Value to the community can be taken into account in immigration cases

24 August 2010 by

UE (Nigeria) and Others v Secretary of State for the Home Department [2010] EWCA Civ 975

The Court of Appeal has held that in deciding whether the removal of a person from the UK is compatible with their human rights, their value to the community can and in many cases should be taken into account.

The court ruled that when a decision-maker is undertaking the balancing exercise required to determine whether the removal of an individual from the UK is proportionate under Article 8 ECHR (right to family life), the individual’s value to the community in this country is a relevant consideration to be taken into account. However, this judgment was qualified by indications from the judges that, in practice, this factor is unlikely to carry much weight in the decision-maker’s evaluation.


In immigration cases in which Article 8 is engaged, a decision-maker must undertake a balancing exercise when assessing whether an individual should be removed from the UK. This requires him or her to assess whether the removal is in accordance with the law and is a proportionate means of pursuing a legitimate aim. The “legitimate aim” in immigration cases is generally considered to be the promotion of immigration control. In the present case, the Appellants, a husband and wife and their four children, had argued that their value to the community within the UK was a matter that should weigh in their favour when the decision-maker undertook the balancing exercise. This argument was rejected at first instance, and that decision was appealed.

The Court of Appeal had to consider two issues: first, whether in principle social utility was a relevant consideration in the Article 8 balancing exercise, and second, whether they were bound by previous rulings of the Court of Appeal to find that it was not. On the first issue, the Court held that the proportionality exercise requires a broad exercise of striking a fair balance between the individual and the interests of the community. Contrary to submissions from the Respondent Secretary of State, the interests of the community were not restricted to those that related to the legitimate interest being pursued (i.e. immigration control). Instead, the decision-maker needed to make a judgment in the round, and as such, the value that an individual has in the community is a matter that – in principle – can be a relevant consideration [10-17, 23, 43, 46. Cases considered included: R v IAT, ex p Bakhtaur Singh [1986] 1 WLR 910; Soering v UK [1989] 11 EHRR 439; Huang v SSHD [2007] UKHL 11; AS (Pakistan) v SSHD [2008] EWCA Civ 1118; EB (Kosovo) v SSHD [2008] UKHL 41; JO (Uganda) v SSHD [2010] EWCA Civ 10].

Sir David Keene explained his reasoning in the following way [18]:

[I]f the immigrant has a history of fathering illegitimate children in this country who then become a burden on the public purse, that would seem to me to be a consideration relevant to the need for effective immigration control. It is something which enhances the importance of immigration control being effectively exercised in that individual case. But by the same token a public interest in the retention in this country of someone who is of considerable value to the community can properly be seen as relevant to the exercise of immigration control. It goes to the weight to be attached to that side of the scales in the proportionality exercise. The weight attached to the public interest in removal of the person in question is not some fixed immutable amount. It may vary from case to case, and where someone is of great value to the community in this country, there exists a factor which reduces the importance of maintaining firm immigration control in his individual case. The weight to be given to that aim is correspondingly less.

Sir David stated that this was not a case of rewarding an individual for good behaviour – a charge made by the Secretary of State when arguing that Convention rights were inherent and not earned [19]. Instead, it was merely including a factor in the assessment of the public interest that the decision-maker was already required to undertake.

In his judgment, Richards LJ agreed with this approach, but emphasised that the balancing exercise was a “specific and targeted” one, which weighed factors relating to the maintenance of effective immigration control on one side of the scales and those regarding the individual’s private life on the other. Social utility was relevant in that it might lighten the weight of the former, and/or increase that of the latter [40-43]. However, he stated that it was not a question of “dropping into the scales all aspects of the public interest for or against removal” [40].

On the second matter considered by the Court – whether or not they were bound by precedent – the Court considered in particular the case of RU (Sri Lanka) v SSHD [2008] EWCA Civ 753, in which Scott Baker LJ stated that:

contribution to the community is not a freestanding factor falling to be taken into account when weighing the proportionality test in Article 8

Sir David distinguished this judgment on the basis that it was obiter, the Court not having been asked by the parties to decide the matter [33-34]. He also noted the ambiguities in the phrase “freestanding factor” [32], a point taken on by Richards LJ, who sat both in the present case and RU (Sri Lanka), in which he expressed his agreement with Scott Baker LJ. Explaining his earlier decision, Richards LJ said that social utility was not an independent consideration in its own right, but was a factor that could weigh in favour of the individual in the way set out above. He agreed that the Court was not bound to reject the appeal on the basis of the authority of RU (Sri Lanka) [43-44].

Ward LJ agreed to allow the appeal, stating that insofar as there was any difference of emphasis between his colleagues, it seemed to him to be obiter and hence he would say nothing more about it [46].

In theory, the decision of the Court of Appeal would seem to open up a new and potentially useful line of argument for individuals seeking to prevent or challenge their removal from the UK. However, both Sir David and Richards LJ emphasised that they did not expect social utility arguments to carry much weight in most cases (including that of the Appellants) [36 ,45]. However, as they could not be sure that a properly directed decision-maker would have come to the same conclusion as the Immigration Judge at first instance, they upheld the appeal and remitted the matter for further consideration.

Read more:

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability disclosure Discrimination disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Family life fatal accidents act Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Germany Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection hammerton v uk happy new year Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII hereditary disorder Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee inherited disease Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty in vitro fertilisation Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence limestone pavements lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Sumption Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: