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.

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