the HRA upon which the Tribunal can fasten and remedy.  The fact that a reasonable body could take a different view of the facts or of the assessment of issues of degree does not convert the decision into an error of law or a breach of HRA.

46.	Second, we would not accept that the concept of an error of law was different depending upon who was the appellant, with a different standard to be adopted where the appellant was the individual from that adopted where the appellant was the Secretary of State. However that was inherent in the approach suggested in this context as the basis for the Tribunal’s intervention on behalf of the individual.

47.	Third, we see nothing in Huang which suggests that the approach to error of law which was set out in A(C), to which Laws LJ himself was party, was intended to be revisited let alone overruled.  We see no good reason not to apply that approach wherever the Adjudicator sat in the United Kingdom.

48.	We therefore set out how the issue of proportionality should be approached now in the light of Huang when this case is remitted. We repeat what we said in MB (Croatia) (Huang- proportionality- Bulletins) [2005] UKIAT 00092:

“29.	What we draw from Huang about the approach of Adjudicators to proportionality is as follows.  The Immigration Rules are the starting point for the assessment.  If an individual has no substantive claim within the Rules, it will be a truly exceptional case on its particular facts, in which an Adjudicator could lawfully conclude that removal was disproportionate.  If an individual falls outside the Rules only for procedural reasons, the same applies save that as in Shala, it is more difficult to insist on procedural requirements where the need for compliance has arisen because of procedural failings by the Secretary of State.  An example of exceptional circumstances may be where the procedural requirements could not be complied with for want of accessible relevant diplomatic facilities in the country of return.

30.	In holding that the Immigration Rules are to be regarded as the proportionate response of the executive, approved by Parliament, to the many and varied circumstances which individual immigration cases present, the Court of Appeal must also have had regard to the way in which those Rules are also supplemented by policies or extra-statutory concessions.  Where an individual may fall within such policies but they have not been considered by the Secretary of State, the decision may be unlawful, because a relevant consideration has been ignored, though it is not for the Adjudicator directly to apply the policy.  Such a policy offers a further guide as to what is the proportionate response of the executive:  if provision has been made through policy or concession for a further class of cases, it will be yet the more difficult for an Adjudicator to hold a decision disproportionate which falls outside the scope of the Rules and any policy concession.

32.	Where a Rule or extra-statutory provision covers the sort of circumstance upon which an individual relies eg entry for marriage, study, medical treatment or delayed decision-making, but the individual falls outside the specific requirements or limits of the otherwise applicable Rules or policy, that is a very clear indication that removal is proportionate.  It is not for the judicial decision-maker, except in the clear and truly exceptional case to set aside the limitations set by the executive, accountable to Parliament, and, in the case of the Immigration Rules, approved by Parliament.

33.	Where Rules or extra-statutory provisions do not make provision at all for circumstances which an individual may rely on for the purposes of overcoming to the qualification to an ECHR right which is provided by the legitimate interests of immigration control, his case cannot rationally be considered more favourably than one whose circumstances are covered in principle by some provision of the Rules or of an extra-statutory policy but whose circumstances do not meet the detailed requirements of the Rules or policy.

34.	The starting point for the consideration of proportionality is the Rules and then the effect of extra-statutory policies.  It will be necessary in each case where an exception is made in respect of an individual who has no basis to enter or remain in the United Kingdom to state clearly why those approved and qualified provisions in the Rules or policies should not be regarded as the conclusive negative answer to that claim.

35.	Compassionate circumstances are often invoked in Article 8 cases, though they may involve in reality no significant aspect of family or private life.  A removal decision may be harsh.  There are Rules and policies which deal with a variety of compassionate circumstances for entry or remaining in the United Kingdom.  If a particular case does not fall within them, the normal conclusion of an assessment of proportionality should be that those circumstances mean that the legitimate interests of immigration control favour removal.  A truly exceptional case would have to be made out.  Article 8 is not a general provision justifying the overriding of immigration control on general compassionate grounds or where there may be harshness and misfortune from removal.  It is a provision which creates rights on specific grounds and only applies where those rights exist; it only precludes the effectiveness of immigration control, as embodied in the Rules and extra-statutory policies or concessions, where the individual circumstances are so powerful and exceptional that those considered provisions should not be allowed the effect which would normally be accorded to them.

36.	Shala and Edore [2003] INLR 361 continue on their facts to exemplify what can constitute a truly exceptional case.  By contrast, the actual facts of Huang and Kashmin exemplify what cannot be such a case, and Abu-Qulbain illustrates what possibly might be such a case.  Huang and Kashmin also illustrate Adjudicator decisions in which seemingly the Adjudicators simply thought that the proportionality issue involved a question of harshness or unfairness, which is a misguided view of Article 8.  Those factors may assist a claim but cannot be its sole content.

37.	Although Huang has held that, following Razgar in the House of Lords, the M* (Croatia) reasonableness approach is wrong in law, it would be a complete misinterpretation of Huang to read it as containing an approach significantly different in its likely effect on the result in individual cases.  Read with Razgar in the House of Lords, it clearly envisages successful disproportionality cases under Article 8, for those who fall outside the Rules or policies, as rare or truly exceptional.  We do not see the difference in legal approach as likely to lead to a different answer in practice, and it is far from clear that any difference which might exist would favour the claimant.”

49.	We recognise that much of that refers to the interests of immigration control but the principles are just as applicable to all the interests represented in Article 8(2) and in particular to that of the prevention of crime.

50.	Nonetheless for the reasons which we have given this appeal is allowed to the extent that it is remitted for hearing other than before Dr Morrow.  It is reported for what we say about Huang and proportionality.

MR JUSTICE OUSELEY
PRESIDENT