Neutral Citation Number: [2007] EWCA Civ 1302
Case No: C5/2006/2030
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
TH 00339-05
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/12/2007
Before :

LORD JUSTICE SEDLEY
LORD JUSTICE THOMAS
and
SIR PETER GIBSON
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Between :

	AB (JAMAICA)	Appellant	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	

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Mr J Adler (instructed by Messrs Ikie) for the Appellant
Mr P Patel (instructed by the Treasury Solicitors) for the Respondent

Hearing date: Tuesday 23 October 2007 
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Judgment
Lord Justice Sedley :

 Convention rights and departmental policies

1.	For a good many years before the Human Rights Act 1998 required it, departments of state had sought to ensure that delegated legislation and policies for which they were responsible were consistent with the United Kingdom’s international obligations under (among other treaties) the European Convention on Human Rights. One well-known area in which this happened was that of rules and policies governing the removal of persons who had established some degree of family life here and so might well come within the ambit of art. 8(1) of the Convention even though they had no entitlement to remain here under the Immigration Rules. While such removal might therefore be lawful for the purposes of art. 8(2), it would not necessarily be proportionate. So it was sensible (and today it is necessary) that discretionary decisions outside the Rules should be made within a Convention-compliant policy framework. A policy also helps, importantly, to ensure that like cases are treated alike. 
2.	This is why a Home Office policy, with accompanying instructions, was formulated for dealing with persons who, though liable to removal or deportation, had married a person settled here.  Depending on the circumstances of the particular case, such people were not necessarily to be removed or deported. The version of the policy upon which this appeal has been argued – DP 3/96 – was not the earliest but was adopted before the passing of the Human Rights Act 1998 and, perhaps surprisingly, has remained in place since. It now, however, coexists with article 8 of the Convention which, by virtue of s.6 of the Human Rights Act, the state is required to respect. 
3.	Art. 8 of the Convention provides: 
RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
1.	Everyone has the right to respect for his private and family life, his home and his correspondence.

2.	There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4.	The following parts of the policy are directly or indirectly relevant to the present case: 
Policy
2. Paragraph 364 of the Immigration Rules explain that deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained here without authority but that all the known relevant factors must be taken into account before a decision is reached.  These include:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connection with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence;
(vii) compassionate circumstance;
(viii) any representations.

3. Where persons do not qualify for leave to remain under the Immigration Rules and are to be considered for deportation, or where they are illegal entrants liable to removal, but seek nevertheless to remain on the basis of marriage in the United Kingdom, the following paragraphs of this guidance apply.
4. Where enforcement action is under consideration and the offender is married to someone settled here a judgment will need to be reached on the weight to be attached to the marriage as a compassionate factor.  Caseworkers should bear in mind that paragraph 284 of the Immigration Rules, which sets out the requirements to be met for an extension of stay as spouse of a person present and settled in the United Kingdom, specifically requires, among other things, a person to have a limited leave to remain here and to have not remained here in breach of the immigration laws, in order to obtain leave to remain on that basis.  Therefore, the fact that an offender is married to a person settled here does not give him/her any right to remain under the Rules. 

Marriages that pre—date enforcement action
5. As a general rule, deportation action under 3(5)(a) or (3)(5)(b) (in non-criminal cases) or illegal entry action should not normally be initiated in the following circumstances (but see notes below):
(a) where the subject has a genuine and subsisting marriage with someone settled here and the couple have lived together in this country continuously since their marriage for at least 2 years before the commencement of enforcement action;
and 
(b) it is unreasonable to expect the settled spouse to accompany his/her spouse on removal.

Notes 
(i) In this instruction, “settled” refers to British citizens who live in the United Kingdom or to other nationals who have ILE or ILR here.
(ii) In considering whether or not, under paragraph 5(b) above, it would be unreasonable for a settled spouse to accompany the subject of enforcement action on removal the onus rests with the settled spouse to make out a case with supporting evidence as to why it is unreasonable for him/her to live outside the United Kingdom.  Factors which caseworkers should take into account, if they are made known to them, will include whether the United Kingdom settled spouse:
(a) has very strong and close family ties in the United Kingdom such as older children from a previous relationship that form part of the family unit; or
(b) has been settled and living in the United Kingdom for at least the preceding 10 years; or
(c) suffers from ill-health and medical evidence conclusively shows that his/her life would be significantly impaired or endangered if he/she were to accompany his/her spouse on removal.
(v) This notice contains guidance as to the approach to be adopted in the generality of cases but it must be remembered that each case is to be decided on its individual merits and, for instance, a particularly poor immigration history may warrant the offender’s enforced departure from the UK notwithstanding the factors referred to above.

Criminal convictions 
6. In cases where someone liable to immigration control has family ties here which would normally benefit his/her under paragraph 4 above but has criminal convictions, the severity of the offence should be balanced against the strength of the family ties.  Serious crime which are punishable with imprisonment or a series of lesser crimes which show a propensity to re-offend, would normally outweigh the family ties.  A very poor immigration history may also be taken into account.  Caseworkers must use their judgment to decide what is reasonable in any individual case.

Children 
7. The presence of children with the right of abode in the UK (see note below) is a factor to be taken into account.  In cases involving children who have the right of abode, the crucial question is whether it is reasonable for the child to accompany his/her parents abroad.  Factors to be considered include:
(a) the age of the child (in most cases a child of 10 or younger could reasonably be expected to adapt to life abroad);
(b) serious ill-health for which treatment is not available in the country to which the family is going.

Marriages that post-date enforcement action
8. Where a person marries after the commencement of enforcement action removal should normally be enforced.  The criteria set out in paragraph 5 do not apply in such cases. ….

5.	This policy was in place in 2004, when the Home Office refused the application, and in 2005 when the immigration judge’s decision was promulgated. There has been no suggestion that its predecessor, DP 2/93, was materially different for present purposes. It will be more useful, therefore, to continue to focus on DP 3/96. It can be seen that the policy is not quite coextensive with the Convention right. 
6.	First, the effect of the policy is to discount the bare fact of a breach of immigration control if what I will call a qualifying marriage exists – that is to say a genuine and subsisting marriage to a person settled here, entered into at least two years before the initiation of any enforcement action. By using the word “normally”, however, the policy does not necessarily exclude a history of deception or evasion. Article 8(2), by contrast, permits the state to base its justification of the disruption of private or family life on any breach of immigration control. 
7.	Secondly, however, the onus which §5(b) of the policy places on the settled spouse to demonstrate undue hardship has no analogue in art. 8(2). The proportionality of a prima facie breach of the Convention right is to be gauged objectively on whatever evidence is available. So far as there is a burden of proof in relation to proportionality, counsel for the Home Secretary accepts that it rests on the state. 
8.	The implications of this mismatch can be more usefully examined in the context of the case before the court than in the abstract. 

The present case
9.	The appellant, a Jamaican citizen, came to this country in September 1998, when she was 32 years old, on a 6-month visitor’s visa. She overstayed. In June 1999 she was joined by her two daughters because her mother was ill and no longer able to look after them. They lived here with the appellant’s sister. Then in May 2000 she met Loron Brown, whom she married in July 2001. Mr Brown, now aged 44, is a British citizen who was born here and has lived here all his life. 
10.	Two months after her marriage to Mr Brown the appellant applied to the Home Office for leave to remain on the basis of her marriage to a person settled here. In other words, she identified herself as an overstayer and sought to regularise her position. The application was acknowledged in a letter of 6 November 2001 which also said that applications were taking up to six months to deal with and that the Home Office should not be pressed by the applicant. Thereafter nothing happened until in July 2004 – almost three years after she had applied for leave to remain - the appellant’s new solicitors wrote to the Home Office to ask when a decision might be reached. On 8 September 2004 a reply came, refusing the application. 
11.	Since it is at the heart of this appeal, it is right to set the letter out in full: 
Thank you for your letter of 13 July 2004.  Your client’s previous representatives, Messrs Dacres & Co submitted an application on behalf of your client who is seeking to remain in the United Kingdom on the basis of her marriage to Loron Samuel Brown which took place on 25 July 2001.

This application has not been considered by the Secretary of State personally, but by an official acting on his behalf.

As you know, your client and her dependents are considered to have remained in the United Kingdom unlawfully, and have now been served with form IS151A, notice to a person subject to administrative removal.  This notice advises your client/s of their liability to detention and summary removal from the United Kingdom under immigration legislation.

I have carefully considered whether it would be right to allow your client to remain but having considered all the circumstances of your client’s particular case it is concluded that there are insufficient compassionate circumstances to justify a concession on the grounds of the marriage.  It is considered that it would be reasonable to expect both parties to have been aware that your client’s precarious immigration status was such that the persistence of their marriage within the United Kingdom would, from the outset, be uncertain.  Moreover, although your client’s spouse is a British citizen, we believe that Mr Brown and your client could reasonably be expected to live in Jamaica.

Your client’s dependent children who arrived in the United Kingdom on 27 June 1999 are considered to have spent their formative years in Jamaica and would also be expected to adapt to life on return.  Although your client’s child’s material quality of life in Jamaica may not be to the same standard as it would be in the United Kingdom, this is the case with many children brought up in other countries and is not considered a sufficiently compelling factor.

In these circumstances we are not persuaded that the position of your client’s family constitutes a sufficiently compelling reason for making her an exception to the normal practice of removing those who have remained in the United Kingdom illegally.

We have also had regard to Article 8 of the ECHR, and would reject any claim that removing your client to Jamaica will amount to a breach of this article.  Article 8 dose not extend to a general obligation on the United Kingdom to respect the choice by married couples of a country of their matrimonial residence and to accept non-national spouses for settlement in the United Kingdom.  Your client is to be removed from the United Kingdom with her dependants.  Her spouse, Mr Brown is free to accompany her, at public expense if necessary, should this be their wish.  For the reasons given above, it is our view that it would be reasonable for her spouse to accompany your client.  In these circumstances there would be no interference with your client’s family life.  Equally he can remain in the United Kingdom and support any application she makes abroad to return in the proper manner as the spouse of a person settled here.

Whilst we accept that during your client’s time in the United Kingdom she may have established a private life, we are of the view that any interference can be justified in the circumstances of your client’s case.  The State has the right to control the entry of non-nationals into its territory, and Article 8 does not mean that an individual can choose where he/she wishes to enjoy his/her private life.  Moreover, your client’s private life has been established whilst she has been in this country unlawfully, in the knowledge that she has no right to be here and may be removed at any time.  For all these reasons, it is our view that any interference with your client’s family and/ or private life, is necessary and proportionate to the wider interest of the maintenance of an effective immigration policy.

In reaching this decision we have balanced your client’s rights against the wider rights and freedom of others and the general public interest.  Specifically, we have weighed up the extent of the possible interference with your client’s private/ family life, against the legitimate need to maintain an effectual national immigration policy.  With respect to the latter consideration your client’s failure to observe the immigration regulations has been taken into account.  In the light of the circumstances of your client’s particular case, it is considered that our actions are proportionate to the social need being fulfilled.  We do not therefore accept that the decision to proceed with your client’s removal from the United Kingdom would breach Article 8. 

Careful consideration has been given as to whether your client/s should qualify for Discretionary Leave in the United Kingdom but your client has not raised any issues which would give rise to such a grant of leave. 

Your client has now been served with form IS 151A informing your client of her immigration status and liability to detention and removal.  Your client’s application for leave to remain on the basis of marriage is refused and a decision has been made to remove her from the United Kingdom by way of directions under section 10(1)(a), (b) or (c) of the Immigration and Asylum Act 1999 (c.33) (removal of person unlawfully in the United Kingdom).  Your client may appeal against the decision to remove her under Section 82 of the Nationality, Immigration and Asylum Act 2002 on the basis of one or more of the grounds of appeal contained within the attached IS 151B, Notice of Decision.  Your client/s are entitled to remain in the United Kingdom whilst the appeal is pending. 

The appeal
12.	An appeal to the AIT was dismissed by an immigration judge (Mr R.J. Haynes) in April 2005. The following month a reconsideration was ordered, but a full tribunal (SIJ Freeman, IJ Roe and IJ Baines) in January 2006 held that there was no error of law in the initial determination. The chairman, however, granted permission to appeal to this court on the ground that “the interpretation of policy DP 3/96 may be arguable in the light of the subsequent decision in Baig [2005] EWCA Civ 1246”. In the event, Baig has played no significant part in the argument. 
13.	Without disrespect to the full tribunal, our focus, like theirs, has to be on the decision of IJ Haynes. He made his determination at a time when the decision of this court in Huang [2005] EWCA Civ 105 was taken to require proof of wholly exceptional circumstances if a removal was to be held disproportionate. He directed himself in this way: 
“In Huang the Court of Appeal reviewed earlier decisions and held that it is for the Adjudicator to see to the protection of individual fundamental rights which is the territory of the courts. Policy on the other hand is the particular territory of the elected powers in the state. Moreover the Human Rights Act and the appeals provisions require the Adjudicator to allow an appeal against removal or deportation brought on article 8 grounds if but only if he concludes that the case is so exceptional in its particular facts that the imperative of proportionality demands an outcome in the appellant’s favour notwithstanding that he cannot succeed under the Rules.”

He went on to assert that the burden of proof is on the appellant.

14.	The immigration judge’s conclusions should be set out in full: 
9. My evaluation of the evidence and findings of fact
9.1 This appellant is a citizen of Jamaica as are her daughters.  At the date of the hearing she was aged 38.  Her daughters were aged 16 and 13.  I found the appellant a credible witness when giving evidence.  I can find no evidence or basis upon which the criticisms levelled at the appellant and the suspicion that she had been working wholly unjustified.  Ms Chapman conceded that there was no basis upon which that criticism could be made.

9.2 I heard evidence from the appellant and from her husband Loron Samuel Brown.  The parties were married on 25 July 2001.  The appellant did not work.  Loron Brown was a British citizen.  He was born on 19 June 1963.  I found that the parties had established family life from the date of marriage.  This included the appellant, her husband and her two daughters.

9.3 I found that the appellant was an overstayer; her leave to remain was granted for six months on a visit visa.  Her two daughters similarly had overstayed.  I found there was merit in the comment made in the refusal letter but at the time of the marriage both the appellant and her husband knew that the appellant had no legitimate right to remain in the United Kingdom and that she was liable to removal at any time.  I found that feature was a relevant consideration in deciding whether removal would be a disproportionate interference with the parties’ family and private life.

9.4 The appellant did not work.  Her husband was employed by BP Express Shopping.  He produced payslips in conformation.

9.5 I had evidence presented to me that the appellant’s daughters were attending schools, Amanda the John Ruskin College and Monique the Catford Girls School.  Monique had written a letter in support of the appeal.  I considered carefully the impact of removal on the education of the children.  There is schooling provision in Jamaica available for these girls of which they could take advantage.  There was no evidence that they had exceptional educational needs.

9.6 There was no evidence presented to me that any of the parties to the appeal suffered from any ill health, mental or physical which gave cause for special consideration in that regard.  The appellant said she was suffering from a skin condition upon her right leg for which she was receiving treatment.  I did not consider that there was any relevant matter for consideration in this regard in respect of this appeal.

9.7 The question arises as to whether there are truly exceptional circumstances applying to this appellant and her daughters justifying the granting of the appeal to the point where I am satisfied that there will be a disproportionate interference with her family life if she and her daughters were returned to Jamaica.  Following the questions in ex parte Razgar clearly removal to Jamaica would be an interference with the exercise of the appellant’s right to respect for her private and family life.  She has been in the UK since 1997 – a period of nearly eight years.  She had married Loron Brown in 2001.  The marriage was therefore of nearly four years’ duration.

9.8 On the other hand there was no evidence that the appellant was living and working in an environment which was exceptional.  She was not in a key position vis-á- vis any individual or organisation.  To remove the appellant to Jamaica would mean that she would possibly lose the immediate contact with her husband.  Removal may put a strain on the appellants’ family and private life and arrangements but I do not find that there would be a strain to the point of the extreme.

9.9 Following the decided cases from the Courts giving guidance to Adjudicators I am satisfied that there is no truly exceptional circumstances applying to this appeal.  It would be open to the appellant to apply for entry clearance on return to Jamaica in the same way others are.  I find that such interference would be necessary in a democratic society being lawful within an immigration policy and envisaged within Article 8 provisions.

9.10 The point was made by the respondent in the refusal letter that it would not be unreasonable to expect the appellant’s husband to travel with the appellant and take up life in Jamaica.  That is an option which is available to this married couple and would be a viable one for them to consider for themselves.  He was able bodied and was employed in the UK.  There is no reason to believe that he would not be able to find employment in Jamaica if that was his wish.

9.11 On a total appraisal of the evidence I was satisfied that the interference in returning the appellant to Jamaica was proportionate to legitimate and public aims sought to be achieved by the legislation for immigration control.  There would be no breach of their rights under Article 8.

9.12 For these reasons I reject the appellant’s appeal under the human Rights Act.

15.	Although the better part of a page of the skeleton argument submitted by the appellant’s advocate contended that policy 3/96 had been overlooked by the Home Office decision-maker and that the appellant came within it, there is no reference anywhere in this determination to the policy save where it summarises the appellant’s argument as being that her application was “covered by the Home Office policy”. 
16.	On reconsideration the AIT said nothing about this, but took the view that the Home Office decision letter, while it too said nothing explicitly about the policy, had dealt in substance with its content by deciding that there was no good reason why, if the appellant and her daughters were removed, Mr Brown could not go with them: in other words, that §5(b) of the policy was not met, with the implication that §5(a) was. They went on: 
“…. Even if it had been for the immigration judge to consider, no complaint could be made by the appellant about the way in which he did so: as we have already said, he accepted her evidence, and Mr Brown’s: but, having done so, he went on to consider for himself at § 9.10 the question of whether it would be reasonable to expect him to go to Jamaica with her, and (though he does not say so in as many words) clearly to find that it would.”

17.	The totality of the immigration judge’s decision on Mr Brown’s position is to be found in §9.10, set out above. Mr Brown had attended to give evidence, had adopted his witness statement (a sketchy and largely argumentative document for which the appellant’s solicitors must accept responsibility), and had been asked nothing by way of cross-examination. On this cursory footing, a bona fide marriage to a British-born citizen, with two children dependent on it, entered into by the appellant as an overstayer but quickly owned up to and then allowed by Home Office inertia to continue for enough years to bring it within the policy, was to be either broken up or transported to a country which was under no obligation even to admit the husband and where there was no evidence, as opposed to supposition, that he was likely to find work or accommodation for himself and his family. 

The law
18.	The House of Lords in Januzi v Home Secretary [2006] UKHL 5 devote a long and detailed paragraph (§20) to what has to be established before an asylum-seeker can be expected to relocate in his or her country of origin. It is worth setting it out here, because, while the same range of issues will not necessarily arise, it shows the specificity with which a fact-finding tribunal must consider whether an enforced removal will create undue hardship, a question which is also critical to DP 3/96 and to art. 8(2). 

“….It is…. important, given the immense significance of the decisions they have to make, that decision-makers should have some guidance on the approach to reasonableness and undue harshness in this context. Valuable guidance is found in the UNHCR Guidelines on International Protection of 23 July 2003. In paragraph 7 II(a) the reasonableness analysis is approached by asking "Can the claimant, in the context of the country concerned, lead a relatively normal life without facing undue hardship?" and the comment is made: "If not, it would not be reasonable to expect the person to move there". In development of this analysis the guidelines address respect for human rights in paragraph 28:
"Respect for human rights 
Where respect for basic human rights standards, including in particular non-derogable rights, is clearly problematic, the proposed area cannot be considered a reasonable alternative. This does not mean that the deprivation of any civil, political or socio-economic human right in the proposed area will disqualify it from being an internal flight or relocation alternative. Rather, it requires, from a practical perspective, an assessment of whether the rights that will not be respected or protected are fundamental to the individual, such that the deprivation of those rights would be sufficiently harmful to render the area an unreasonable alternative." 
They then address economic survival in paragraphs 29-30:
"Economic survival 
The socio-economic conditions in the proposed area will be relevant in this part of the analysis. If the situation is such that the claimant will be unable to earn a living or to access accommodation, or where medical care cannot be provided or is clearly inadequate, the area may not be a reasonable alternative. It would be unreasonable, including from a human rights perspective, to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence. At the other end of the spectrum, a simple lowering of living standards or worsening of economic status may not be sufficient to reject a proposed area as unreasonable. Conditions in the area must be such that a relatively normal life can be led in the context of the country concerned. If, for instance, an individual would be without family links and unable to benefit from an informal social safety net, relocation may not be reasonable, unless the person would otherwise be able to sustain a relatively normal life at more than just a minimum subsistence level. 
If the person would be denied access to land, resources and protection in the proposed area because he or she does not belong to the dominant clan, tribe, ethnic, religious and/or cultural group, relocation there would not be reasonable. For example, in many parts of Africa, Asia and elsewhere, common ethnic, tribal, religious and/or cultural factors enable access to land, resources and protection. In such situations, it would not be reasonable to expect someone who does not belong to the dominant group, to take up residence there. A person should also not be required to relocate to areas, such as the slums of an urban area, where they would be required to live in conditions of severe hardship." 
These guidelines are, I think, helpful, concentrating attention as they do on the standards prevailing generally in the country of nationality. Helpful also is a passage on socio-economic factors in Storey, op cit, p 516 (footnotes omitted):
"Bearing in mind the frequency with which decision-makers suspect certain asylum seekers to be simply economic migrants, it is useful to examine the relevance to IFA claims of socio-economic factors. Again, terminology differs widely, but there seems to be broad agreement that if life for the individual claimant in an IFA would involve economic annihilation, utter destitution or existence below a bare subsistence level (Existenzminimum) or deny 'decent means of subsistence' that would be unreasonable. On the other end of the spectrum a simple lowering of living standards or worsening of economic status would not. What must be shown to be lacking is the real possibility to survive economically, given the particular circumstances of the individual concerned (language, knowledge, education, skills, previous stay or employment there, local ties, sex, civil status, age and life experience, family responsibilities, health; available or realisable assets, and so forth). Moreover, in the context of return, the possibility of avoidance of destitution by means of financial assistance from abroad, whether from relatives, friends or even governmental or non-governmental sources, cannot be excluded."

19.	In adapting this reasoning to a case like the present, the tribunal will be considering not returning someone to his or her country of origin but forcing someone lawfully settled here to choose between losing his family or migrating with them to a country which may not be not his own. DP 3/96, it must be recalled, embraces a wide spectrum of status in the word “settled”: it includes both British citizens living in the UK and nationals of other countries who have indefinite leave to enter or remain here. There can be a world of difference, depending on the particular case, between expecting a foreign national, albeit now settled here, to return with his family to his country of origin or move to another country, and expecting a British citizen who has lived here all his life and has an inalienable right of abode here to live and work and find accommodation in a foreign country or forfeit his marriage. This is why the guidance to caseworkers who have to apply DP 3/96 includes “the length of time in the UK” of the settled spouse. 

Failure to address the correct issues
20.	In substance, albeit not in form, Mr Brown was a party to the proceedings. It was as much his marriage as the appellant’s which was in jeopardy, and it was the impact of removal on him rather than on her which, given the lapse of years since the marriage, was now critical. From Strasbourg’s point of view, his Convention rights were as fully engaged as hers. He was entitled to something better than the cavalier treatment he received not only from the Home Office but, I regret to say, from the AIT. It cannot be permissible to give less than detailed and anxious consideration to the situation of a British citizen who has lived here all his life before it is held reasonable and proportionate to expect him to emigrate to a foreign country in order to keep his marriage intact. One finds no consideration given to any of these matters by the AIT at either stage. 
21.	For these reasons I consider the finding about Mr Brown’s ability to relocate to Jamaica to be untenable. 

Substituting exceptionality for proportionality
22.	As has been seen, the immigration judge, in common with most other immigration judges at the time of his decision, took the law to require wholly exceptional circumstances if removal was to be found proportionate. Even if he had gauged proportionality as explained by the House of Lords in Huang [2007] UKHL 11, §19-20, and by this court in such cases as AG (Eritrea) [2007] EWCA Civ 801, §34-7, his dismissive treatment of the burden which removal of his wife and her children would place on Mr Brown could not have passed muster. And this is most certainly not a case in which, had the correct test been applied, the outcome would have been the same. If anything – and I will come to this at the end of the judgment – the opposite is the case. 

The policy and the Convention
23.	This brings me back to the dichotomy to which I referred at the beginning of this judgment: a policy, freestanding at the time of its adoption in 1996, which uses one set of criteria, and a more recent Convention right which the policy was intended to prefigure but which contains different criteria. What, since the Human Rights Act came into force on 2 October 2000, is their correct relationship? 
24.	The groundrule is that no executive policy can lawfully contravene a Convention right. But that does not mean that policies cannot build upon or enhance Convention rights. This, however, does not make it equitable to allow an appellant who is an overstayer or is otherwise unlawfully here to cherry-pick the useful parts of DP 3/96 and discard the rest: here, for example, to rely on the immateriality of a simple breach of immigration control but to reject the burden on proof placed by the policy on the settled spouse. Counsel for the appellant accepts as much. But, for reasons I will come to, this does not make the policy irrelevant or inadmissible on an appeal. 
25.	There appears to be little if any authority on this question. It is common ground that a failure by the Home Secretary to apply his own policy will render his decision “not in accordance with the law” within ground (e) of the permissible grounds of appeal set out in s.84(1) of the Nationality, Immigration and Asylum Act 2002. But it is the Home Secretary’s contention that if a Home Office decision fails this test before the AIT, the immigration judge has no power to apply the policy and is limited to remitting the case so that the Home Office can do so. This is what the AIT in AG (Kosovo) v Home Secretary [2007]UKIAT 0082, §51, considered to be the situation. For the rest, Parishil Patel for the Home Secretary submits that the proper course of reasoning is to ask first whether the case comes within the Rules and if – like this case – it does not, to proceed to consider it under the Convention. As to whether, in doing this, any weight can be given to the Home Secretary’s own policy, he was unwilling to commit himself. 
26.	The starting point, as it seems to me, is that no principle of law makes inadmissible on an appeal to the AIT a policy used by the Home Secretary for the very purpose which the AIT is now addressing in the light of the Home Office’s submissions. Indeed, I find it troubling that the Home Office presenting officer does not appear herself to have drawn the immigration judge’s attention to the policy or to have sought to put forward a case consistent with it. Doing so might well have involved accepting that the Home Office did not regard a simple breach of immigration control, once there was a qualifying marriage, as by itself a sufficient reason for removal or deportation. It would also have involved pointing out that the Home Office did, however, regard insufficient proof of unreasonableness in relation to the settled spouse as justifying removal. 
27.	This might well have suggested that the bare fact of overstaying, at least when it was relatively brief and had been owned up to, should not be treated by the AIT as particularly significant, and certainly not as determinative, in assessing the proportionality of removal. It would without doubt have involved accepting that a genuine and subsisting marriage to a person settled here, albeit contracted at a time when the appellant should not have been here, ordinarily becomes over time a powerful contra-indicator of removal. It could not, however, have made it proper for the immigration judge to adopt a higher standard than art. 8(2) permits in gauging the reasonableness and hence the proportionality of removal. 
28.	If, having given full and structured consideration to the proportionality of a removal which was to affect both the overstayer and the settled spouse, the immigration judge formed the view that removal was proportionate but found too that the Home Office had failed to apply a policy which might realistically have resulted in non-removal, I would accept that remission to the Home Secretary would be the right course. Since, however, DP 3/96 is on balance tougher than art.8, the scenario is probably unreal. 
29.	 It follows in my view that the determination is further flawed by its failure to bring into the assessment of the proportionality of removing the appellant the fact that the executive as a matter of policy does not regard an overstayer who is now in a qualifying marriage as ordinarily liable to removal if the settled spouse cannot reasonably be expected to go too. The immigration judge appears to have directed himself that policy is for the executive (which is what I take him to have meant by “the elected powers in the state”) and not for him. For the reasons given above, he was right in the first half of this proposition but wrong in the second. 

Conclusion
30.	I would therefore allow the appeal. But in what form? Mr Patel wants it sent back to another immigration judge for redetermination. Mr Adler submits that the facts are so uniformly in his client’s favour that, properly approached, they can only result in an oversetting of the Home Secretary’s decision. 
31.	The breach of immigration control involved no fraud or concealment, was not protracted and was owned up to. The marriage was genuine, subsists and provides a family not only for Mr and Mrs Brown but for her two adolescent girls now settled here. Mr Brown is here not by leave but by right, was born here, has work and housing here and, so far as the evidence goes, has neither lived nor has accessible roots anywhere else. If, as is accepted, the obligation under art. 8(2) rested on the Home Secretary to show that it was proportionate to expect him to emigrate to Jamaica if he wanted to preserve his marriage, not only was there no evidence about the availability of work or accommodation in Jamaica but, when offered the opportunity, the Home Office presenting officer declined to ask Mr Brown any questions about this or anything else. 
32.	On the other side, it can be said that there was an undoubted breach of immigration control which, while not determinative, has to be evaluated by a tribunal of fact; that if it is found to be of significant weight, much may turn on the husband’s situation; and that the husband’s situation is so scantily described in his witness statement (“I have lived all my life in the UK… I have a stable job which I have been doing for over 15 years and the pay is good enough for me”) that it is not a foregone conclusion that removal of the appellant and her children will be held to be disproportionate. 
33.	But the easy course of sending the case back gives the Home Office a second chance, which it does not deserve, to get together a case which it signally failed to get together for the hearing. The paucity of evidence from Mr Brown of potential hardship does not matter if the burden was on the Home Office under art. 8(2) to show there was little or none. The significance of Mrs Brown’s breach of immigration control, after a lapse of years owed principally to the Home Office’s still unexplained inertia, could not on any fairminded view make it proportionate either to disrupt the family’s life here by the removal of her and her daughters to Jamaica, or to expect her husband, in order to keep the marriage intact, to go to a country where no evidence showed it to be reasonable to expect him to settle. 
34.	In this situation not only ought the AIT, in my respectful view, to have held on its first-stage consideration that the immigration judge had erred in law; it should have gone on, by way of second-stage reconsideration, to allow the appeal. It would not, I think, have been right for it to set the evidence at large again; but whether or not that might have been done by the AIT, it is no longer a fair option. On the evidence as it stood before the immigration judge, the appeal should have succeeded. I would enter judgment accordingly. 

Postscript
35.	We reserved our decision at the conclusion of argument and asked Mr Patel if, pending judgment, the Home Secretary would undertake not to remove Mrs Brown or her daughters. Having taken instructions, Mr Patel informed us that the Home Secretary does not give undertakings to the court. We therefore  made an order. 
36.	Our judgments, sent out in draft, expressed concern about this response. In answer, and before the judgments were handed down, Mr Patel submitted a note apologising if – incorrectly – the impression was given that the Home Secretary had a policy of never giving undertakings to the court, but recording that it is her practice not to do so where there is a statutory prohibition on removal pending appeal. Here, by virtue of s. 78 of the Nationality, Immigration and Asylum Act 2002, there is such a prohibition. It is regrettable that this was overlooked both by counsel and by the court, since it would have disposed of the issue without further argument. 
37.	I wish nevertheless to record my disquiet, which is shared by the other members of the court, about the initial response of the person instructing Mr Patel (a departmental official, we were told, and not a member of the Treasury Solcitor’s staff) to the court’s request. It is well within the knowledge and experience of all three of us that ministers of the Crown can and do give undertakings to the court in appropriate cases. At the point of time when an undertaking was sought by the court there was no apparent reason for the Home Office to refuse. The fact (see M v Home Office [1994] AC 377) that such undertakings, like court orders and statutory requirements, are enforceable is no reason at all why ministers should not give them: on the contrary, the amenability of ministers to justice is an important aspect of equality before the law. And it is consonant with the dignity of the Crown that, where an interim measure of this kind is appropriate, its ministers should undertake rather than be ordered. 
38.	In the circumstances, however, it is apparent that Mr Patel’s instructions were given to him in error, both as to the need for an undertaking and as to the propriety of giving one. In the light of Mr Patel’s explanation I cannot think that, had it been appropriate, an undertaking would not have been offered to the court. This much of the judgment should nevertheless be brought to the attention of Her Majesty’s Attorney-General and the Treasury Solicitor. 

Lord Justice Thomas:

39.	I agree with Sedley LJ that the determination is flawed for the reasons he has so clearly set out. In the exceptional circumstances of this case, I also agree that it would not be fair to send the matter back to the AIT and the right course is to determine the issue in this court in the way set out in Sedley LJ’s judgment. I agree too with his postscript. 

Sir Peter Gibson:

40.	I agree with both judgments.