A British Spouse’s proven sensitivity to heat in India can meet the Insurmountable Obstacles test says Court of Appeal

In Lal v The Secretary of State for the Home Department [2019] EWCA Civ 1925 (08 November 2019), neither the First Tier Tribunal who allowed the Appellant’s family life appeal nor the Upper Tribunal who overturned that decision got the law quite right.

As summarised by the Court of Appeal, the case raised issues about when refusing the partner of a British citizen leave to remain in the United Kingdom violates their rights to respect for their family life.

In concluding that the “insurmountable obstacles” test to family life continuing outside the UK (in terms of EX.1(b)of Appendix FM of the Rules) had been met, the FTT Judge allowed the appeal on the basis that the Appellant’s husband, a British citizen in his 70’s , who had always lived in the UK, would not be able to move to India if his wife was required to return there as he simply would not be able to cope with the heat in the country. He was also very clear that if his wife was required to return to India that he would not be able to return with her.

On further appeal, following the Secretary of State having applied for permission to appeal, the Upper Tribunal set aside the FTT decision on grounds of error of law, re-made the decision and dismissed the Appellant’s appeal. The Appellant appealed the Upper Tribunal’s decision, with the Court of Appeal subsequently granting permission to appeal as the case was considered to satisfy the test for a second appeal as it not only had a real prospect of success but raised an important point of principle, which was expressed in these terms:

Is it open to the Upper Tribunal, having left the FTT judge’s findings on the facts undisturbed, namely that the husband of an applicant for leave to remain would not be able to cope with the identified insurmountable obstacles in the country of return and would not be able to return with her, to conclude that the test is not whether the applicant’s husband subjectively cannot surmount those obstacles but whether objectively he should be able do so?”

Background of case

The Appellant, an Indian national born in 1984 arrived in the UK on 24 January 2011 with entry clearance as a Tier 4 (General) Student valid until 10 January 2013. Her leave to remain was subsequently extended until 19 April 2015. On 12 December 2014, the Appellant married a British citizen.

On 17 April 2015 she applied for leave to remain in the UK on the basis of her relationship with him. The application was refused by the Secretary of State in a letter dated 7 July 2015. The sole reason given for deciding that the Appellant did not meet the requirements of Appendix FM for leave to remain as a partner under either the five year route or the ten year route was that the Secretary of State did not accept that the relationship between the Appellant and her husband was genuine and subsisting and that they intended to live together permanently in the UK. The Secretary of State accordingly concluded that she did not meet the requirements of paragraph E-LTRP.1.7. or paragraph E-LTRP.1.10. of Appendix FM. As regards the ten year route, the Secretary of State also concluded that, because the Appellant’s relationship with her husband was not genuine and subsisting, paragraph EX.1. did not apply in her case. In addition, the refusal letter said that the application did not raise any exceptional circumstances which warranted granting leave to remain on article 8 grounds outside the Immigration Rules.

The Appellant appealed from the Secretary of State’s decision to the First-tier Tribunal. The FTT allowed the appeal in a decision promulgated on 6 February 2017. The Secretary of State appealed from the FTT’s decision to the Upper Tribunal. The decision of the Upper Tribunal promulgated on 8 January 2018, set aside the FTT decision, remade the decision in the appeal and dismissed it. The Appellant appealed to the Court of Appeal.

Relevant legal provisions

Section R-LTRP of Appendix FM of the Immigration Rules sets out the requirements to be met for leave to remain as a partner. These include suitability requirements relating to matters such as the applicant’s criminal record, and also eligibility requirements. The eligibility requirements are set out in Section E-LTRP. This has four parts which are concerned, respectively, with the applicant’s relationship, immigration status, financial means and ability to speak English.

The following provisions of Appendix FM are also relevant:

“EX.1. This paragraph applies if – (a)

…………….

(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK. EX.2.

For the purposes of paragraph EX.1.(b) ‘insurmountable obstacles’ means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”

Since August 2017 the obligation to consider whether there are exceptional circumstances requiring leave to be granted on article 8 grounds has been contained in the Immigration Rules themselves.

Part 5A (sections 117A- 117D) of the Nationality, Immigration and Asylum Act 2002 (inserted by the Immigration Act 2014), also provides in Section 117B:

Article 8: public interest considerations applicable in all cases ………………………..

(4) Little weight should be given to— (a) a private life, or (b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious”.

Court of Appeal on the “insurmountable obstacles” test

Having noted the British spouse’s evidence before the FTT was that he was a retired man in his 70s who could not bear hot temperatures and that for this reason he felt unable to go, and would therefore not in fact go to India with his wife if she was required to leave the UK, the Court of Appeal concluded that proof of these facts was not by itself legally sufficient to establish insurmountable obstacles for the purposes of paragraph EX.1.(b) of Appendix FM to the Immigration Rules and that the reasons given by the FTT for reaching that conclusion were therefore inadequate.

The Court of Appeal accepted that the phrase “insurmountable obstacles”, as defined in EX.2. of Appendix FM was correctly reflected by the current guidance for officials published on 23 September 2019, “Family Policy: Family Life (as a partner or parent, private life and exceptional circumstances)”, version 3.0, which was an appropriate explanation of the effect of paragraph EX.2. and accordingly of what is meant by “insurmountable obstacles” in paragraph EX.1.(b) of Appendix FM.

The Court of Appeal also provided the following guidance:

• In applying the insurmountable obstacles test, a logical approach is first of all to decide whether the alleged obstacle to continuing family life outside the UK amounts to a very significant difficulty.

• If it meets this threshold requirement, the next question is whether the difficulty is one which would make it impossible for the applicant and their partner to continue family life together outside the UK.

• If not, the decision-maker needs finally to consider whether, taking account of any steps which could reasonably be taken to avoid or mitigate the difficulty, it would nevertheless entail very serious hardship for the applicant or their partner (or both).

The Court stated in Lal that to apply the test in what Lord Reed in the Agyarko case at paragraph 43 called “a practical and realistic sense”, it is relevant and necessary in addressing these questions to have regard to the particular characteristics and circumstances of the individual(s) concerned. Thus, in the present case where it was established by evidence to the satisfaction of the tribunal that the applicant’s partner is particularly sensitive to heat, it was relevant for the tribunal to take this fact into account in assessing the level of difficulty which the British spouse would face and the degree of hardship that would be entailed if he were required to move to India to continue his relationship. The Court of Appeal did not accept, however, that an obstacle to the applicant’s partner moving to India is shown to be insurmountable – in either of the ways contemplated by paragraph EX.2. – just by establishing that the individual concerned would perceive the difficulty as insurmountable and would in fact be deterred by it from relocating to India. The Court stated that the test cannot reasonably be understood as subjective in that sense. To treat it as such would substantially dilute the intended stringency of the test and give an unfair and perverse advantage to an applicant whose partner is less resolute or committed to their relationship over one whose partner is ready to endure greater hardship to enable them to stay together.

On the basis of the evidence of the British spouse and his adult children, the Curt of Appeal considered that the FTT judge was entitled to find, given the general knowledge that India has a hot climate, that the British Spouse’s sensitivity to hot weather would represent a very significant difficulty if he were to move to India but not that it would make it impossible for him to move there.

To decide whether the obstacle would entail very serious hardship for the spouse and was for that reason “insurmountable”, it was necessary in to examine the facts in more detail and to consider questions such as these:

• if the couple had to move to India, where in India could they reasonably be expected to live?

• what are the average temperatures in that part of India during different periods of the year?

• are there steps which could reasonably be taken to mitigate the heat during hot weather, such as air conditioning, and how adequate would such steps be to meet the difficulty?

• are there any cooler places in which it would be practicable for the Appellant and her British spouse to live for all or part of the year?

• the ultimate question was whether, in all the circumstances, the climate would entail not merely a significant degree of hardship or inconvenience for the British Spouse but “very serious hardship”.

The Court of Appeal concluded that the FTT did not undertake a factual enquiry of this sort. The basis on which the FTT concluded that paragraph EX.1.(b) applied was deficient and the Upper Tribunal was right to set aside the FTT’s decision.

The Court considered that there was no evidence addressing any of these matters. In these circumstances the Upper Tribunal judge was entitled to decide that the Appellant had failed to show that her British spouse’s difficulty in coping with heat amounted, on its own, to an insurmountable obstacle to the couple continuing family life outside the UK.

The Court of Appeal however concluded that the Upper Tribunal too erred in their considerations:

• In his decision, the Upper Tribunal judge said nothing further about the British spouse’s difficulty in coping with heat and instead went on to consider the difficulties posed by his age and his ties to the UK.

• In so far as the Upper Tribunal was suggesting that difficulty in coping with heat cannot entail serious hardship “in a country where there is air conditioning and available urban environments built to protect people against the heat”, there was no evidence on which to base such a sweeping statement. Nor, was it known what the judge had in mind when he postulated the existence of such “available urban environments”.

• If the Upper Tribunal judge was intending to suggest that very serious hardship could not be established without medical evidence of a condition that would make exposure to hot weather medically harmful, this could not be accepted. The question was one of fact and there was nothing wrong in principle with basing a finding about a person’s sensitivity to heat on evidence given by the person concerned and members of their family, as the FTT judge did in this case, if such evidence is regarded as sufficiently compelling.

• What the Upper Tribunal judge ought to have done was to identify all the significant difficulties which the British Spouse would face if required to move to India and to ask whether, taken together, they would entail very serious hardship for him. Had the judge approached the issue in that way and considered in combination the British spouse’s age, his proven sensitivity to heat, the fact that he had lived all his life in the UK, and his ties to friends and family including his four children and six grandchildren in the UK, the Court did not think that the answer to the question whether moving to India would entail very serious hardship for him was a foregone conclusion.

The Court of Appeal therefore concluded that, in re-making the decision on the issue of insurmountable obstacles, the Upper Tribunal made an error of law in his assessment which was material. Once again, difference between

Precarious and Unlawful Immigration Status explained: Statutory Interpretation

The Court of Appeal concluded that the Upper Tribunal judge erred when assessing whether there were exceptional circumstances which made refusing the Appellant leave to remain in the UK disproportionate and hence incompatible with article 8, since the Judge concluded as follows:

“So far as concerns her circumstances considering article 8 outside the rules, the difficulties in the way of the claimant being able to succeed are even greater as s.117B(4) of [the 2002 Act] requires me to attach little weight to a couple’s relationship when that has been entered into at a time when the claimant’s immigration status is precarious. When the couple entered into marriage the claimant was an overstayer and she has never had settled status. There are no compelling circumstances that demonstrate that in India the claimant would not be able to live with her husband without serious hardship. Accordingly, I have no alternative but to dismiss the claimant’s appeal.”

The Court of Appeal considered and concluded:

• The Upper judge was wrong to say that section 117B(4) of the 2002 Act required him to attach little weight to a couple’s relationship when that relationship has been entered into at a time when the applicant’s immigration status is precarious. Section 117B(4) does not refer to “precarious” immigration status and only requires little weight to be given to a relationship formed with a qualifying partner that is established by a person at a time when the person “is in the UK unlawfully”. The sole reference in section 117(B) to “precarious” immigration status is in subsection (5). However, subsection (5) provides only that little weight should be given to a private life established at a time when a person’s immigration status is precarious. It does not state – and there is no provision of section 117(B) which states – that little weight should be given to a relationship formed with a qualifying partner established when a person’s immigration status is precarious.

• From the point of view of the Upper Tribunal judge, the error was not material because he was under the impression that, when she married her British Spouse, the Appellant was an overstayer and was present in the UK unlawfully. It was, however, common ground that this was a mistake. The origin of the mistake appeared to be the Secretary of State’s refusal letter which, in summarising the Appellant’s immigration history, failed to mention that, although her original entry clearance was valid only until 10 January 2013, she was granted further leave to remain until 19 April 2015. The Appellant had in fact never been present in the UK unlawfully. The Upper Tribunal judge therefore considered her situation on a false premise.

• Relying on TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109, paragraph 25 on behalf of the Secretary of State, it was argued that, even so, the errors made were not material because, although this is not a requirement of section 117(B), case law establishes that little weight should be given to a relationship formed by a person with a British citizen if that relationship is established at a time when that person’s immigration status is precarious.

• The Secretary of State also relied on a reported decision of the Upper in Rajendran (s117B – family life) [2016] UKUT 138 (IAC), which indicated that, although section 117B(5) of the 2002 Act is confined to “private life” established by a person at a time when their immigration status is precarious, the considerations set out in sections 117A-D are not exhaustive and it is still relevant for a court or tribunal when considering the public interest to have regard to “precarious family life” criteria set out in established article 8 jurisprudence.

• The Court of Appeal in Lal considered that paragraph 108 in Jeunesse v The Netherlands (2014) 60 EHRR 17 and the European Court’s case law, cannot reasonably be read as establishing that, in determining the weight to be given to a couple’s right to respect for their family life, any relationship formed when one partner did not (or did not to the other’s knowledge) have a right of permanent residence in the country should be given little weight; nor that for this purpose all persons who do not have settled status should be viewed identically, regardless of their particular immigration status and history. To the contrary, the European Court has made it clear that, in striking the balance between the right to respect for family life and the state’s interest in controlling immigration, it is necessary to consider the particular circumstances of the individuals involved, including their immigration status and history- para 107 in Jeunesse.

• There are degrees of precariousness in a person’s situation ranging from, at one extreme, someone who is in the country in breach of immigration laws and is liable to removal through to someone who has been present lawfully in the country for some years and is on a pathway to settled status (such as the five or ten year partner route in the UK) but does not yet have indefinite leave to remain. It would be unreasonable to attach equal weight to family relationships established by individuals in such different legal situations and there is no “settled jurisprudence” which requires this. Rather, the Jeunesse case makes clear that a person’s immigration status may greatly affect the weight to be given to their right to respect for family life: see also R (Ali) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799, para 32; GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630, para 33. It was also worth noting that in the Jeunesse case the Court concluded that on the facts refusing the applicant residence in the Netherlands had been a violation of her right to respect for her family life as protected by article 8.

• In Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536, para 39, the Supreme Court recognised that the word “precarious” has been applied both by the European Court of Human Rights and by UK courts to refer to a variety of situations including that of a person unlawfully present as well as the status of a person lawfully present for a limited period. The Supreme Court held that in the context of section 117(B) of the 2002 Act, however, the word “precarious” should be given a bright-line interpretation which excludes anyone present in the UK unlawfully and includes everyone who, not being a UK citizen, is lawfully present but does not have indefinite leave to remain: see paras 43-46.

• As recognised in the Rhuppiah case (at para 37), it is clear that in section 117(B)(5) of the 2002 Act Parliament has deliberately distinguished between an applicant’s private life, to which little weight should be given in so far as it was established at a time when a person’s immigration status is precarious, and his or her family life, which is not the subject of such a requirement. That leaves it open to courts and tribunals in cases where a relationship with a qualifying partner is established at a time when a person is lawfully present in the UK but does not have indefinite leave to remain to give such weight to the relationship as is appropriate in the circumstances of the particular case.

• It is also notable, and unsurprising, that the policy embodied in the Immigration Rules made by the Secretary of State and approved by Parliament for granting leave to remain as a partner of a British citizen (or settled person) attaches importance to the partner’s immigration status and distinguishes between different categories of person whose immigration status is precarious, rather than treating them all in the same way. Thus, the eligibility requirements for leave to remain as a partner quoted distinguish between (i) a person who is in the UK with leave to enter or remain of more than six months, (ii) a person who is a visitor or has valid leave to enter or remain for a period of six months or less, and (iii) a person who is on temporary admission or release (arrangements now replaced by immigration bail) or present in breach of immigration laws. This is consistent with an approach which, in determining whether refusing leave to remain would be disproportionate, gives greater weight to a genuine and subsisting relationship formed by a person who has been permitted by the Secretary of State to reside in the UK for a significant period for the purpose of study or work than to a relationship entered into by someone who is merely admitted for a short visit or whose presence is tolerated only because they have made an asylum claim or other application which has not yet been determined.

• The two cases under appeal in TZ (Pakistan) were both cases in which, on the facts, it was plain that little weight should be given to the appellant’s family life. The Court noted that TZ did not even meet the definition of a “partner” for the purpose of the Immigration Rules as he had not been living with his girlfriend for two years before he applied for leave to remain. The other appellant, PG, having entered the UK as a visitor with a visa of less than five months, married the man who became her husband within six weeks of her arrival. Neither appellant therefore met the immigration status requirements of Appendix FM.

• The general observations made in TZ(Pakistan) at paras 25-27 of his judgement about family life established at a time when a person’s immigration status is precarious were made on the footing that “precariousness includes both those who are in the UK unlawfully and those who are here temporarily” (para 26) before the Supreme Court in the Rhuppiah case held otherwise.

• No point was raised in TZ (Pakistan) about the difference between, on the one hand, section 117B(4) which addresses both a private life and “a relationship formed by a person with a qualifying partner” at a time when the person was in the United Kingdom “unlawfully” and, on the other hand, section 117B(5) which addresses only “a private life” established by a person at a time when the person’s immigration status is “precarious”. In para 27 of the judgment section 117B is said to require that “if the applicant’s immigration status is precarious, then little weight is to be given to private life or to a relationship formed with a qualifying partner” . The Senior President of Tribunals in TZ(Pakistan) cannot have meant that, as a matter of statutory interpretation, section 117B(4) or (5) requires little weight to be given to a relationship formed with a qualifying partner established at a time when the person was not in the UK unlawfully but their immigration status was precarious. That would be inconsistent with the plain meaning of the statutory provisions. What is apparent from his judgment is that he considered that, in the case of both appellants, their relationship with their partner was far too tenuous to be capable of give rise to exceptional circumstances outweighing the public interest in immigration control. There was, therefore, never any issue whether, as a matter of law, little weight should be given to a substantial family relationship with a qualifying person established at a time when the person was here lawfully but their immigration status was precarious. The observations in paras 25-27 of the judgment of the Senior President of Tribunals in TZ (Pakistan) should not be read as commenting at all on that situation; if they were intended to address it, they are not binding as a precedent because they were not necessary to the court’s decision.

• The Court of Appeal indicated in Lal, that they had no issue with the observations of the Upper Tribunal in the Rajendran case on section 117B and family life. The point is that what weight it is appropriate to give to such a relationship in the proportionality assessment depends on the particular circumstances. The relevant circumstances include the duration of the relationship and the details of the applicant’s immigration history and particular immigration status when the relationship was formed (and when the application was made).

The Court of Appeal concluded that the errors made by the Upper Tribunal in Lal, were not only as to the effect of section 117B(5) and the Appellant’s immigration status but also as to the correct approach in law.

The Court stated that their conclusion on this point accords with the recent decision of the Court of Appeal in GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630, where the tribunal judge was held to have erred in law by treating the “little weight” provisions of section 117B(4) and (5) as relevant to family life as well as private life created when the appellant’s immigration status was precarious, with the result that the tribunal “wrongly discounted the weight to be attached to the family rights relied on in the proportionality assessment” (para 37).

Exceptional circumstances test and consideration of “unjustifiably harsh consequences” factors

The Court of Appeal considered that the Upper Tribunal further erred in applying the wrong test by asking whether the couple would be able to live in India “without serious hardship” as that is a relevant criterion in deciding whether there are “insurmountable obstacles” to continuing family life outside the UK.

In considering, however, whether there are “exceptional circumstances”, the applicable test is whether refusing leave to remain would result in “unjustifiably harsh consequences” for the applicant or their partner, such that refusal would not be proportionate: Agyarko case at paras 54-60.

The essential difference (reflected in the word “unjustifiably”) is that the latter test requires the tribunal not just to assess the degree of hardship which the applicant or their partner would suffer, but to balance the impact of refusing leave to remain on their family life against the strength of the public interest in such refusal in all the circumstances of the particular case. The Upper Tribunal did not undertake such an assessment. This was another error of law which flowed from the errors already identified.

From the judge’s point of view, the question of proportionality had in effect already been answered by his mistaken understanding that he was required by law to attach little weight to the couple’s relationship and his previous finding that there were no insurmountable obstacles to the continuing family life with her husband outside the UK. As a result of those errors, the judge failed to assess the factors relevant to the question of proportionality in the circumstances of the case.

The factors which it was relevant to the Upper Tribunal to consider included the following:

• The FTT’s findings and evidence about the Apellant’s family life with her husband, including the fact that they had been in a relationship since May or June 2012 and living together since July 2014 before marrying in December 2014.

• The facts that the Appellant was present lawfully in the UK when their relationship was established, that she had never been in breach of immigration laws and that she met the immigration status requirements in Section E-LTRP of Appendix FM to the Immigration Rules.

• The facts that no issue had been raised about the Appellant’s ability to speak English or financial independence.

• The facts that the British citizen spouse was aged 73 at the time of the Upper Tribunal hearing, had lived all his life in the UK and that all his friends and family (including his four children and six grandchildren) are in the UK.

• The finding of the FTT that the British spouse would face very significant difficulty in living in India because of his inability to cope with heat.

The Court of Appeal considered that had the correct approach been adopted and the relevant factors considered, there was a real possibility that the Upper Tribunal might have concluded that it would have unjustifiably harsh consequences for the Appellant and her husband, and would be disproportionate, to require the Appellant to leave the UK. The errors of law made by the Upper Tribunal were therefore material.

Court of Appeal allows appeal and takes into account uptodate material change of circumstances

The Court of Appeal set aside the Upper Tribunal’s decision but rather than remitting the case to the Upper Tribunal to re-make the decision, it was considered an appropriate course to invite the Secretary of State to consider the case afresh, as she had made it clear that she would do. There were two reasons for this:

• The Secretary of State’s officials had not yet addressed the relevant questions because, the sole reason given for the decision to refuse leave to remain – since found by the FTT to be erroneous – was that did not have a genuine and subsisting relationship and did not intend to live with her husband permanently in the UK. (The decision also appeared to have been made on the mistaken understanding that the Appellant was an overstayer.)

• Since the Appellant’s application for leave to remain was refused and since her case was considered by the Upper Tribunal, there had been a material change of circumstances which – as discussed in the GM (Sri Lanka) case at paragraph 7 – must now be taken into account.

• The new circumstance was that the Appellant and her husband now had a daughter who was born on 8 June 2019. She is a British citizen and is therefore a qualifying child for the purposes of paragraph EX.1.(a) of Appendix FM to the Immigration Rules and section 117B(6) of the 2002 Act.

• In accordance with those provisions, if on the footing that the Appellant has a genuine and subsisting parental relationship with her daughter, and taking into account the child’s best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK, then paragraph EX.1. applies without the need to show insurmountable obstacles to continuing family life outside the UK and, pursuant to section 117B(6), the public interest does not require the Appellant’s removal from the UK. This was a matter which the Secretary of State accepted that it was now necessary for her officials to consider.

Caselaw considered:

• GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630

• TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109

• Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536

• (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11; [2017] 1 WLR 823

• R (Ali) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799

• Rajendran (s117B – family life) [2016] UKUT 138 (IAC)

• Jeunesse v The Netherlands (2014) 60 EHRR 17

Court of Appeal on the very high public interest in deporting foreign criminals and the “very high bar” required to meet the “very compelling circumstances test”

Even with vulnerable British children under the age of 18years, a foreign national criminal convicted of serious offences and sentenced to a lengthy period of imprisonment, no matter a significant passage of time since that conviction, can still be open to deportation from the UK where the circumstances of his case are considered in law not to surmount the “ unduly harsh test” nor the “ very compelling circumstances test”.

This is exactly what happened in OH (Algeria) v The Secretary of State for the Home Department [2019] EWCA Civ 1763 (24 October 2019), where the Court of Appeal emphasised not only the high level of public interest in deporting any foreign criminal but also “ the very high bar” required to satisfy the “ very compelling circumstances test”.

Background

In OH (Algeria) v The Secretary of State for the Home Department [2019] EWCA Civ 1763 (24 October 2019), the Appellant, a national of Algeria, had long history of criminal offending in the UK. His previous convictions ran from 13 December 1988 to 28 January 2004. The 2004 conviction related to a term of 8years imprisonment for causing grievous bodily harm with intent to do grievous bodily harm. As a result of that conviction, the Appellant became subject to deportation proceedings. The Appellant, had last entered the UK in 1995 and been granted indefinite leave to remain on 10 July 2003 in light of his marriage to a British citizen. Following protracted proceedings after the issue of a deportation order and having won his appeal in 2011, the Appellant was granted successive grants of discretionary leave to remain until 25 May 2014.

OH stayed out of trouble between 2004 and 2014, however an attack in December 2014 on his eldest child, a daughter, led to a conviction on 16 March 2015 when he was convicted of assault occasioning actual bodily harm for which he was sentenced to 12 months imprisonment. The conviction triggered deportation proceedings once again.

On appeal, a First Tier Tribunal (FTT) Judge allowed his appeal. The Secretary of State appealed the decision. The Upper Tribunal ‘s first decision of 15 December 2017, concluded that the decision of the FTT contained an error of law, quashed that decision and ordered that the decision be re-made by the Upper Tribunal(UT). The second decision of 30 July 2018 by the Upper Tribunal dismissed the Appellant’s appeal against deportation on the grounds that, as a “foreign criminal” who had been sentenced to more than four years’ imprisonment, there were no “very compelling reasons” arising from his family life so as to outweigh the public interest in his deportation.

OH appealed to the Court of Appeal against the two decisions of the UT.

OH’s family circumstances

OH had five children with his British wife, who he had married on 8 April 1998. The eldest child (“Child A”) was a young adult and in good health. The second child (“Child B”), a daughter was aged 17. She had hearing problems and suffered from anxiety.

The third child (“Child C”), was 8 years old, had an episode of Bell’s Palsy without long-term effects. The fourth child (“Child D”), a boy aged 6, had been identified as “having a number of autistic spectrum disorder traits”. He experienced behavioural difficulties and could be aggressive and difficult to handle. He was also epileptic, experiencing absence seizures and was on medication for that condition. He had a chromosomal disorder which was linked to his behavioural problems and might in due course cause learning difficulties. He tended to be very active and to be a poor sleeper.

The youngest child (“Child E”), a daughter aged 5, had also been diagnosed as having a chromosomal disorder. She had a condition known as PICA, meaning that she would eat inappropriate things. The FTT had found that she had to be “constantly watched to ensure that she does not eat anything dangerous”. She could be aggressive and her chromosomal disorder could be linked to autism.

What the FTT Judge found

The FTT Judge’s approach having considered the principal facts, was to conclude that the Appellant could not benefit from Exception 1 to section 117C(4) of the 2002 Act and then turned to consider Exception 2, namely whether the effect of deportation on the Appellant’s partner or children would be “unduly harsh”. The FTT concluded that the Appellant could not succeed on the basis of Exception 2 alone, because of the previous sentence of eight years’ imprisonment. However, before proceeding to consider whether there were “compelling reasons over and above those described in Exception 2” it was necessary to see whether exception 2 could be satisfied.

Exception 1 as set out in section 117C(4) contained in Part 5A of the Nationality, Immigration and Asylum Act 2002, provides:

“(4) Exception 1 applies where—

(a) C has been lawfully resident in the United Kingdom for most of C’s life, (b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported”.

Exception 2 as set out in section 117C(5) of the 2002 Act provides:

“(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh”.

The relevant provisions for consideration where the Exceptions are not met is section 117(6) of the 2002 Act:

“(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2”.

The Immigration Rules, paragraphs 398 to 399A contain similar provisions.

In summary, the FTT Judge found:

• OH’ss relationships had improved and he wished to stay with his family and children: they needed him. He was calmer and more supportive and had started attending school and college meetings.

• OH remained in a genuine and subsisting marriage with his wife and there was a close bond between him and his children.

• While the offence of 2015 was serious involving a sustained assault on a child in her own home by her father it was not, given the level of custodial sentence imposed, an offence which could be seen at the most serious end of the scale.

• It would not be reasonable to expect the Appellant’s family to move to Algeria with him. It was in the best interests of the children to live with both parents. The FTT Judge considered the eldest daughter as one of those children, although she was already 18 years of age. As regards the impact of deportation on the eldest daughter, this would not mitigate the guilt and blame that she would feel if her father was deported. She would be likely to carry this with her for the rest of her life and this would affect her emotional wellbeing. The effect of the Appellant’s deportation on his daughter would be unduly harsh.

• In relation to the other four children, it was concluded that the children needed more input from their parents than would otherwise be required. Accepting that the family could be given some support from the wife’s family and from the local authority, this however would not be the kind of support that the Appellant could provide and the effect of deportation on the wife and children would be “unduly harsh”

• The length of time that the Appellant would face being excluded from the UK was a factor which required to be taken into account as the result of the exclusion would be that the Appellant could not come to the UK to visit his wife and children. At the very least the Appellant would face a 10 year exclusion from the UK which would limit his ability to see his family and three of his children were still very young and it was more likely that his exclusion would be indefinite.

• The Appellant’s three youngest children, who all had a strong bond with him, would be deprived of a physical presence and the love and affection of their father while growing up.

• Contact by modern methods of communication was no substitute for a parents’ physical presence in the family home.

• The absence of their father in their formative years would affect the children, in particular, [Child D] who was the only male child and who would have no key male role model in the home.

• The length of time that the Appellant had spent in the UK, ie approximately 23 was very lengthy period.

The FTT Judge found that these factors taken with the other factors considered above amounted to compelling circumstances over and above those described in Exceptions 1 and 2. He concluded that that the best interests of the Appellant’s children outweighed the very strong public interest in deportation of foreign criminals.

The Upper Tribunal’s judgments in overturning the FTT Judge’s decision

The Court of Appeal noted that in its decision of December 2017, the Upper Tribunal had concluded it was not satisfied that the FTT Judge’s reasoning disclosed that it gave appropriate weight to the public interest in deportation, in either its assessment of whether it would be unduly harsh for the children to remain in the United Kingdom if the Appellant were deported or in an assessment of whether there are very compelling circumstances over and above those identified in Exceptions 1 and 2. A proper analysis of the reasoning could be reduced to the fact that the children would be deprived of the physical presence and love and affection of their father whilst growing up and that Child D would have no key role model in the home. These matters, though, far from being very compelling reasons, were the natural consequences of the Appellant’s separation from the family. Of themselves such reasons were far from compelling. The Upper Tribunal also noted that there was considerable emphasis, when considering Exception 2, of the impact on the oldest child (Child A), despite the fact she was not a qualifying child for the purpose of such consideration. It was concluded that there was insufficient reasoning to bridge the gap between the facts of the case, as they had been found to be, and the conclusion that those facts constituted very compelling circumstances of the type required. The decision of the FTT Judge was set aside.

The Court of Appeal also observed that when OH’s appeal came to be remade by the Upper Tribunal in July 2018, UTJ Dawson concluded that, despite the earlier appeal against the Deportation Order in 2011, the 2004 conviction did fall to be considered when categorising the Appellant within the Rules or legislation. To that end he quoted from the decision of the Upper Tribunal in Johnson (Deportation – 4 years imprisonment) [2016] UKUT 282 (IAC). In reliance upon that decision, which he considered to have set out the correct approach, UTJ Dawson noted that the Appellant had received a warning when he was granted leave of what might well happen should he reoffend and he had done so. He was satisfied that the effect of the eight-year sentenced imposed in 2004, coupled with the twelve months sentence imposed in 2015, brought the Appellant squarely within the ambit of paragraph 398(a) with the result that the public interest in deportation would only be outweighed by other factors where there are very compelling circumstances.

UTJ Dawson also concluded that he did not find that deportation would be unduly harsh having regard to the seriousness of OH’s offending history including his reoffending after the warning given with the grant of leave following his successful appeal.

As regards the question of very compelling circumstances, UTJ Dawson concluded that the public interest in the case before him was even stronger and legislation required very compelling circumstances over and above those in the exceptions. There were aspects of the case which were out of the ordinary but in his judgment fell short of the very compelling. The Appellant’s wife had been able to cope in the past and would be able to cope in the future. She had others to turn to for support even if that was qualified. She would not be alone. It was accepted that the best interests of the children were for the claimant to remain. Their interests together with all the other factors that weighed in the claimant’s favour were not however strong enough to outweigh the strong public interest in deportation in the light of his criminal offending. His deportation would be a proportionate interference with the article 8 rights engaged in the appeal.

Court of Appeal’s considerations and conclusions

As regards the effect of NA (Pakistan) 2016 and KO(Nigeria) 2018, the Court of Appeal reiterated the principles as follows:

40.In approaching the application of section 117C(3), (4) and (5), that is to say whether either Exception 1 or Exception 2 may apply, both parties are agreed as to part of the effect of the decision of the Supreme Court in R (MA(Pakistan)) v Upper Tribunal [2018] 1 WLR 5273 (otherwise “KO (Nigeria) v UT”) . The leading judgment was given by Lord Carnwath, with whom the remainder of the Court agreed. Lord Carnwath identified the two categories of foreign criminal (paragraph 20). He then addressed the “difficult question … whether the specific Rules allow any further room for balancing of the relative seriousness of the offence [emphasis added] beyond the difference between the two categories…” (paragraph 21). The Court concluded that neither Exception 1 nor Exception 2 involved any further consideration of the seriousness of the Appellant’s offending, which could not bear on the specifics set out in Exception 1, or the level of “harshness” specified in Exception 2 (paragraph 23). Hence, both parties agree that the seriousness of the offending cannot affect whether or not Exception 2 is established. They are also agreed that, if the relevant foreign criminal falls within the higher category, where “very compelling reasons” are required, then the seriousness of the offending can indeed come into consideration in the balancing exercise, reflecting section 117C(2): “the more serious the offence … the greater is the public interest in deportation”.

53.Mr Saeed emphasised the approach laid down by this Court in NA (Pakistan) v SSHD [2017] 1 WLR 207:

“30. In the case of a serious offender who could point to circumstances in his own case which could be said to correspond to the circumstances described in Exceptions 1 and 2, but where he could only just succeed in such an argument, it would not be possible to describe his situation as involving very compelling circumstances, over and above those described in Exceptions 1 and 2. One might describe that as a bare case of the kind described in Exceptions 1 or 2. On the other hand, if he could point to factors identified in the descriptions of Exceptions 1 and 2 of an especially compelling kind in support of an Article 8 claim, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, they could in principle constitute “very compelling circumstances, over and above those described in Exceptions 1 and 2″, whether taken by themselves or in conjunction with other factors relevant to application of Article 8.”

The Court in OH, stated at paragraphs 51 of its judgement that the FTT Judge was obliged to consider first whether deportation would be “unduly harsh” (Exception 2) and then, even if that was established, whether there were “very compelling circumstances over and above those described” in Exception 2. The FTT Judge did follow that approach, in the sense that there was a proper self-direction in those terms, and the tribunal’s reasons were structured in that way.

However, in dismissing the Appellant’s appeal and upholding the Upper Tribunal’s decisions, the Court of Appeal concluded:

61.There was clearly a misdirection by the FtT in considering Exception 2. The Appellant’s eldest daughter was not a “qualifying child”. Yet she was a major focus of the FtT’s thinking under Exception 2.

62. The level of public interest in deporting any foreign criminal is high, as the statute makes clear. I bear in mind that, as the Supreme Court made clear in R (MA (Pakistan)), consideration of the extent or seriousness of the parent’s criminality falls outside the proper approach to Exception 2. In considering whether deportation would be “unduly harsh”, a tribunal must conduct the balancing exercise with the broad (but very high) public interest in deporting foreign criminals in mind. Looking at the degree of criminality at this stage will lead to confusion.

63.Beyond the error of considering the position of the eldest daughter on Exception 2, it seems to me that the FtT did indeed fail at the stage of considering whether “very compelling circumstances” arose. As a matter of language and logic, this is a very high bar indeed. The tribunal or court concerned cannot properly get to that stage unless and until it has found that the consequences of deportation will be not merely harsh, but “unduly” harsh. This must in effect mean “so harsh as to outweigh the public interest in deportation”, that public interest being the general one. It will be obvious that to go beyond that means a close analysis of the offender’s criminality, a recognition of the degree to which that elevates the public interest in the specific deportation, and then a clear consideration of whether (in this instance) the impact on family life would represent “very compelling reasons” so as to tip the balance. In my judgment, UTJ O’Connor was right in his decision. The FtT did not proceed clearly enough in that way. I fully accept and endorse the principle stated in English v Emery Reimbold. Review of the reasons given by a tribunal must not become a formulaic or “tick-box” exercise. Tribunals are not obliged to write extensive essays or indulge in an anxious parade of learning. However, when approaching a statutory test of “very compelling reasons”, a tribunal does have an obligation to be more than usually clear as to why such a conclusion is justified. Apart from any other consideration, full and clear reasoning will be protective of an appellant where such a finding is indeed justified.

65.I intend to address this very shortly. In my judgment it is quite unarguable that the conclusion of UTJ Dawson against the Appellant was irrational or indeed wrong. This Appellant has a long criminal record, including very serious offending, and culminating in a further significant offence against his daughter. I accept that life will be difficult for the family in his absence and the impact may properly be described as “harsh”, but that is not the test laid down by Parliament. Nor do I see any other basis in which this decision could be said to be irrational or wrong. I would dismiss this ground also”.

Conclusion

The basis upon which OH’s appeal was initially allowed by the First Tier Tribunal Judge and the factors taken into account as set out above, were subsequently considered by the Upper Tribunal to be flawed.

This is yet another deportation case where an FTT Judge has allowed an appeal but with that initial decision being subsequently overturned for lack of sufficient reasoning or failure to follow the correct legal approach.

Tribunal Judges should note as per the Court of Appeal at paragraph 63 above, when justifying a finding of very compelling circumstances “ Apart from any other consideration, full and clear reasoning will be protective of an appellant where such a finding is indeed justified”.

Overstaying spouse of a qualifying partner: Court of Appeal sets out correct approach to Article 8 family life rights

There is nothing “brand new” about the legal tests that the Court of Appeal applied in GM (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1630 (04 October 2019)

What is apparent however as tipping the balance in the Appellant’s favour as an overstaying spouse who had remained in the UK in breach of the Immigration Rules, is the fact that by the time her appeal came to be heard in the Court of Appeal, her husband and children had been granted settled status:

“In particular, the Secretary of State has now formally recognised that the husband and both children should be entitled to remain in the United Kingdom indefinitely. They have “settled” status. Their position is now no longer precarious in any practical or real sense….Three members of the family can stay permanently, but the mother cannot and on the analysis of the Respondent she must leave, and notwithstanding her decision to grant settled status to the husband and children they must leave with her if the family is to survive intact. On this analysis the family is placed in the most awful dilemma. If the father and children are to reap the benefits of their newly granted settled status, then they would have to do so without the wife and mother…………And in this appeal the Respondent opposes the Appellant’s arguments ………On the Respondent’s case, for the husband and children to enjoy the rights granted, great harm will therefore have to be imposed upon them all by the destruction and rupturing of a family life in this country. On the other hand, if the family is to be preserved as a unit then the father and the two children must leave the United Kingdom and thereby place in jeopardy their ILR and the settled status of three of the four family members……….No one questions that the best interests of the children lie in remaining with both parents. There is a deeply disjointed feel to this case. We are at a loss to understand why, in the light of the grant of ILR to the husband and children, the Respondent has not pragmatically agreed to revisit the position of the Appellant”.

In reference mainly to the following case law:

• Ali v SSHD [2016] UKSC 60

• Agyarko v SSHD [2017] UKSC 11

• KO (Nigeria) v SSHD [2018] UKSC 53

• Rhuppiah v SSHD [2018] UKSC 58

the Court of Appeal in GM(Sri Lanka) sought to apply the arising principles out of that caselaw in relation to:

• the proportionality test;

• the relative weight to be attached to various factors in the balancing and weighing exercise;

• the relationship between the Immigration Rule, the NIAA 2002 and Article 8;

• the meaning of “little weight” in sections 117B(4) and (5);

• the extent to which the “little weight” test applies to family rights;

• the relevance of a person’s immigration status in a family life assessment; and

• the relevance of “insurmountable obstacles” to return in the family life context

Background summary

The Appellant, a national of Sri Lanka, arrived in the United Kingdom on 18th January 2010 with entry clearance as a student. In or about January 2011, the Appellant met her husband. They married on 13th August 2012. The Appellant’s leave to remain expired on 30th May 2013. The Appellant’s husband who had been granted limited leave to remain until 2018 had been in the United Kingdom since 1998 and had not returned to Sri Lanka since that date. The couple had a child, born on 31st October 2012.

On 1st September 2014, the Appellant claimed asylum and also advanced an argument based upon the human rights claim. The decision of the Secretary was issued on 20th February 2015. It rejected both the asylum application and the human rights claim. The decision focused upon the Appellant’s asylum application and dealt secondarily with the claim under Article 8. The Secretary of State stated that the Appellant’s husband was not “settled” in the United Kingdom because he only had limited leave to remain until 5th February 2018 and the Appellant was not therefore entitled to apply for leave to remain as a parent. The Secretary of State considered exceptional circumstances and referred briefly to the fact that the husband had recently been granted discretionary leave to remain outside the Immigration Rules. The Secretary of State also focused upon the absence of insurmountable obstacles to return as a reason for rejecting exceptional circumstances.

An appeal against the decision was lodged with the FTT. By this time the Appellant had a second child with her husband. The decision of the First Tier Tribunal( FTT) Judge was promulgated on 25th August 2015. It rejected the appeal on all grounds. A subsequent appeal to the Upper Tribunal was rejected on 7th December 2015.

A Point of Principle: material change of circumstances and consideration of up- to -date evidence

The Court of Appeal noted that the judgment under appeal was made in 2015, however since then the Supreme Court had clarified a series of issues relating to the test to be applied under Article 8 in relation to the Immigration Rules and section 117B Nationality, Immigration and Asylum Act 2002 (“the NIAA 2002” and “section 117B”). The FTT Judge in the present case did not have the benefit of these judgments.

It was noted that the position of the family had materially changed in the period elapsing between the FTT judgment and the appeal in the Court of Appeal. There had been a material change of circumstances brought about primarily by fresh decisions made by the Home Office which have fundamentally altered the legal position of the Appellant’s husband and children by conferring settled status upon them. On 3rd August 2018, the Secretary of State granted indefinite leave to remain (“ILR”) to the Appellant’s husband and to her two children. This was discretionary for reasons not covered by the Immigration Rules. It was explained to the Court of Appeal during the hearing that the grant was because the husband had been granted Discretionary Leave to Remain (“DLR”) as a “legacy” applicant. Upon the basis of the Secretary of State’s policy as set out in “Asylum Policy Instruction- Discretionary Leave” Version 7.0 (18th August 2015) the father was on a pathway to settled status, and when this occurred the children would also acquire settled status as dependents. This was clear from the “Transitional Arrangements” set out in Section 10 of the Policy Document.

The Court stated that they had to consider the extent to which the decision they had to take reflected the most up to date position. This was considered to raise a point of principle.

The Court concluded that that if an appellate court finds that a lower court or tribunal acted lawfully by reference to the evidence before it but that based upon the facts now known to the appeal court to uphold the decision would violate fundamental norms, then the appellate court must ensure that the decision it takes is compliant with the law, ie under section 6 Human Rights Act 1998 all public bodies, including courts, must apply the Act and thereby the ECHR.

The Court therefore sought to apply a two stage process: by addressing the impugned FTT decision upon the basis of the evidence that was before the Judge but, in the light of the Court’s conclusion, then to consider the up to date evidence in relation to what followed by way of relief, in other words, to defer consideration of the changed circumstances.

In order to give effect to the Court’s conclusion that the FTT erred, they set aside the Decision and relevant judgments, however decided not remit the matter back to the FTT.

The Court of Appeal directed that the Secretary of State consider the position of the Appellant afresh, in the light of the altered circumstances.

The Proportionality Test explained

The Court of Appeal made clear the six preliminary observations about the test to be applied:

• 26.First, the IR and section 117B must be construed to ensure consistency with Article 8. This accords with ordinary principles of legality whereby Parliament is assumed to intend to make legislation which is lawful ……..Were it otherwise then domestic legislation could become inconsistent with the HRA 1998 and the ECHR and be at risk of a declaration of incompatibility.

• 27.Second, national authorities have a margin of appreciation when setting the weighting to be applied to various factors in the proportionality assessment….That margin of appreciation is not unlimited but is nonetheless real and important (ibid). Immigration control is an intensely political matter and “within limits” it can accommodate different approaches adopted by different national authorities. A court must accord “considerable weight” to the policy of the Secretary of State at a “general level”……..This includes the policy weightings set out in Section 117B. To ensure consistency with the HRA 1998 and the ECHR, section 117B must, however, have injected into it a limited degree of flexibility so that the application of the statutory provisions would always lead to an end result consistent with Article 8: Rhuppiah (ibid) paragraphs [36] and [49].

• 28.Third, the test for an assessment outside the IR is whether a “fair balance” is struck between competing public and private interests. This is a proportionality test…………….In order to ensure that references in the IR and in policy to a case having to be “exceptional” before leave to remain can be granted, are consistent with Article 8, they must be construed as not imposing any incremental requirement over and above that arising out of the application of an Article 8 proportionality test, for instance that there be “some highly unusual” or “unique” factor or feature: Agyarko (ibid) paragraphs [56] and [60].

• 29.Fourth, the proportionality test is to be applied on the “circumstances of the individual case”: Agyarko (ibid) paragraphs [47] and [60]. The facts must be evaluated in a “real world” sense: EV (Philippines) v SSHD [2014] EWCA Civ 874 at paragraph [58] (“EV Philippines”).

• 30.Fifth, there is a requirement for proper evidence. Mere assertion by an applicant as to his/her personal circumstances and as to the evidence will not however necessarily be accepted as adequate: In Mudibo v SSHD [2017] EWCA Civ 1949 at paragraph [31] the applicant did not give oral evidence during the appeal hearing and relied upon assertions unsupported by documentary evidence which were neither self-evident nor necessarily logical in the context of other evidence. The FTT and the Court of Appeal rejected the evidence as mere “assertion”.

• 31.Sixth, the list of relevant factors to be considered in a proportionality assessment is “not closed”. There is in principle no limit to the factors which might, in a given case, be relevant to an evaluation under Article 8, which is a fact sensitive exercise. This obvious point was recognised by the Supreme Court in Ali (ibid) at paragraphs [115ff]] and by the Court of Appeal in TZ (Pakistan) and PG (India) v SSHD [2018] EWCA Civ 1109 (“TZ”) at paragraph [29]. Nonetheless, there is in practice a relatively well trodden list of factors which tend to arise in the cases. We address those of relevance to this appeal below. But others exist, identified in Strasbourg and domestic case law, such as the personal conduct of an applicant or family member in relation to immigration control eg. breach of immigration rules or criminal law, or public order considerations; the extent of social and economic ties to the UK; and the existence of prolonged delay in removing the applicant during which time the individual develops strong family and social ties: See generally Ali paragraph [28] citing with approval Jeunesse v The Netherlands (2014) 60 EHRR 17 (“Jeunesse”)

Court of Appeal’s considerations and conclusions

The Court noted that at the heart of the appeal was whether, at base, the approach taken by the FTT Judge to the evidence was lawful, in the light of guidance set out in the Supreme Court judgments.

It was the Court’s judgment that (not having had the benefit of the Supreme Court rulings to guide her) the Judge erred in the approach that she adopted to the issue relating to Article 8 family life rights.

The Court of Appeal considered the appeal under the following headings and reached its conclusions:

The nature of the rights that risk being relinquished if a person has to leave in order to retain a family life:

• It was argued on behalf of the Appellant that the FTT failed to address a relevant consideration, namely the nature of the rights that (non-Appellant) family members might have to relinquish in order to leave and reside with the Appellant in Sri Lanka. It was pointed out that if the husband and children returned to Sri Lanka then under the present law, they stood to lose their present DLR and any advantages, such as legacy rights and a pathway to settlement, that such rights conferred.

• The Court of Appeal concluded the underlying point was a practical one: the law is not concerned with form but with the practical substance of the actual immigration status of the person in issue.

• In the present case the FTT Judge did not analyse or weigh the nature and relevance of the legacy rights held by the Appellant and the children as part of the proportionality exercise. That omission reflected a failure to address a relevant consideration.

The application of section 117B(4) and (5) and the weight to be attached to family life created when immigration status was precarious:

• It was argued on behalf of the Appellant that taken as a whole and upon a fair reading the Judge wrongly applied the “little weight” provisions of section 117B(4) and (5) to the generality of the evidence relating to family life and in so doing made an error of law and also of assessment.

• The Court of Appeal held that the starting point is that neither 117B(4) nor (5) has any material relevance in the context of a family life case such as the present. In Rhuppiah the Court clarified that the “little weight” provision in section 117B(4) applied only to private life, or a relationship formed with a qualifying partner, established when the person was in the United Kingdom unlawfully. It did not therefore apply when family life was created during a precarious residence ie. a temporary, non-settled, but lawful, residence, which was the case in this appeal.

• The FTT Judge did not distinguish between the weight to be attributed to family life rights and private life interests in the assessment which followed; they were treated as one. The FTT seemed to have considered that the “little weight” provisions were relevant and to this extent it followed that the Judge wrongly discounted the weight to be attached to the family rights relied upon in the proportionality assessment.

The relevance of awareness from the outset that the persistence of family life would be precarious:

• Advanced on behalf of the Appellant was the subjective knowledge of the family as to the persistence of their family life in the United Kingdom.

• It was noted that in Rhuppiah (paragraph [28]) the Supreme Court articulated the point as follows: “…the question became whether family life was created at a time when the parties were aware that the immigration status of one of them was such that the persistence of family life within the host state would from the outset be precarious”.

• It was pointed out on behalf of the Appellant that this was a different test from the normal precariousness test as applied to an applicant’s own, personal, private life interest (as set out in section 117B(5)). This is because the awareness referred to by the Supreme Court concerns the position of all the relevant parties, and in a family life case would include the partner of an Appellant or applicant and any children capable of being relevant on the facts to such an awareness.

• The Court of Appeal concluded that it seemed at least arguable that as of the date when the Appellant married her husband, he was by then on a recognised pathway to settled status which could, realistically, in due course have affected his and her knowledge of the ability of their family life in the United Kingdom to persist. The Court made no definitive findings on this save to say that the omission of any recognition or analysis of the issue by the FTT Judge was potentially material.

The paramountcy of the interests of the children:

• It was argued on behalf of the Appellant that the FTT Judge erred in her assessment of the position of the children. She conlcuded that the father was able to move to Sri Lanka and therefore he should, and any refusal to do so was his “choice”. That being so she held that the children would not suffer because the family could remain together in Sri Lanka. But she failed to analyse the case upon the basis of the unchallenged evidence, which was that the husband had strong reasons, including his legacy DLR status, which meant that he would not leave the United Kingdom. It was pointed out, in this regard, that were the father and children to leave for Sri Lanka they risked losing their valuable DLR status with its possible pathway to settled status.

• It was argued that the position of the children had to be analysed in the context of an acceptance that the father would stay and, this being so, the family would be ruptured and fractured and the children would suffer either from separation from their mother (one child was only two months old at the time) or from their father when it was common ground that he was the bread winner and the children benefited from having two parents.

• The Court of Appeal concluded that the law supported this argument. The Judge did not analyse the position of the children from the correct perspective. She proceeded upon the basis that the husband would make a choice that he said that he would not take. She ignored the implications of the fact that she did not reject his evidence about remaining in the United Kingdom. She overlooked the risk that the family could be ruptured as a result of her decision.

The relevance of the existence of in/surmountable obstacle to return:

• It was argued that on a fair reading of the judgment the FTT applied, in a mechanistic manner, an ability or capability test. The Judge simply asked whether the husband could return. Having rejected his asylum arguments, the Judge rejected cursorily arguments about the husband having no social or economic links in Sri Lanka given the length of time that he had been away from the country without ever having returned, and his argument that he would not be able readily to find employment. The analysis was conclusionary, partial and ignored relevant matters, such as the rights that the husband (and children) would risk losing if they returned to Sri Lanka (the husband’s legacy DLR with its established pathway to settled status for the husband and children).

• It was the Court of Appeal’s judgment that the Judge did err. It was noted that it was made clear by the Supreme Court in Ali that even if it is practicable and feasible for a person to return that is not the end of the story – proportionality must also be considered which necessitates a careful analysis of the fair balance that exists between the State’s interest in immigration control and the individual’s interests. In this case the State had accorded the husband and the children DLR and they were (at the time of the FTT hearing) on a pathway to settled status and this being so, the State had no discernible, sensible, objection to the husband and children being in the United Kingdom. This was relevant to any assessment of the proportionality of compelling the father and children to move to Sri Lanka if family life was to be preserved.

• In this case the Judge did not say that she was considering the “reasonableness” of the husband leaving and instead focused upon whether he had the ability / capability to move to Sri Lanka. The point was made for the Appellant that if her husband and children were to follow her then they would lose their leave to remain and with it the chance (which of course did materialise) of settled status in the UK. There was no analysis of whether in such circumstances this was proportionate or reasonable for the husband or for the children.

• In the Court’s judgment the Judge wrongly applied a mechanistic ability or capability test. She did not apply a proportionality test and she failed to address herself to relevant factors.

The New Home Office Application Process – A Shoddy Service

Treating applicants and lawyers as Administrative Assistants to the process

The Home Office have gone paperless and applicants along with legal representatives are being treated as administrative assistants helping to prop up the system.

It is the case that either supportive documents are scanned and uploaded via the UKVCAS website in advance of personal appointments or applicants must pay for the Document Scanning service during the appointment at a Core Service Point. The charge is £45 per person and this applies to all appointments booked on or after 22 July 2019.

For applicants not confident that documents have been uploaded properly, a document checking service is also provided to check that an applicant has correctly uploaded the documents for their appointment, that the scanned documents they provided are of an acceptable quality and are complete. To use this service applicants are required to upload their documents through UKVCAS website at least 2 working days before their appointment date.

Not only is there a need to scan and upload documents but this has to be done in a prescribed manner designed solely to make Home Office decision- maker’s lives easier. Documents are required to be provided in each of the categories set out in the Mandatory Documents and the Optional Documents sections.

The Mandatory documents section requires the following to be uploaded:

• Proof of identity/travel history

• Proof of application

The Optional documents section requires the following to be uploaded:

• Other

• Residence in the UK

• Finances • Proof of Business

• Life Events

• Medical Information

• Sponsors/Employment

• Educational

Applicants who are legally represented will of course look to their legal representatives to ensure that documents are correctly scanned and uploaded. Where documents are voluminous, this a very laborious task. For those actually reliant upon administrative assistants to undertake this task, well and good however utmost care must be taken to ensure that every single document to be relied upon in the application has been correctly uploaded.

Where applicants have paid a hefty application fee in advance for their applications to be processed, it is not at all apparent why they should, when they need to at a service and support centre appointment, have to pay further so as to have their documents uploaded by support staff.  Surely scanning  and uploading of availed orderly documents is part of the customer service aspect?  If not,  what is?

No acknowledgment letter or email of pending applications

It used to be the case that prior to the new Home Office online application visa process, upon submission of a postal application for leave to remain, an acknowledgment letter of sorts would be forthcoming from the Home Office within a matter of days or weeks.

Not so nowadays.

Applicants  attending pre-arranged appointments at Service and Support Centres(SSC) are literally walking away with no evidence that they have a pending application with the Home Office.

It also used to be that letters sent out by the Home Office to have biometrics enrolled at the post office would suffice to indicate and re-assure that an application was pending. However, apart from claims such as those under the Domestic Violence Rules, which generate biometrics enrolment letters automatically upon online submission of an application, applicants no longer receive such letters in the post. Instead, enrolment takes place at a service and support centre. Information from the .Gov website sets out what happens at a service and support centre- https://www.gov.uk/visas-and-immigration-service-and-support-centres:

“A UK Visas and Immigration (UKVI) staff member will:

take your biometric information (fingerprints and a photo)

check and scan your documents

• make sure your application includes all the information needed

• tell you what happens next You’ll usually get your documents back at the end of your appointment. UKVI may keep your travel documents, such as your passport, until your application is processed”.

There is a nothing to stop an applicant forwarding further evidence by post to the Home Office following attendance at a SSC. What the Home Office will do if original documents are sent over to them is to scan the documents to their systems and then return the originals also by post indicating that they have taken a copy. In such circumstances, it is this return letter from the Home Office that will indicate to some extent that an application is under consideration, however to some employers who are slow to undertake an Employer Check, this may simply not be good enough.

Failed asylum seekers submitting Further Submissions in person at UKVI Liverpool are routinely provided same day acknowledgement letters in relation to their Further Submissions. Considering that leave applicants under the new application process are expecting some sort of service having paid substantial Home Office application fees, it cannot be too much to ask and neither would it be much trouble for the Home Office to automatically provide standard written acknowledgment letters/emails referring to  pending applications on the same day as the personal appointment.

Problems with booking appointments

Currently, the UKVCAS website contains the following message:

We are currently experiencing high demand for appointments at our service points which means you may have to wait longer than usual for an available appointment.

We are working to ensure additional appointments are made available and apologise for any inconvenience caused. UKVI would like us to assure you that you have up to 45 working days to book an appointment once your application form has been submitted”.

Expecting applicants to hang about, waiting and constantly checking for a free appointment, prior to attending an appointment and having biometrics enrolled, adds to an applicant’s anxiety and prolongs what should be a short and simple online process required to obtain an appointment.

Rather than be met with periods of uncertainty, applicants are having to fork out further funds in relation to paid appointments so as to undertake the necessary action expeditiously in order to enable validity of their applications.

Conclusion

These are only just a few of some of the problems faced by applicants under the “new” application process.

Lip service is being paid to customer service.

The process, is in cases, a far cry from that announced by the Government on 2 November 2018:

The Immigration Minister Caroline Nokes said: We are committed to delivering a modern, convenient and easy to use service for UKVI customers.

These new service centres located across the country are a key part of our vision for a system that supports its customers and provides peace of mind whilst they are making an application”.

New Home Office Guidance: Automatic Zambrano refusals emptying EEA Regulations of usefulness

Whether the application was submitted prior to the recent Home Office Guidance which came into effect on 2 May 2019 or thereafter, Zambrano derivative residence card applications relying on the 2016 EEA Regulations, are being automatically refused. This is on the basis  that there is an Article 8 alternative route application by reference to the Immigration Rules/Appendix FM.

In practice, the indicators are that for cases caught by the policy guidance, no matter how well prepared the “Zambrano” application is or whether the applicant appears to fully satisfy the requirement of the Regulations, it will be refused.

A recent blog post of 7 May 2019 sets out the effect of the Guidance: “Home Office to refuse Zambrano applications under EEA Regs if Appendix FM/Article 8 alternative available”

Current form of refusals

Upon receiving the refusal decision, applicants shouldn’t expect engagement with any  prior submissions put forward, for example as to why the policy guidance might be grounded on an erroneous interpretation of Patel v SSHD [2017] EWCA Civ 2028 (13 December 2017, nor any issues on unfairness, etc.

Refusal decisions are to the following effect:

“Your application has been refused for the reasons set out in the enclosed notice.

You are applying on the basis that you are the primary carer of Miss……….

A Zambrano application centres on a person seeking to remain in the UK as the primary carer of a British citizen.

There is significant overlap with the right to respect for private and family life which is protected by Article 8 of the European Convention on Human Rights(ECHR).

Where a person wishes to remain in the UK on the basis of family life with a British citizen, they can make an application for leave to remain under Appendix FM to the Immigration Rules. A derivative right to reside is a right of last resort which only applies of a person has no other means to remain lawfully in the UK.

Your application is refused for the following reasons:

• (Since your most recent refused application in which Appendix FM was considered, there have been significant changes in your circumstances and it is open to you to re-apply under the UK’s domestic immigration law)

• (You have previously been granted LTR under the UK’s domestic immigration law. As your circumstances have not changed, you are invited to re-apply to continue on the route to settlement in the UK)

Next Steps

You have a right of appeal against this decision under regulation 36 of the 2016 Regulations.

This appeal may be brought before the First -tier Tribunal(Immigration and Asylum Chamber(IAC)) while you are in the UK and may continue while you are outside of the UK if necessary. You have 14calender days from the date this decision was sent to appeal.

If you do not wish to appeal but consider that you have further evidence to prove that you have a right of residence, you can make a further application”.

Patel before the Supreme Court

It is not apparent currently how correct the Home Office are in relying upon this guidance, which is quite recent. Patel was appealed to the Supreme Court and it is understood that the appeal was heard on 7 May 2019 and judgement is awaited. The new Guidance was published on 2 May 2019, only a few days before the appeal was heard. If the Supreme Court judgment does not bear upon the effect of the new Guidance, then no doubt some interesting litigation is very likely to ensue in future.

Options

Meanwhile, the following may be the options available following receipt of a refusal decision:

• appeal the refusal decision timely, raising effective grounds of appeal thereby preserving the continuing right to work granted by the Certificate of Application. Whilst awaiting listing of the appeal hearing date, re-visit  consideration of other options carefully without the pressures of needing to meet any deadlines.

• appeal the decision and argue that the Home Office interpretation of Patel as per the construction in their Guidance is incorrect, etc(but also provide reasons why resort has not been had to Appendix FM and why a fee waiver application cannot be made).

• appeal the refusal decision but potentially be met with a dismissal of the appeal by the Tribunal on the basis that the effect of the Patel case as interpreted by the Home Office is correct.

• submit an application to the Home Office relying on Appendix FM/Article 8 but apply for a few waiver, providing relevant documentation and information in this regards.

• submit an application to the Home Office relying on Appendix FM/Article 8 and provide the relevant Home Office application fees and NHS Surcharge

• consider judicial review proceedings, if the given right of appeal is not an adequate or sufficient remedy having regard to the issues in play

Zimbabwe’s humanitarian crisis and fresh claims: could the current dire living conditions give rise to a breach of Article 3 for returnees?

The humanitarian situation in Zimbabwe seems to be deteriorating.

Can it be argued that the current humanitarian conditions in Zimbabwe are such as to give rise to an argument that if a returnee is removed to Zimbabwe, he or she will be subject to treatment contrary to Article 3 of the ECHR?

There are now almost daily news reports drawing attention to a country that is beset with widespread hunger, severe water shortages/lack of water, poor sanitation, food shortages and power blackouts.

Does removal therefore to a situation of economic and social rights violations as well as dire living conditions lead to a breach of Article 3?

Article 3 of the European Convention provides that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Poor living conditions are capable of raising a claim under Article 3 if they reach a minimum level of severity, House of Lords in R v SSHD ex parte Adam, Limbuela and Tesema [2005] UKHL 66, at paragraph 7 Lord Bingham said: “… Treatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being. As in all article 3 cases, the treatment, to be proscribed, must achieve a minimum standard of severity, and I would accept that in a context such as this, not involving the deliberate infliction of pain or suffering, the threshold is a high one. …… But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative means of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life. ..”

It is important to note as a starting point that current country guidance caselaw referred to below concludes in effect that arguments on breaches of Article 3 affecting a returnee to Zimbabwe do not hold out much prospects of success- equally important however is the fact that that caselaw was published over 6years ago and took into account background evidence relating to circumstances that differ to a considerable extent than pertains now.

The Court of Appeal, in the case of SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940 (13 July 2012), found that ‘decision makers and tribunal judges are required to take Country Guidance determination into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so’ (paragraph 47).

Can it therefore now be argued that very strong grounds supported by cogent evidence, justify not following country guidance in CM and EM in relation to the Upper Tribunal’s conclusions as regards a breach of Article 3, with the consequence that the current dire conditions in Zimbabwe can be viewed as analogous to those that pertained at the time RN was considered?

In order to plough through with that argument, there needs at some point to be some appreciation of relevant complex casleaw on the issues, so as to be able to apply the relevant legal tests in meeting the high threshold that applies in these type of cases. In essence, whichever test is to be applied, it may be possible depending on the facts of the case, to sustain an argument that removal of a claimant to Zimbabwe currently is likely to result in a breach of Article 3.

Severe humanitarian conditions- what do Home Office Policy Instructions say?

The Home Office acknowledge that severe humanitarian conditions can in certain circumstances meet the Article 3 threshold. Home Office Instruction, Considering human rights claims, https://www.gov.uk/government/publications/considering-human-rights-claims-instruction, states at page 21:

Other severe humanitarian conditions meeting the Article 3 threshold

 There may be some cases (although any such cases are likely to be rare) where the general conditions in the country – for example, absence of water, food or basic shelter – are so poor that removal in itself could, in extreme cases, constitute ill treatment under Article 3. Decision makers will still need to consider how those conditions would impact upon the individual if removed. Any such cases, if granted, would qualify for Discretionary Leave rather than Humanitarian Protection (because they are not protection-related cases), but leave should not be granted without reference to a senior caseworker”.

Other Home Office Instructions, Humanitarian Protection, Version 5.0, 7 March 2017, provide at page 12:

General violence and other severe humanitarian conditions

The Article 3 threshold is a particularly high one. In NA v the UK, the European Court of Human Rights (ECtHR) found that a general situation of violence in the country of return will not normally mean that removing an individual would be a breach of Article 3. It would only be in the most extreme cases of general violence, where there was a real risk of serious harm simply by virtue of exposure to such violence.

There may be exceptional situations where conditions in the country, for example, absence of water, food or basic shelter, are unacceptable to the point that return in itself would constitute inhuman and degrading treatment for the individual concerned. Factors to be taken into account include age, gender, ill-health, the effect on children, other family circumstances, and available support structures. Caseworkers must consider that if the state is withholding these resources from the individual, whether it constitutes persecution for a Refugee Convention reason as well as a breach of Article 3 ECHR. If it amounts to persecution for a refugee convention reason, they are likely to be a refugee.

In Sufi and Elmi v the UK the ECtHR considered how Article 3 applies to the question of generalised violence and a severe humanitarian situation as a result of such violence. It found that following NA v the UK, the sole question for the court to consider is whether, in all the circumstances of the case before it, there were substantial grounds for believing that the person concerned, if returned, would face a real risk of treatment contrary to Article 3. If this is established then their removal will breach Article 3, regardless of whether the risk arises from general violence, a personal characteristic of the individual or combination of both. However, the court found that it is clear that not every situation of general violence will give rise to such a risk and on the contrary, made it clear that general violence would only be of sufficient intensity to create such a risk in the most extreme cases where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return.

The ECtHR went on to address the situation where dire humanitarian conditions, widespread displacement and the breakdown of social, political and economic infrastructures were predominantly due to direct or indirect actions of the parties to the conflict, who were using (in the case of Somalia, for example, at the time of the judgment) indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population. Following the approach adopted in M.S.S v Belgium and Greece, the court found that decision makers must consider a claimants’ ability to cater for their most basic needs, such as food, hygiene and shelter, their vulnerability to ill-treatment and the prospect of their situation improving within a reasonable time-frame”.

Current country guidance caselaw on Article 3

The Upper Tribunal in CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC), notified on 31 January 2013 concluded that the country guidance given by the Tribunal in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) on the position in Zimbabwe as at the end of January 2011 was not vitiated in any respect by the use made of anonymous evidence from certain sources in the Secretary of State’s Fact Finding Mission report of 2010. The Tribunal in EM was entitled to find that there had been a durable change since RN (Returnees) Zimbabwe CG [2008] UKAIT 00083. The Country Guidance in EM therefore did not require to be amended, as regards the position at that time. It was stated in CM that the only change to the EM Country Guidance that was necessary to be made was as regards the position as at the end of January 2011 arising from the judgments in RT (Zimbabwe) [2012] UKSC 38.

Accordingly, the Upper Tribunal in CM, re-stated the EM Country Guidance in its Headnote with the changes underlined in paragraph 5 of its Headnote.

Both headnotes to CM and EM also state relevantly: “The economy of Zimbabwe has markedly improved since the period considered in RN. The replacement of the Zimbabwean currency by the US dollar and the South African rand has ended the recent hyperinflation. The availability of food and other goods in shops has likewise improved, as has the availability of utilities in Harare. Although these improvements are not being felt by everyone, with 15% of the population still requiring food aid, there has not been any deterioration in the humanitarian situation since late 2008. Zimbabwe has a large informal economy, ranging from street traders to home-based enterprises, which (depending on the circumstances) returnees may be expected to enter”.

Having regard to current conditions, the economy of Zimbabwe has significantly deteriorated, the availability of food has not improved, inflation is rising and local currency was re-introduced in June 2019. The humanitarian situation, by reference to reports, has been progressively deteriorating.

What did the Upper Tribunal previously state in RN?

RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 (19 November 2008), was a country guidance case of the Upper Tribunal which for some several years led to the grant of refugee status for hundreds if not thousands of Zimbabwean claimants until it was overshadowed by EM and CM, however for now the relevance of this decision lies on the basis upon which it was concluded that return to Zimbabwe at that time, having regard to the evidence before the Tribunal, could depending on the facts of the case, lead to a breach of Article 3.

RN states as follows in material respects:

“5. General country conditions and living conditions for many Zimbabwean nationals have continued to deteriorate since the summer of 2007. Some may be subjected to a complete deprivation of the basic necessities of life, for example access to food aid, shelter and safe water, the cumulative effect of which is capable of enabling a claim to succeed under article 3 of the ECHR. But that will not always be the case and each claim must be determined upon its own facts.

…………………………………

248.We consider next whether the general country conditions in Zimbabwe, which are accepted to have deteriorated further since the Tribunal considered the evidence in the summer of 2007, are now so bad that there would be an infringement of the appellant’s rights under article 3 of the ECHR if she were required to return.

249.We do accept that discriminatory exclusion from access to food aid is capable itself of constituting persecution for a reason recognised by the Convention.

250.The collapse of the economy and agricultural production has led to severe food shortages. The supermarket shelves are empty so that even those who do have money to spend find it difficult to buy food. For the many others without work or access to any means of financial support access to food aid is essential. The evidence does now establish also that the government of Zimbabwe has used its control of the distribution of food aid as a political tool to the disadvantage of those thought to be potential supporters of the MDC. This discriminatory deprivation of food to perceived political opponents, taken together with the disruption of the efforts of NGOs to distribute food by means of the ban introduced in June 2008, amounts to persecution of those deprived access to this essential support.

251There is no doubt at all that the country conditions in Zimbabwe today are, for many of its citizens, harsh, and extremely difficult. There are many reports in the evidence before us that demonstrate the extent of the difficulties now facing ordinary Zimbabweans in their everyday living conditions. In the letter from the Foreign and Commonwealth Office produced by Mr Walker to which we referred above can be found this assessment:

The humanitarian situation in Zimbabwe is a major cause for concern for the international community. Zimbabwe is suffering from a major economic crisis. Unofficial estimates suggest inflation could now be as high as 100 million%. The economy, and particularly agricultural production, has shrunk by over 50% since 1996. Gold production is at its lowest levels for 90 years. Electricity is severely restricted, blackouts are common and water shortages last four days at a time in some areas. Basic food and fuel are difficult to obtain, with people turning to the black market where prices are too high for the majority. For example, a teacher’s monthly salary is less than the cost of a 10 kg bag of maize meal – which would last a small family about a week. The worst hit are the elderly caring for grand children orphaned by the country’s AIDS epidemic.

There has been a significant deterioration of the food supply situation in Zimbabwe over recent years. Factors such as drought and floods, low crop performance and limited irrigation have been exacerbated by the sharp economic decline. The annual crop and food assessment indicates that this year’s harvest was one of the worst in living memory and Zimbabwe is facing a deficit of over 1 million metric tons in cereals. In addition, Zimbabwe is suffering as a result of HIV and AIDS. The pandemic claims an estimated 2300 lives a week.”

252.It is not hard to add to the list of catastrophes. The heath and education services have collapsed. There is very little economic activity and for many no real prospect of employment. Even where work is available, the sheer scale of inflation means that the cost of travel to and from work often renders the effort pointless.

253.Mr Henderson refers in his skeleton argument and closing submissions to the approach taken by the Tribunal to this issue in HS and argues that the fresh evidence demonstrates that the regime does now bear responsibility for the desperate living conditions endured by many “ordinary” Zimbabweans, even if the Tribunal found that not to be the case in 2007. This is relevant to the article 3 threshold in this respect.

…………….

255.We take a similar view to the extent that each case will fall to be decided on its own facts. In some cases we can see that it will not be difficult for an appellant to succeed on this basis. The fresh evidence now before the Tribunal demonstrates that the state is responsible for the displacement of large numbers of people so as to render them homeless and, unless the misgivings expressed in the evidence before us about the very recent lifting of the ban on the distribution of food aid prove to be unfounded, the evidence demonstrates also that there has been a discriminatory deprivation of access to food aid which, plainly, is a deliberate policy decision of the state acting through its chosen agents. But the more recent evidence indicates that those agencies involved with the distribution of food aid, separate from that available to only some from the government, have once again been able to recommence operations, although subject to registration requirements.

256.On the other hand there will be many appellants who will be unable to make out such a case. Where a family has a home and access to some food provision, either from the state or an NGO or other agency, those harsh living conditions are unlikely to establish an infringement of article 3. Many Zimbabweans have relatives living abroad to whom they can look for support. Professor Ranger told us that money transfers were now difficult to arrange. In view of the collapsed economy and the damage to the banking system on account of hyperinflation, we do not find that difficult to accept. But he confirmed also in his oral evidence that there was no reason to believe that the process by which friends or relatives living abroad were able to arrange for groceries and other provisions to be ordered and paid for in neighbouring countries and delivered to homes in Zimbabwe had been disrupted.

257.Some Zimbabweans, especially those living close to the border, will be able to travel freely across into some neighbouring countries to trade, possibly seek employment, or to buy food and provisions. Some will be able to sustain themselves adequately on the basis of food aid and other relief from agencies able and willing to provide it. Thus, the position remains that each claim must be assessed on its own facts”

Although inflation is not as high as it was when RN was published, the current country conditions in Zimbabwe, by reference to readily obtainable evidence/news reports seem to indicate that the humanitarian crises resulting in severe food, water, electricity shortages has led to substantial deterioration in living conditions. The Zimbabwe regime is in large part responsible for the desperate living conditions endured by many ordinary Zimbabweans.

The “ Elmi & Sufi predominant causes” test versus the “ N exceptional circumstances” test

Relevant ECHR and domestic caselaw will need to be engaged with if to advance a claim of this nature based on a breach of Article 3. The position is neatly summarised by the Court of Appeal in their judgement in The Secretary of State for the Home Department v MA (Somalia) [2018] EWCA Civ 994 (02 May 2018):

1.The issues which we have to decide on this appeal include: …… whether Article 3 would be violated if a person to be returned is at risk of being subjected to living standards which fall below humanitarian standards in his country of origin…..”

 2.For the reasons given below, and in the light of the careful submissions that we have had on the important decision of the Court of Justice of the European Union (“CJEU”)…………, I have concluded that:

…………

(4) Article 3 is not normally violated by sending a refugee back to his country of origin where there is a risk that his living conditions will fall below humanitarian standards.

34.This Court held in Said that Article 3 was intended to protect persons from violations of their civil and political rights, not their social and economic rights. In summary, the return of a person who was not at risk of harm because of armed conflict or violence would not in the case of economic deprivation violate Article 3 unless the circumstances were such as those in N v UK [2005] 2 AC 296, where a person was in the terminal stages of illness and lack access to facilities for treatment for his illness in his country of origin. In Said, this Court analysed the case law in the following lengthy passage:

……………………………..

[13] The GS case concerned a number of appellants whose removal was resisted on medical grounds. Permission to appeal had been given in six cases of illegal entrants, rather than “health tourists”. The House of Lords had held in N v Secretary of State for the Home Department [2005] 2 AC 296 that art 3 of the Convention did not oblige a contracting state to provide aliens indefinitely with medical treatment which was unavailable in their home countries, even if the absence of such treatment on return would significantly shorten their lives. It concluded that art 3 could be extended to prevent removal only in very exceptional circumstances. That was where the present state of health of the person who was subject to expulsion was such that, on compelling humanitarian grounds, he ought not to be expelled unless it could be shown that the medical and social facilities were available to him in the receiving state to prevent acute suffering while he was dying. Despite N’s condition (AIDS for which she would be unlikely to obtain suitable treatment or family support in Uganda) she was not in a condition where art 3 would prevent her removal.

[14] The House of Lords considered the decision of the Strasbourg Court in D v United Kingdom (1997) 24 EHRR 423 where the proposed removal of a man to St Kitts was held to violate art 3. In N v United Kingdom 47 EHRR 885, which followed the House of Lords’ decision, the Strasbourg Court itself summarised why exceptionally that was so. The very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him even a basic level of food, shelter or social support: para [42]. It narrowly circumscribed the circumstances in which the principle in the D case would apply to an expulsion case of someone who was suffering from a life-threatening illness. Its overall conclusions are found in paras 42 to 45 of the judgment. In short:

i) Those subject to expulsion are not entitled to remain to continue to benefit from medical, social or other forms of assistance provided by the expelling state. The fact that he would find himself in reduced circumstances, or with reduced life expectancy, does not of itself give rise to breach of art 3;

ii) The decision to remove someone suffering from a serious physical or mental illness to inferior facilities in the receiving country would give rise to a violation of art 3 only in a very exceptional case, where the humanitarian grounds against removal are very compelling;

iii) The circumstances of D’s case provided such exceptional and compelling circumstances.

iv) There may other exceptional cases but the high threshold should be maintained because “the alleged future harm would emanate not from the intentional acts or omissions of public bodies or non-state bodies, but instead from the a naturally occurring illness and the lack of sufficient resources to deal with it;

v) The Convention is essentially concerned with civil and political rights. There is no obligation to alleviate disparities in the availability of treatment across the world through the provision of free and unlimited medical treatment;

vi) These principles apply to the expulsion of any person with a serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised treatment not available in the receiving state.

[15] The significance of point (iv) in the summary is that the paradigm case, as Laws LJ described it at para 39 of the GS case, in which art 3 prevents removal involves the necessary risk of being subject to an intentional act which constitutes torture, or inhuman or degrading treatment. Medical cases, and I would add cases where the complaint is that someone returned would be destitute on arrival, do not fall within that paradigm. Laws LJ reviewed the decisions of the Strasbourg Court in the case of MSS, Sufi and Elmi, SHH and Tarakhel which, in addition to the medical exception narrowly defined in the D and N cases, illuminate the limited circumstances in which it is appropriate to depart from that paradigm in art 3 cases.

[16] In the MSS case the Strasbourg Court decided that Belgium would violate the art 3 rights of MSS, an Afghan asylum seeker, were he to be returned to Greece under the Dublin Convention. That was because of the dire conditions in which he would live in Greece whilst his claim was considered. Responsibility for those conditions rested with the Greek state. In Sufi and Elmi the applicants were Somali nationals who had committed criminal offences in this country. The Secretary of State proposed to deport them. At para 282 of its judgment the court said:

If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or the state’s lack of resources to deal with a naturally occurring phenomenon, such as drought, the test in N v United Kingdom may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct or indirect actions of the parties to the conflict. The reports indicate that all parties to the conflict have employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population. This fact alone has resulted in widespread displacement and the breakdown of social, political and economic infrastructures. Moreover, the situation has been greatly exacerbated by al-Shabaab’s refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between one-third and one-half of all Somalis are living in a situation of serious deprivation.”

Al-Shabaab is an Islamist terrorist organisation. The state of affairs described in this extract from the judgment is precisely what has since improved; and it is the improvements which are reflected in the Somalia CG. But on the basis of the evidence as to the conflict at the time of the Sufi and Elmi the Strasbourg Court decided that the circumstances it had described meant that the approach in MSS, rather than N, should be followed.

[17] In para 57 of the GS case, Laws LJ described this as a “fork in the road, on the court’s own approach” between the two different types of case. He then referred to SHH v United Kingdom, concerning a severely disabled Afghan applicant, who sought to rely upon the MSS approach, but failed. His problems on return would result from inadequate social provision and want of resources. The approach in the N case was the correct one. Finally, he considered Tarakhel which was another case about returning asylum seekers under the Dublin Convention, this time to Italy, where there were said to be systemic deficiencies in reception conditions which were the responsibility of the Italian state. The MSS approach was applied.

[18] These cases demonstrate that to succeed in resisting removal on art 3 grounds on the basis of suggested poverty or deprivation on return which are not the responsibility of the receiving country or others in the sense described in para 282 of Sufi and Elmi, whether or not the feared deprivation is contributed to by a medical condition, the person liable to deportation must show circumstances which bring him within the approach of the Strasbourg Court in the D and N cases.

41.Moreover, on Mr Waite’s submission, the FTT failed to deal adequately with the question of remittances from abroad. First, the FTT had not considered the possibility that the respondent’s family in the UK would send him some money even if it was not enough to meet all his living expenses. Remittances from the UK were clearly a relevant factor: the Upper Tribunal in MOJ had heard evidence that in 2009 some £16m had been remitted from the UK to Somalia and there was no reason to think that that figure had diminished in subsequent years. Second, the FTT had not considered the possibility of the respondent taking advantage of the economic boom to which MOJ had referred (paragraph 407) and so gaining employment, which would enable him to support himself. In those circumstances, according to MOJ, he would not be a person who needed international protection. Third, the FTT had failed to consider that his financial position would be enhanced by the subvention of £1,500 that he would receive from the UK authorities (see paragraph 407(h), MOJ).

63.The analysis in Said, by which this Court is bound, is that there is no violation of Article 3 by reason only of a person being returned to a country which for economic reasons cannot provide him with basic living standards. Mr Sills however contends that that situation is brought about by conflict, which is recognised by the European Court of Human Rights as an exception to this analysis. It is true that there has historically been severe conflict in Somalia, but, on the basis of MOJ, that would not necessarily be the cause of deprivation if the respondent were returned to Somalia now. The evidence is that there is no present reason why a person, with support from his family and/or prospects of employment, should face unacceptable living standards.

69.The issue is whether the existing findings, so far as they go, should be preserved. I would accept the argument that it made decisions about the effect of return on the respondent which were not justified by the evidence. It concluded that he would have to live in conditions which fell below humanitarian conditions without considering whether he would be able to take advantage of Somalia’s “economic boom” and find remunerative employment. Nor did it consider whether some remittances could be made to meet some part of his living expenses in Mogadishu, as opposed to the full amount. I would, therefore, remit this matter to the FTT on the basis that it will need to make fresh findings about the respondent’s earning power, whether from remittances or earnings, if he returned to Mogadishu. In contrast, it will not need to revisit its conclusions about the significance of the respondent’s criminal offending, which have not been the subject of appeal by the Secretary of State”.

“N” test versus the “Sufi & Elmi” Test and Zimbabwe

• “N” test– If the dire humanitarian conditions in Zimbabwe are solely or even predominantly attributable to poverty or the state’s lack of resources to deal with a naturally occurring phenomenon, such as drought, the test in N v United Kingdom will be the appropriate one. The threshold is very high. In such circumstances, a decision to remove someone to inferior facilities in the receiving country would give rise to a violation of article 3 only in a very exceptional case, where the humanitarian grounds against removal are very compelling. To succeed in resisting removal on Article 3 grounds on the basis of suggested poverty or deprivation on return which are not the responsibility of the receiving country or others in the sense described in paragraph 282 of Sufi and Elmi, whether or not the feared deprivation is contributed to by a medical condition, the person liable to removal/deportation must show circumstances which bring him within the approach of the Strasbourg Court in the D and N cases.

• “Sufi & Elmi” test– If the dire humanitarian conditions/crisis in Zimbabwe can be argued to be predominantly due to the direct and indirect actions of the Zimbabwean ZANU(PF) Government, due to human actions, ie the intentional acts or omissions of public bodies or non-state bodies resulting in widespread breakdown of social and economic infrastructures, a Court may not consider the approach adopted in N v the United Kingdom to be appropriate. Instead the approach adopted in MSS v Belgium and Greece, which requires it to have regard to an applicant’s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame should apply. The Sufi and Elmi test therefore, placing reliance on MSS v Belgium and Greece applies a severity standard that is more liberal/less stringent since an “exceptional circumstances” requirement does not apply.

AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC), is a case where the Upper Tribunal gave country guidance also in the light of the decision of the European Court of Human Right in Sufi & Elmi v the United Kingdom [2011] ECHR 1045. Although the country guidance touched on matters concerning northern Somalia (ie, the semi-autonomous entity of Puntland and the self-proclaimed but internationally unrecognised state of Somaliland), it was primarily concerned with the situation pertaining in central and southern Somalia, including Mogadishu. The major issues concerning risk on return to central and southern Somalia were the armed conflict taking place between, on the one hand, the Transitional Federal Government (TFG) and the African Union Mission in Somalia (AMISOM) and, on the other, the militant Islamists known as Al-Shabab; the threat of harm posed by AlShabab and (to a much lesser extent) the TFG to those living in their respective areas of control; and the humanitarian crisis, amounting in large areas to famine, occasioned by the most sustained drought in the region for many decades.

The Upper Tribunal considered and concluded follows in AMM:

129.Viewed in this light, the finding at [282] of Sufi and Elmi makes jurisprudential sense. If the predominant cause of the poor living conditions faced by a person is due to human actions in the State in question, rather than to naturally occurring phenomena, coupled with a lack of resources to deal with those phenomena, then the high threshold set by N need not be reached. As we understood Mr Eicke, however, the respondent considers this jurisprudence to be novel, rather than “clear and consistent”. It would, he said, in effect be possible in many cases to ascribe a State’s inability to tackle phenomena such as drought or HIV illness as due to the inefficiency, incompetence or corruption of the government of that State. To introduce such considerations would, therefore, be to undermine the settled jurisprudence in N v United Kingdom. It would, in any event, undermine the judgments of the House of Lords in N v Secretary of State for the Home Department [2005] 2 AC 296, which were binding on this Tribunal, irrespective of what the ECtHR might subsequently have held.

130.Whilst we note Mr Eicke’s criticisms of the reasoning process and recognise that such an important issue might have benefited from fuller consideration than that given at [278] to [283] of Sufi and Elmi, we conclude that there is nothing in that judgment on this point that is problematic from a jurisprudential point of view. The requirement in [282] of predominant cause is such as at least substantially to reduce, if not eliminate, the dangers to which Mr Eicke referred. It would, for example, be difficult to hold that the prevalence of a disease such as HIV/AIDS across sub-Saharan Africa is predominantly due to the corruption or other misfeasance of the governments of the countries in that part of Africa. On the other hand, whilst no one disputes that cholera is a naturally occurring disease, there can be no doubt that a government which imprisons people in conditions that are so insanitary as to allow cholera to flourish, would be acting in violation of Article 3. The test of “predominant cause”, upon analysis, seems to us to be part of the settled jurisprudence of the ECtHR and underlies the approach in such cases as N vUK and Kalashnikov.

477. On the evidence before us, we conclude that it is not the actions of the parties to the conflict which have caused the state of famine in southern and central Somalia and the present international humanitarian crisis but, rather, the worst drought there has been for 60 years. Although the effects of the drought have been noticeable for some time, and discussed in previous country guidance cases, the predominant factor behind the decision of families to leave their homes and trek long distances, in often appalling conditions, either to Mogadishu or to neighbouring countries, has been because their livestock have perished, and their subsistence farming is no longer sufficient to support them. It is impossible to accept the suggestion that the parties to the conflict have caused a breakdown in infrastructure, which has led these families to leave.

479.In so finding we have had regard to the very latest evidence, including the observations of Professor Menkhaus, that Somaliland is also affected by the drought but has avoided famine because it has social peace and governance. But the requirement of “predominant cause” cannot be so easily satisfied; and the evidence points to that cause being a natural one, albeit helped on by human beings. Thus, for example, the UN Secretary General’s report referred to deforestation exacerbating peoples’ vulnerability to drought and flood.

480. This does not, however, mean that, because they are not a predominant cause, the direct and indirect actions of the parties to the conflict fall to be left out of account in deciding whether the humanitarian conditions in southern and central Somalia are such as to bring Article 3 into play. On the contrary, as we have already indicated, it seems to us that those actions have a very real role in the assessment of whether, in terms of the law as set out in N v United Kingdom, the present situation is one of those “very exceptional cases” in which humanitarian conditions trigger Article 3.

Looking at the evidence in this holistic way, we find that the present situation in southern and central Somalia is, indeed, one of those “very exceptional case”.

481.In so finding we have reminded ourselves of Mr Eicke’s submissions, as recorded in Part H, which were effectively reiterated in the respondent’s October written submissions, to the effect that one must beware of diluting the N test by bringing into account such things as the incompetence or corruption of a government of a State, as a factor in making its inhabitants more prone to the effects of climate and disease, than are those in the developed world. There are, regrettably, very many countries whose system of government could be said to aggravate the adverse effects of natural phenomena. But it is the very prevalence of such cases that, we consider, answers Mr Eicke’s objection: they are not capable of underpinning a finding that a “very exceptional” situation exists.

482.The contrast between such cases and that of southern and central Somalia is stark, as the evidence shows. A test founded on exceptionality must still be capable of being met; otherwise it is bogus. We consider that the widespread famine, unique to our planet at the present time, coupled with the exacerbating factors we have described, discloses a situation of sufficient exceptionality to cross the threshold set in N. It is this mix of factors that makes the situation exceptional, not the predominance of the parties’ actions that causes the threshold to be lowered.

487.However, we go further. Given the severe nature of the humanitarian crisis, worse even than when the ECtHR considered the position, a person who would in normal conditions have had the ability to go to his or her home village, which is unaffected by the fighting but which is within an area in which there has been a declaration of famine, should at present and as a general matter be assumed to face in that village the kind of desperate situation as is disclosed in the background evidence, with the result that, lacking means of sustenance, he or she would have to try to take refuge somewhere else, such as many thousands of others are doing. Leaving aside for this purpose the issue of Al-Shabab, we do not consider that even the possible availability of the United Kingdom Government money for return (as to which there is an evidential dispute) is likely materially to affect the position in this regard. In areas where there simply is no food, having money is unlikely to put a person in a better position; everyone in such areas is reasonably likely to be reliant on international aid. (We note Professor Menkhaus’ comment that “there is food on the market in much of Somalia”, but we are here considering a rural person, where the only food was from the land and that land is now barren.) Thus, although we have, like the Strasbourg Court, used the likelihood of ending up in an IDP camp as a general touchstone for Article 3 harm, the basic position is, rather, that the generality of those hypothetically removed to southern and central Somalia at the present time will face Article 3 violations by reason of the humanitarian conditions prevailing in the region”.

It may be arguable therefore that the predominant cause of the dire living conditions prevailing in Zimbabwe is not only as a result of the drought, which is a naturally occurring phenomenon but also due to human actions, ie the intentional acts or omissions of public bodies or non-state bodies. The Zimbabwean ZANU(PF) government has been unable to tackle the humanitarian circumstances due to inefficiency, incompetence or corruption. There appears to be official indifference in a situation of serious deprivation or want incompatible with human dignity. A Zimbabwean returnee with no family support or other associations, unable to obtain food aid and with no prospects of employment, would be returning to a state of extreme poverty, unable to cater for their most basic needs: food, hygiene and a place to live.

Caselaw and Gaza – evidence showed that the “predominant cause” test in a humanitarian crisis was arguable

In MI (Palestine) v Secretary of State for the Home Department [2018] EWCA Civ 1782 (31 July 2018), the Court of Appeal considered the case of a national of the Occupied Palestinian Territories who arrived in the United Kingdom after leaving Gaza. The Court of Appeal observed that the Tribunal Judge who dismissed the claimant’s appeal had noted that the Upper Tribunal in the Country Guidance case of HS (Palestinian-return to Gaza) Palestinian Territories CG [2011] UKUT 124 (IAC), in 2011 considered the situation against the background of the infrastructure of Gaza being significantly depleted with problems of access to electricity and clean water and limits to products brought into the territory, but still considered the circumstances had not reached a level where Article 3 was engaged. In dismissing MI’s appeal, the Judge commented that arguably little had changed since 2011 save for further conflict and destruction following a period of rebuilding and development. The Judge also noted that aid to rebuild the country was being brought in, albeit more slowly than anyone would like. The Tribunal Judge also observed that the claimant and his wife did have family in the Gaza Strip. Her family were UNRWA refugees and had access to healthcare facilities. The Judge stated that the country conditions were not good but did not in themselves engage Article 3. He said that those representing the claimant had accepted that the situation currently existing in the Gaza Strip did not reach the necessary threshold.

Before the Court of Appeal, the following was argued on behalf of the claimant:

• The Upper Tribunal Judge had misdirected himself in law in applying the test in N v SSHD since this was not a case where it was argued that the wife’s medical condition per se rendered their removal a breach of Article 3. Rather the claimant’s case was that whether the conditions in Gaza gave rise to a breach depends upon the characteristics of the individuals and a highly relevant characteristic was the state of the wife’s health; the predominant cause of the humanitarian crisis in Gaza was the conflict between Israel and Hamas so that the N test is not applicable: see Sufi & Elmi v United Kingdom (2012) 54 EHRR 9. Given that the dire humanitarian conditions in Gaza were a result of the direct and indirect actions of the parties to the conflict in Gaza, the Judge should have applied the test enunciated at paragraphs 282 and 283 of Sufi & Elmi. The Judge had also erroneously assumed that this was just a medical case whereas the appellant’s case was and had been that they faced inhuman and degrading treatment in Gaza as a result of the dire humanitarian conditions there and their personal circumstances, including her mental health, the fact that she was pregnant (the child was now nearly 3) and that the appellant’s family home in Gaza had been destroyed and the family lived in difficult conditions without electricity or clean water.

• In considering whether the removal of the claimant and his wife would breach Article 3, the Judge failed to consider cumulatively all the relevant factors, instead finding the country conditions in themselves did not engage Article 3 and the wife’s medical condition did not in itself engage Article 3.

• In concluding that in reality nothing had changed in Gaza since the Country Guidance case in 2011, the Judge failed to have proper regard to the country evidence before him, which demonstrated a significant deterioration in Gaza as a result of the conflict in 2014. Reliance was placed upon the evidence of the country conditions which had been before the Upper Tribunal for two purposes. First, that the consequences of the Israeli military operation known as Protective Edge in 2014 had been far more devastating in terms of the destruction of and damage to homes and infrastructure than previous military operations and had caused difficulties for UNRWA. Conditions were particularly bad for women and children. Second, the evidence demonstrated that the predominant cause of the dire humanitarian conditions in Gaza was the ongoing conflict between Israel and Hamas. The Judge had simply not analysed this country evidence properly. If he had done, he could not have concluded that little had changed in Gaza since the Country Guidance case in 2011. Furthermore, if he had analysed the country evidence properly, he could not have dealt with the case on the basis that the N test was applicable.

On behalf of the Secretary of State the following was argued:

• The decision of the Court of Appeal in Said v Secretary of State for the Home Department [2016] Imm AR 1084, demonstrated that it was only in very narrow circumstances that the Court would allow an Article 3 claim which departed from the paradigm. If there was to be such departure, it had to be on the basis of principle which here was that the approach adopted in Sufi & Elmi only applied where there was an element of intentionality on the part of the parties to the conflict. The al-Shabaab, an extremist organisation was corralling the population in certain areas and refusing them access to international aid. The situation in Palestine was not comparable not least because of the permanent presence of UNRWA to protect the refugee population. If the Sufi & Elmi approach were applied here, it would apply to other receiving states where there were dire humanitarian conditions.

• Reliance was placed upon the decision of the Strasbourg Court in SHH v United Kingdom (2013) 57 EHRR 18. That case concerned an Afghan national who was disabled in a rocket launch attack and came to the United Kingdom some four years later. The Court held that the N test applied to his Article 3 claim and distinguished Sufi & Elmi holding at [91] that although the situation in Afghanistan was very serious, it could not be attributed to the ongoing conflict. It was submitted on behalf of the Secretary of State that the same conclusion would have been reached here even if the Sufi & Elmi point had been raised.

The Court of Appeal noted that the case of MSS v Belgium and Greece and Sufi & Elmi v United Kingdom (2012) 54 EHRR 9 was of particular relevance in the present context. It was noted that in that case, the Government contended that the appropriate test for assessing whether the dire humanitarian conditions reached the Article 3 threshold was that set out in N v United Kingdom so that humanitarian conditions would only reach the threshold in very exceptional cases where the grounds against removal were compelling. The Strasbourg Court rejected that contention in the particular circumstances of that case because the humanitarian crisis in Somalia was predominantly due to the direct and indirect actions of the parties to the conflict there, so that the “very exceptional circumstances” test in N was not applicable.

The Court of Appeal also reiterated that in Sufi & Elmi, the court avowedly followed MSS (paragraph 283). In Sufi & Elmi, the critical factor was that the “crisis is predominantly due to the direct and indirect actions of the parties to the conflict”: paragraph 282. This was closer to the paradigm than the ill-treatment in question in MSS, for it must have involved deliberate acts. Thus in MSS and Sufi & Elmi the court looked for particular features which might bring the case within Article 3, and found them – in Greece’s legal duties and the applicant’s status as an asylum-seeker, and in the nature of the crisis in Somalia.

The Court of Appeal concluded as follows in MI (Palestine):

• The Deputy Upper Tribunal Judge failed to have regard to the approach adopted in Sufi & Elmi and therefore failed to consider properly what test should be applied to the facts of the present case. He only considered and applied the N test and therefore misdirected himself.

• It was noted that it had been submitted on behalf of the Secretary of State that, even if the Court reached that conclusion, the Court should dismiss the appeal because, as SHH and Said demonstrated, the less stringent Sufi & Elmi test would not apply in the present case as it could not be said that the dire humanitarian conditions in Gaza were such as were attributable to the direct and indirect actions of the parties to the conflict in Gaza or that the element of intentionality was present.

• The Court of Appeal however concluded that having considered the country evidence referred to on behalf of the claimant, the Court considered that it was sufficiently arguable that the conditions in Gaza are and were attributable to the direct and indirect actions of the parties to the conflict within the meaning of [282] of Sufi & Elmi and that there was an element of intentionality if that was a necessary ingredient before the approach in that case will be adopted.

• It was also considered that the Deputy Upper Tribunal Judge failed to have proper regard to the country evidence, in particular the evidence as to the seriously worsened position after the Israeli military operation in 2014.

• The Court of Appeal allowed the appeal and remitted the case for reconsideration of the evidence and the law by a differently constituted Upper Tribunal. It was stated that whether the case was one to which the Sufi & Elmi approach should apply would be a matter for that Upper Tribunal to decide.

• The Court of Appeal also stated that their attention was drawn to the fact that the Country Guidance in HS not only pre-dated the decision in Sufi & Elmi but also dealt with the position as it was up to 2010, some years before the 2014 military operation with its serious impact on the population and the infrastructure. It was noted that Counsel had suggested that perhaps a new Country Guidance case on Gaza should be considered. The Court of Appeal concluded that ultimately it was a matter for the Upper Tribunal, not the Court, although the Court could see the sense of the suggestion given that, on any view the Country Guidance in HS was somewhat out of date.

What a claimant might need to address to advance an Article 3 claim

Country guidance caselaw relating to Somalian and Iraqi cases in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) and AAH (Iraqi Kurds – internal relocation) Iraq CG UKUT 00212 (IAC), might, as summarised within the Headnotes give an indicator of the sort of matters that a claimant might need to address:

Explain why on returning to Harare, Bulawayo or their home area, after a period of absence, the returnee will be unable to look to his nuclear family, if he has one living in the city, for assistance in re-establishing himself and securing a livelihood. If the returnee has family members living in Zimbabwe that family may be able to accommodate him. In such circumstances the returnee would, in general, have sufficient assistance from the family so as to lead a “relatively normal life”, which would not be unduly harsh. It should nevertheless be important for decision-makers to determine the extent of any assistance likely to be provided by the family on a case by case basis.

If it is accepted that a person facing a return to Harare or Bulawayo or their home area after a period of absence has no nuclear family or close relatives in the city to assist him in re-establishing himself on return, there will need to be a careful assessment of all of the circumstances. These considerations will include, but are not limited to:

• circumstances in Harare or Bulawayo or their home area before departure;

• length of absence from Harare or Bulawayo or their home area;

• family or other associations to call upon in Harare or Bulawayo or their home area ;

• access to financial resources;

• prospects of securing a livelihood, whether that be employment or self employment;

• availability of remittances from abroad;

• means of support during the time spent in the United Kingdom;

• why his ability to fund the journey to the West no longer enables a claimant to secure financial support on return

If the returnee cannot live with a family member, show, following evidenced research the cost of rent in Harare or Bulawayo or their home area. The cost of renting may be beyond the returnee’s reach.

It may be that only those with no associations or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms.

In considering whether the returnee would be able to access basic necessities, account must be taken of the fact that failed asylum seekers are entitled to apply for a grant under the Voluntary Returns Scheme, which could give then access to £1500. Consideration should also be given to whether the returnee can obtain financial support from other sources such as (a) employment, (b) remittances from relatives abroad, (c) the availability of ad hoc charity or assistance from NGO’s.

Skills, education and experience: unskilled returnees who have been away from Zimbabwe for a substantial period of time may be at the greatest disadvantage, however a returnee may be expected to have regard to the informal sector, ie vending, street trading or home-based enterprises, which (depending on the circumstances) returnees may be expected to enter.

Finally, it is important to note that even where a returnee is expected to relocate to Harare or Bulawayo, CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059(IAC) itself states in its headnote:

“(8) Internal relocation from a rural area to Harare or (subject to what we have just said) Bulawayo is, in general, more realistic; but the socio-economic circumstances in which persons are reasonably likely to find themselves will need to be considered, in order to determine whether it would be unreasonable or unduly harsh to expect them to relocate”.