Human rights – Asylum seekers – Proportionality - Remittal

TG (Central African Republic) v Secretary of State for the Home Department (2008): CA (Civ Div) (Lords Justice Buxton, Keene):15 July 2008

The appellant (G) appealed against a decision of the immigration judge ­dismissing G’s claim to remain in the UK pursuant to article 8 of the European Convention on Human Rights 1950.

G, a national of the Central African Republic, had entered the UK and claimed asylum. The respondent secretary of state had refused his claim. The matter eventually came before the Asylum and Immigration Tribunal for reconsideration, limited to issues arising under article 8 of the convention as to whether it would be proportional for G to apply for leave to enter the UK from abroad. The immigration judge dismissed G’s claim. It was subsequently accepted by the secretary of state that, in the light of the decision of C v Secretary of State for the Home Department [2008] UKHL 40, [2008] 1 WLR 1420, the immigration judge had approached the topic of proportionality on a legally flawed basis. The parties therefore agreed that G’s appeal should be allowed by consent but the question of the ­appropriate remedy remained for determination. The secretary of state contended that the matter should be remitted to the tribunal for ­determination. G sought an order ­stating that it would be disproportionate to remove him, rather than leaving that issue to the tribunal. He submitted that, as had occurred in C v Secretary of State for the Home Department, the facts were so stark that the Court of Appeal could determine the proportionality issue.

Held: (1) The facts of G’s case were not so stark that it was appropriate for the Court of Appeal to make the decision as to the proportionality of requiring G to leave the UK and apply for leave to enter from abroad. The facts in G’s case were different from those of C v Secretary of State for the Home Department because that case had concerned the removal of a mother and her child from the UK, whereas G’s case concerned only his removal, C v Secretary of State for the Home Department distinguished. No fact-finding tribunal had yet applied its mind properly to the issue of ­proportionality with the correct legal principles in mind, and it ought to be able to do so. The matter would, accordingly, be remitted to the tribunal for determination.

(2) (Per curiam) (Per Buxton LJ) It was not appropriate for an appellant to rely on the fact that in C v Secretary of State for the Home Department the matter was not remitted to argue in the Court of Appeal that a case should not be remitted to the tribunal. It was to be fully understood that it was not the role of the Court of Appeal to determine issues of proportionality where claims under article 8 were raised. The Court of Appeal would not expect to see such a remedy sought on the basis of C v Secretary of State for the Home Department in future cases where the secretary of state had agreed to remittal.

Appeal allowed.

Barnabas Lams (instructed by Scudamores) for the appellant; A Payne (instructed by Treasury Solicitor) for the respondent.