Nhundu & Chiwera v Secretary of State for the Home Department (Zimbabwe) [2001] UKIAT 00613 (01 June 2001)
01TH00613, CC-21729-2000
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 15/03/2001
Date Determination notified: 01 June 2001
Before
MR C M G OCKELTON (DEPUTY PRESIDENT)
MR M W RAPINET
DR H H STOREY
Between
| Nhundu & Chiwera |
APPELLANT |
| and |
|
| Secretary of State for the Home Department |
RESPONDENT |
DETERMINATION AND REASONS
- This case is one of the first to raise
issues under section 65 of the Immigration and Asylum Act 1999. It
requires the Tribunal to examine in particular certain aspects of the
protection afforded by article 8 of the European Convention of Human
Rights to the right to respect for private and family life in the
context of a decision proposing removal of two appellants to Zimbabwe.
- The appellants, citizens of Zimbabwe,
have appealed with leave of the Tribunal against a determination of
Adjudicator, Mr K Kimnell, dismissing their appeal against the 14
October 2000 refusal of the Secretary of State to grant them leave to
enter on asylum grounds. Mr N Oakeshott of RLC appeared for the
appellant. Mr Erne appeared for the respondent.
- The two appellants currently aged 20 and
27 respectively are related as cousins. Both were orphaned at an early
age and brought up by their aunt, Agnes Hare at their home in Shashi, a
settlement area of Mvuma. That was until three years ago when she came
to the UK to live with her husband who is white. Both appellants
claimed to fear persecution at the hands of war veterans and ZANU (PF)
supporters who had threatened and pushed them around on a number of
occasions because of their involvement in and support for the MDC
(Movement for Democratic Change) particularly during the recent
elections. An additional if not the underlying motive on the part of
their political opponents was said to be racial antagonism towards
their aunt (Agnes Hare) for having married a white man living in the
United Kingdom.
- The adjudicator, however, dismissed
their asylum appeal. One of his findings was that he did not accept
that the treatment they had received in the past was sufficiently
serious or persistent enough to amount to persecution. He also
dismissed their appeals on human rights grounds. He saw no breach of
article 3 because they were unlikely to suffer maltreatment within the
scope of that article upon return. Nor did he accept that any breach of
article 8 was involved. Neither appellant in his view had an existing
family life tie with their aunt. Even if he was wrong about that, he
went on, he did not accept that the decisions refusing them leave to
enter on asylum grounds and proposing their removal to Zimbabwe were a
disproportionate interference with their right to respect for family
life.
- Mr Oakeshott did not pursue the appeal
against dismissal of the asylum appeal. Nor did he maintain any
challenge to the adjudicator's finding that the appellants would not
face a real risk of harm that would be sufficiently serious to come
within article 3. However he asked us to find that there was a
violation of article 8 of the European Convention on Human Rights
because there were existent private and family life ties between the
appellants and their aunt. He asked us to find that the adjudicator was
wrong to find the decision refusing them leave to enter and proposing
their removal to Zimbabwe did not amount to a disproportionate
interference with their right to respect for private and family life.
Whilst the adjudicator had said that they would not face serious harm,
he had found that they would face harm in the form of threats and some
physical harassment. This level of harm, albeit below the high
threshold of article 3, should have been given more weight in the
adjudicator's balancing exercise under article 8.
- Mr Erne asked the Tribunal to confirm
the adjudicator`s findings on the asylum claims and the claim under
article 3. Regarding article 8 he argued that, unlike article 3, it
could have no extra-territorial effect. In the context of a decision to
remove, no regard could be had to the non-serious types of harm that
would face the appellants upon return. As regards the appellants` claim
to have family life ties in the UK, he asked us to agree with the
findings of the adjudicator that there were no existing family life
ties. Furthermore, in evaluating such ties, it was not open to the
adjudicator or the Tribunal to take into account any developments since
the date of decision, i.e. since 14 October 2000. To take account of
any facts in existence since that date would be, he argued, to
contravene s.77(4) of the 1999 Act.
- The decisions appealed against in this
case were made on 14 October 2000. This being a date after 2 October
2000 they fall to be determined under sections 69 and 65 of the
Immigration and Asylum Act 1999.
The s. 69(1) asylum appeals
- The appellants do not challenge the
decision of the adjudicator to dismiss their asylum appeals. Since
however he refers back to his findings on the asylum appeal when
evaluating the human rights claims, it is salient to note what his
conclusions were on the former.
- At paragraph 39 he wrote:
"on the evidence as it emerged at the hearing I do not
accept that the appellants have any well-founded fear of persecution if
returned to Zimbabwe on account of their political opinion because of
the very peripheral nature of their involvement, the fact that they
have suffered no maltreatment in the past which amounts to Convention
persecution and the very important evidence they gave that the
appellants themselves do not really believe that their connection to
the MDC was anything other than secondary."
At paragraph 44 he wrote:
"Taking into account the lack of evidence of persecution
against whites generally in Zimbabwe, the tenuous connection of the
appellants in this case to their white British uncle and the absence of
treatment in the past which crossed the threshold of persecution, I
conclude that there is no well-founded fear of such persecution if they
were to return to Zimbabwe at the present time."
- Whilst the adjudicator accepted the
appellants as credible in general, he clearly did not accept that the
threats and harassment the appellants had faced in the past and were
likely to face in the future were quite as serious as described by the
appellants: in particular he did not accept that threats made against
them amounted to threats to kill.
The s.65 human rights appeals
- The decision against both appellants
was to refuse leave to enter on asylum grounds and to propose
directions for removal to Zimbabwe. Section 65(1) of the 1999 Act
states:
"A person who alleges that an authority has, in taking any
decision under the Immigration Acts relating to that person`s
entitlement to enter or remain in the United Kingdom, acted in breach
of his human rights may appeal to an adjudicator against that
decision..."
We are satisfied that the decisions in question were ones "relating
to [the appellants] entitlement to enter or remain in the United
Kingdom". We are further satisfied that under s.65(4) we have
jurisdiction to consider the question thus arising of whether the
adjudicator was correct to conclude that in taking these decisions the
respondent had not acted in breach of the appellants` human rights.
- In the grounds of appeal the
appellants based their human rights claims on two articles of the
European Convention on Human Rights: articles 3 and 8.
Article 3
- Before us Mr Oakeshott for the
appellants did not maintain the challenge to the adjudicator's
conclusion that article 3 had not been violated. However, since his
remaining grounds raising article 8 rely to some extent on the same
body of evidence evaluated by him when considering the asylum and
article 3 claims, it is important that we make some limited
observations about his treatment of this body of evidence.
- The crux of the adjudicator's findings
on the article 3 claim was that the appellants had not shown that upon
return to Zimbabwe they would face a real risk of torture or inhuman
and degrading treatment or punishment. He accepted that in the past
they had faced verbal threats and relatively mild intimidation (pushing
around) from Zanu (PF) war veterans. He also accepted that these types
of harm were on account of a Convention ground of political opinion (
possibly other grounds as well). In regard to the harms the two would
face on return, he appears to have accepted that they were likely to
continue but would stay at the same sub-article 3 level:
- His conclusions on the two appellants were as follows:
"The first appellant has been pushed and insulted, though
never injured, intermittently over a relatively short period and songs
have been sung outside his home. The appellant did not suffer any
injury at the time and there has been no lasting harm or damage either
physical or mental. In the circumstances of this appellant I find that
the treatment about which he has complained does not attain the minimum
level of severity to amount to either inhuman or degrading treatment.
In relation to the second appellant, Blessings Chiwera, he too
complains of insults and having been pushed. For reasons already given
I do not accept that he has been threatened with being killed. In
evidence he indicated that he had suffered rather less than he
described at interview because he said the worst that had happened to
him was personal abuse. He has never been injured."
- We consider that Mr Oakeshott was
right not to maintain any challenge to these conclusions. The
adjudicator's understanding of the article 3 test was entirely in
keeping with that of the European Court of Human Rights, as stated in
Ireland v UK (1979) 2 EHRR 25 para 162 and subsequent judgments.
- We would underline, however, that the
types of harms the adjudicator identified as likely to face the
appellants again clearly did amount to mental and physical harassment.
Albeit he found them less serious than they themselves described, he
did accept "that both appellants have been subjected to abuse and some
physical contact from war veterans or ZANU (PF) members." He also
accepted that these types of harm were aggravated by having a racial
motivation namely "disapproval of their aunt`s inter-racial marriage".
But he rejected the claim that their tormentors` threats amounted to a
threat to kill. Rather he found that the motive behind them was "?to
encourage them to leave the area". To summarise, whilst he did not find
a real risk of serious harm, he did find a real risk of a continuing
level of lesser harms designed to displace them from their home in
Shashi.
Article 8
- We turn next to Mr Erne`s preliminary
objection to the appellants` reliance on article 8. It was that this
article has no extraterritorial effect. That issue is to be addressed
in full in a forthcoming starred Tribunal determination. We can deal
with it very shortly here since Mr Erne himself accepted that he could
not cite any case either from Strasbourg or the UK in support. Given
his inability to support it, we can limit ourselves here to stating
that the notion that article 8 could not have any extraterritorial
effect in the sense contended for is plainly contrary to established
Strasbourg jurisprudence as well as to leading UK cases dealing with
article 8 in the context of decisions to deport or remove a person. In
any event the ground of appeal under s.65 is that the UK government has
acted in breach of the rights of appellants who are within the
territory of the United Kingdom. In such a context it is difficult to
see how extraterritoriality can even arise as an issue in the first
place.
- The adjudicator`s treatment of article
8 was not crystal-clear. He appears to have divided his treatment of it
into two parts. He first of all examined whether there was an existent
family life. Next he considered whether (assuming he was wrong in
concluding there was none) there had been a disproportionate
interference with the appellants` family life.
- His principal finding was that neither
of the appellants had a family life tie with their aunt, Agnes Hare. He
gave three main reasons. First, for the past three years "the only
contact" between the appellants and their aunt was her visit in
November 1999. Secondly, apart from provision of money for the air
tickets, there was "no evidence" that the appellants` aunt had
contributed financially. Thirdly, the first appellant was now eighteen
and therefore both appellants were adults.
- Later on in the same paragraph he
mentioned other factors: that they had family ties in Zimbabwe
especially with their grandmother; that there is no general obligation
under the Convention on state parties to admit family members of those
who are within their jurisdiction; that their aunt had no expectation
that the second appellant would join her as she had left him in the
care of her mother who was part of the same household. For reasons
which will become clear, he should only have treated these factors as
relevant to the issues of interference and proportionality; they were
not as such relevant to the question of whether or not there was an
existent family life between the appellants and their aunt.
- Having decided that there was no
family life but gone on nonetheless to consider whether there was a
disproportionate interference with their family life, he concluded
that:
"Given the tenuous connection between the appellants and
their aunt during the last three years and the existence of other
relatives in Zimbabwe, including the grandmother, with whom family life
can be enjoyed, balanced against the right of the state to control
immigration the refusal of leave in the case of these two adult men is
entirely proportionate. It has not been disputed by Mr Symonds that the
decision is in accordance with the law."
- In the opinion of the Tribunal the adjudicator fell into error in his approach to article 8.
- The approach taken by the European
Court of Human Rights establishes that article 8 is to be analysed
according to a step-by-step approach, asking first whether there is an
existent private or family life, second whether there is an
interference with that private or family life, third whether that
interference pursues a legitimate aim, fourth whether it is in
accordance with the law and finally whether it is proportionate.
Adopting this method of analysis enables us to make the following
observations.
Existent private or family life.
- The adjudicator erred in considering
that the appellants could only bring themselves within article 8 if
they could demonstrate an existent family life. Article 8 (1) reads:
"Everyone has the right to respect for his private and family life, his home and his correspondence"".
- Thus the adjudicator should also have
considered the question of whether there was existent private life or
family life. In this regard he should have borne in mind that the Court
views the private life concept as a broad one that includes not only
the idea of an "inner circle" in which individuals may live their
personal lives as they choose without interference from the state; it
also covers the right to develop one`s own personality and to create
and foster relationships with others: Niemietz v Germany (1993) 16 EHRR 97. In the context of immigration and asylum cases, the Court has come
to view the right to respect for private and family life as a composite
right. This approach requires the decision-maker to avoid restricting
himself to looking at the circumstances of "family life" and to take
into account also significant elements of the much wider sphere of
"private life": Chorfi v Belgium 7 August 1996, Bouchelkia v France
judgment of 29 January 1997(paragraph 41) , El Boujaidi v France 26
September 1997 and Mehemi v France 26 September 1997 and Nasri v France
(1996) 21 EHRR 458.
One consequence of this approach is that a person may be able to
establish a protected right under Article 8 either by reference to
significant elements of family life or significant elements of private
life or a mixture of both.
- We do not think, however (for reasons
given below), that on the facts of this case this error negated the
validity of his eventual findings.
- Applying this approach according to
the step-by-step method used by the Court, we first of all ask what
significant elements of a family life, if any, exist in this case?
- The adjudicator saw this question as
requiring focus on whether there were existent family ties between the
appellants on the one hand and their aunt on the other. We consider he
was correct to do so. Of course the appellants also had existing family
life ties with their grandmother in Zimbabwe who had looked after them
for the past three years. Possibly such ties extended to other persons
in that household. Given that the two were orphans who had been
subsequently brought up together in the same household, it is safe to
assume that between the two appellants there was also a family life tie
closely analogous to that between brothers. However, their appeal is
against a decision which includes a proposal to remove them from the
United Kingdom. In order for that appeal to succeed it is plain that
the relevant tie to be established has to be that between them and
their aunt in the UK.
- Before proceeding further, it is
necessary to address allegations made in the grounds of appeal that the
adjudicator had made certain factual errors. When considering contact
between the two appellants the adjudicator found there to have been
none over the past three years apart from the visit by their aunt in
November 1999. As a description of their recent physical contact that
was plainly correct. However, we would agree with Mr Oakeshott that he
was wrong to ignore evidence of other forms of contact. It was quite
evident that some other forms of contact there must have been, since
the adjudicator accepted that she had paid for their air tickets. And
he did not reject the evidence given by their aunt that she had being
"kept informed" about what was happening to the appellants. He had also
accepted that she had written one letter in particular to them and had
given them advice on how to buy the tickets to the UK and how to travel
once here. Nor did he anywhere question that in their eyes and hers she
was their "mother".
- In the grounds of appeal it was also
alleged that the adjudicator had wrongly overlooked the fact that the
appellants` aunt had been regularly sending them £100 a month to pay
for the essentials of living and for the second appellant`s school
fees. However we can find no reference to this in any of the written
statements or interview records before the adjudicator. Nor does it
seem to have been mentioned at the hearing. Nor has any firm evidence
being placed before us to support this claim. Accordingly we see no
error in the adjudicator's conclusion that apart from contributing
towards their journey to the UK , there was no satisfactory evidence of
financial assistance. Be that as it may, our conclusions on the
existence of family life and other aspects of the article 8 claim would
have been the same even if we had been satisfied that the aunt had
regularly supported the two appellants financially.
- It is clear from the three main
reasons the adjudicator gave for concluding there was no family life
that he adopted a factual approach, i.e. an approach which looks at
whether there is substance in fact to the claimed family life
relationships. Of course, had the tie between Agnes Hare and the second
appellant being a natural parent-child one, such an approach would have
been incorrect, since at the date of decision he was still a minor and
the European Court of Human Rights has often seen natural ties between
a parent and child as normally giving rise to family life ipso facto:
Berrehab v Netherlands (1989) 11 EHRR 322. However as the tie was not
of this kind, he was right to adopt a purely factual approach.
- The Court has applied its factual approach on a case-by-case basis. In Moustaquim v Belgium (1991) 13 EHRR 802
it did not consider that a five year separation between the twenty-one
year old applicant and his parents had ended their family life tie
because he had kept in touch by correspondence. In Gul v Switzerland (1996) 22 EHRR 93
a separation of over seven years between the applicant and his eight
year old son was likewise seen not to negate a family life tie because
the applicant had repeatedly asked the Swiss authorities to allow his
son to join him and he had visited him several times in Turkey. In
Nsona v Netherlands 28 November 1996 the Court chose to assume that
there existed family life ties between an orphan child and her aunt.
- In the light of Strasbourg
jurisprudence, we are satisfied that the adjudicator`s application of a
factual approach to the circumstances of the first appellant`s claim
was correct. Even accepting that he had grown up regarding his aunt as
his mother and that when she went to the UK she left both appellants to
be looked after by their grandmother, Cornelius had by then already
reached adulthood. He had also already entered the job market having
worked for a time as a labourer and a store attendant. Notwithstanding
that his aunt had visited in November 1999 and notwithstanding her
evident ongoing concern and affection for him and her financial efforts
to help him come to the UK, he is now a twenty seven year old in good
health who has already had experience in the employment field.
Accordingly the adjudicator was right to conclude that the family life
tie with his aunt has effectively being broken either some time before
or when she left for the UK. We are also satisfied that given his age,
his health and his experience of working life, his arrival in the UK
has not resulted in a family life tie being recreated between them. 34.
However in his application of the factual approach to the circumstances
of the second appellant he fell into error. Unlike Cornelius, Blessings
was still a minor at the time when his aunt left for the UK. In the
light of this fact other indicia of a de facto family relationship with
his aunt should have carried more weight than they did in the case of
the first appellant. They included: the fact that both of them were
orphans who had grown up regarding their aunt as their mother; that
even after she left she had been kept informed about their well-being;
that she had visited them in November 1999 and that she had taken
active steps, including in the form of financial assistance, to arrange
their visit to the UK. Thus we do not think that the family life tie
between him and his aunt had been broken when she left for the UK and
we think that when he arrived it was effectively continued.
- Accordingly the adjudicator was
correct to find no existent family ties between the first appellant and
the aunt but incorrect to find none between the second appellant and
the aunt.
- In order to obtain a full picture of
the appellants`s private and family life as protected by article 8, it
is also necessary to go on to consider whether there were significant
elements of private life present as well. We are bound to say on the
facts of this case that it is difficult to see that either appellant
could rely on any significant elements of private life . By the time
the decision to refuse them leave to enter was made the appellants had
only been in the UK a week and during that period were placed in
Oakington, not with their aunt. Not only has their time in the UK being
of short duration, there is no evidence of any ties with others in the
UK apart from their aunt. They had not gone to school or engaged in
employment.
- However, the fact that adjudicator
erred in concluding that in the case of the second appellant there were
no existent family life ties, did not fundamentally flaw his
determination. That is because, on the assumption that he was wrong on
this point, he went on to consider the further stages of article 8
analysis. Although he did not distinguish them as much as he should
have, it is quite clear that he considered the claim as to whether the
decisions appealed against amounted to a disproportionate interference
with the appellants` right to respect for family life. Dealing with
each stage ourselves we would make the following observations.
Interference
- Strasbourg cases dealing with the
application of article 8 to issues of immigration sometimes treat the
next issue arising as one of interference and sometimes as one of lack
of respect. The latter is concerned with a failure by the national
immigration authorities to fulfil its positive obligation to ensure
that the right to family life is guaranteed. Focus on lack of respect
rather than interference has been the approach of the Court in cases
which are clear-cut cases of applications for entry or admission.
However, the decision to refuse leave to enter in this case was
combined with a proposal to remove the appellants to Zimbabwe. Thereby
the appellants were in effect asking the authorities to comply with a
negative obligation not to remove them because this would result in
their being unable to further develop their family life with their aunt
here.
- In general the Court has stated that
the criteria to be applied when examining cases under either the lack
of respect or interference categories are essentially the same: see
Ahmut v Netherlands (1997) 24 EHRR 62. However, there has been one
signal difference in how the criteria have been applied in cases of
removal. The Court has been more easily satisfied that that type of
decision can amount to an interference: see Berrehab v Netherlands
(1989) 11 EHRR 322 Beldjoudi v France(1992) 14 EHRR 801, Nasri v France (1996) 21 EHRR 458
Only in unusual circumstances has it not seen a threat of removal to
constitute an interference. Thus in Nsona v Netherlands judgment of 28
November 1996 the Court found that there was no interference with the
applicant`s right to respect for family life because the aunt had
mislead the authorities in claiming that her niece was her daughter.
- The adjudicator did not specify
whether he regarded the relevant issue in this case as interference or
lack of respect. Having found no existent private and family life ties
between the first appellant and his aunt, it is only in respect of the
second appellant that it is necessary to proceed to this next stage of
examining whether there was an interference with or lack of respect for
the family life tie between him and his aunt.
- In the light of our analysis of
Strasbourg case law on the concept of interference in the context of a
removal decision, we are prepared to accept that the issue to be
examined is whether there has been an interference with, rather than a
lack of respect for, the second appellant`s family life caused by the
proposal to remove him to Zimbabwe.
- However we do not think on the facts
of this case that this decision can be described as an interference,
even taking full account of the position in Strasbourg case law that
decisions to remove are considered as an interference save in unusual
circumstances. Here the circumstances are unusual. For reasons already
given we are prepared to accept that prior to and as at the date of
decision there still existed a family life relationship between the two
of them. But prior to the second appellant`s arrival in the UK the
day-to-day relationship between him and his aunt based on living in the
same household had been ended of the aunt`s own volition, when she
decided to go to the UK to live with her British citizen husband. There
is no evidence that she did not choose to leave freely. Furthermore,
when the second appellant arrived, the decision to remove him was taken
before he had begun to live with her. In such circumstances we fail to
see how the removal decision can be described as a disruption of any
kind. 43. Even assuming, however, simply by virtue of being a removal
decision the decision in question did constitute an interference, we
would not therefore have allowed the second appellant`s appeal. 44.
There will only be a violation of article 8, however, if the
interference is not justified. Article 8(2) case law analyses
justifiability by reference to three further tests: pursuit of a
legitimate aim, in accordance with the law and proportionality.
- It will be recalled that even though
he rejected the claim that either appellant had an existent family
life, the adjudicator did nevertheless go on to consider hypothetically
whether the decision taken against both appellants amounted to an
unjustifiable interference under article 8(2). Given our earlier
conclusion that there was no private or family life tie between the
first appellant and his aunt, our own assessment of these further
requirements is limited to the decision made against the second
appellant. Legitimate aim
- The adjudicator did not expressly say
whether he considered that the removal decisions pursued a legitimate
aim, but we are satisfied that they did. The article 8(2) ground of
"prevention of disorder or crime" has regularly been held by the Court
to cover the maintenance of effective immigration controls. It may be
that the removal also pursued the legitimate aim of "economic
well-being of the country": see Bensaid v UK judgment of 6 February
2001.The appellants had originally come to the UK for the purposes of a
visit. Once their subsequent claim on asylum and human rights grounds
was found wanting, the immigration authorities were fully entitled to
proceed to propose directions for their removal.
In accordance with the law.
- As noted by the adjudicator it was not
in dispute between the parties that the decisions taken in this case
complied with the further requirement contained within article 8(2)
that the decision be "in accordance with the law".
Proportionality
- The test of proportionality is an
integral part of the requirement in article 8(2) that the interference
be "necessary in a democratic society". The adjudicator's reasons for
concluding that the decisions were proportionate were first of all the
tenuous connection between the appellants and their aunt during the
last three years, secondly the existence of other relatives in
Zimbabwe, including the grandmother with whom family life can be
enjoyed, and finally the countervailing right of the state to control
immigration.
- The proper approach enjoined by the
Strasbourg institutions to assessing the proportionality of
interferences with family life in the context of immigration and asylum
cases has been set out very clearly by the Court of Appeal in R (on the
application of Mahmood) v Secretary of State for the Home Department [2001] INLR 1.
Although oriented towards the situation of spouses, its treatment also
covers broader categories. After discussing leading cases in Strasbourg
including Abdulaziz v UK (1985) 7 EHRR 471, Poku v UK (1996) 22 EHRR CD 94 (a Commission decision) , Gul v Switzerland (1996) 22 EHRR 93, Berrehab v Netherlands (1988) 11 EHRR 322, Moustaquim v Belgium (1991) 13 EHRR 82 and Beljoudi v France (1991) 13 EHRR 82, the Master of the Rolls stated:
"From these decisions I have drawn the following
conclusions as to the approach of the Commission and the European Court
of Human Rights to the potential conflict between the respect for
family life and the enforcement of immigration controls:
(1) A State has a right under international law to control
the entry of non-nationals into its territory, subject always to its
treaty obligations. (2) Article 8 does not impose on a State any
general obligation to respect the choice of residence of a married
couple. (3) Removal or exclusion of one family member from a State
where other members of the family are lawfully resident will not
necessarily infringe article 8 provided that there are no
insurmountable obstacles to the family living together in the country
of origin of the family members excluded, even where this involves a
degree of hardship for some or all members of the family. (4) Article 8
is likely to be violated by the expulsion of a member of a family that
has been long established in a State if the circumstances are such that
it is not reasonable to expect the other members of the family to
follow that member expelled. (5) Knowledge on the part of one spouse at
the time of marriage that rights of residence of the other were
precarious militates against a finding that an order excluding the
latter spouse violates article 8. (6) Whether interference with family
rights is justified in the interest of controlling immigration will
depend on (i) the facts of the particular case and (ii) the
circumstances prevailing in the State whose action is impugned."
- With this summary of Strasbourg
jurisprudence by Lord Phillips MR in mind, we turn to the facts of the
present case, looking first at the situation in the UK and second at
the situation in the country of origin. As regards the quality of the
appellants` ties to their aunt in the UK, we find that even though we
would not go as far as the adjudicator in describing them as "tenuous",
the appellants had spent scarcely any time in the UK and, at the date
of decision, had not even lived with her here. In addition they had not
lived together with her for the previous three years, except during her
short visit in November 1999. Furthermore, as already noted, there were
no significant private life elements connecting them to the UK. They
had not gone to school in the UK, they had not worked here and there is
no evidence that they had - save perhaps for their aunt`s husband - any
other relatives or close friends here. Nor, having been refused leave
to enter, did they have lawful residence in the UK. Although their aunt
was lawfully resident, she had only lived in the UK for three years. As
such she did not have long-established ties through residence in the
UK. It is also apparent that both they and their aunt knew, when they
came to the UK, that their own immigration status was going to be
uncertain, unless they could succeed in their asylum claim. The second
appellant had not applied from abroad to join his aunt in the UK as a
minor child or dependent relative. The ties between the first appellant
and his aunt do not even constitute family life ties, and the second
appellant`s family life ties with the UK are relatively weak. There are
no significant elements of private life either. Hence the balancing
exercise which we are required to conduct under article 8 leads us to
attach much more weight to the legitimate interest of the immigration
authorities in controlling immigration.
- Turning to their situation in
Zimbabwe, the adjudicator correctly noted that there they had
significant private life and family life ties: they had been living
there for the past three years with their grandmother and other
relatives; they had done their schooling there; they had been active in
community life. Given the advanced age of their grandmother (she is
over 80) it was not likely that this tie would continue for much
longer, but on the other hand both appellants were at an age when it
could be expected that they would lead an independent life.
- Mr Oakeshott has urged us not to
approach the article 8 balancing exercise in the same way as in a
typical deportation case. There are, he submits, vital differences
stemming from the fact that both appellants would be returning to face
a continuing level of threats and harassment from the war veterans and
other ZANU (PF) supporters. In addition their aunt, whose own family
life interests under article 8 must also be respected, would not, he
continued, be able to return to Zimbabwe to resume her family life with
the appellants there. In developing these points he has invoked
Strasbourg cases that have established, as one component of the right
to respect for private life, the likely violation to the appellants'
"physical and moral integrity".
- We agree with Mr Oakeshott that the
likelihood of continuing threats and harassment animated by political
and racial motives alters the picture somewhat. Making use of the
terminology most commonly employed by the Strasbourg institutions, the
appellants are saying that there would be serious or insurmountable
obstacles to enjoyment of their private and family life in Zimbabwe.
- We would accept that in principle an
appellant whose private and family life ties in the UK were not on
their own strong enough to give rise to a violation of article 8 could
nevertheless succeed under that article if removal would expose him or
her to a real risk of significant harms or serious obstacles, albeit
harms falling below the article 3 threshold. 55. However on the facts
of this case we do not find that there are insurmountable obstacles to
the appellants enjoying either private and family life or the right to
respect for their home. The adjudicator's findings in relation to the
risk facing the appellants amounted in essence to a finding of a
continuing risk of low-level harassment in the form of threats and mild
physical intimidation. It is of course far from ideal that the
appellants should not be able to live without exposure to these types
of harm. But as was said by the Court in Soering v UK (1989) 11 EHRR 439:
"Article 1 [ which places on State parties the obligation
to secure the rights as set out in the Convention] cannot be read as
justifying a general principle to the effect that, notwithstanding its
extradition obligations, a Contracting State may not surrender an
individual unless satisfied that the conditions awaiting him in the
country of destination are in full accord with each of the safeguards
of the Convention".
- This proposition would seem to hold
good whether what is involved is extradition or removal. Article 8
being a qualified right, assessment of the risks posed by removal must
be balanced against the interests of the state and the wider community
in the maintenance of effective immigration control. It is legitimate
therefore for the state to remove an appellant unless the threat posed
to his article 8 rights would have the effect of nullifying those
rights completely. We note that even in respect of article 6, a right
less qualified in kind than article 8, Strasbourg has only been
prepared to consider a decision to remove a person contrary to this
right if in the country of origin he would face a " flagrant denial" of
the right to a fair trial: see M.A.R. v UK. 28038/95 (Dec) January 16
1997.
- In the present appeal we cannot see
that there would be any serious denial of their article 8 rights or any
other qualified rights. There was no evidence that the appellants would
face economic destitution or even economic disadvantage. It is true
that the first appellant was unemployed at the time he left Zimbabwe.
But he did not claim that he had been prevented by ZANU(PF) supporters
from working previously and he did not attribute his unemployment to
their harassment of him and his brother. There was no evidence that the
second appellant`s schooling had previously been affected or that his
own job prospects now he had left school would be in jeopardy. There is
no suggestion that the grandmother and other family members of her
household have been compelled to leave their home. Furthermore, the
objective country materials indicated that serious attacks on persons
and property by the war veterans and ZANU (PF) supporters were for the
most part directed against active MDC members and white farmers. Albeit
the adjudicator had found that the threats against the two appellants
were intended to force them to move, he had also found that they did
not go beyond verbal abuse and limited physical intimidation. Although
it appeared that both appellants would be at risk of further
difficulties with ZANU (PF) supporters if they played an active part in
the MDC, the evidence before the adjudicator was that their connection
to that party was peripheral.
- That brings us to Mr Oakeshott`s
contention that because of the climate of harassment the aunt "could
not reasonably go to live in Zimbabwe at present" to rejoin her family
there. We are aware that it was part of the aunt`s evidence that when
she returned to visit in November 1999 she did not know beforehand that
there would be dangers arising from the political situation. We are
prepared to accept that - subject to the qualification that those
dangers would not have exceeded those found to face the two appellants.
However, there is no evidence that she had left Zimbabwe because of any
fear of persecution or harassment. Furthermore, it has never been
suggested that she was living in the UK with her husband out of
necessity rather than choice.
- We find, therefore, that return for
these appellants would involve a degree of hardship, but would not give
rise to insurmountable obstacles such as would cause a violation of
article 8.
The issue of the appellants` right to physical and moral integrity as an aspect of the right to respect for private life
- The other way in which Mr Oakeshott
put his argument under article 8 was by reference to Strasbourg case
law which has elaborated the individual`s right to "physical and moral
integrity" and has recognised that the protection afforded by article 8
to an individual's physical and moral integrity can be wider than that
contemplated by article 3. In support Mr Oakeshott cited three cases:
Costello-Roberts v UK (1995) 19 EHRR 112, X and Y v Netherlands (1985)
8 EHRR 97 and Raninen v Finland (1998) EHRR 563. Since we heard these
appeals we have become aware of two further cases analysing the
physical and moral integrity notion: Bensaid v UK judgment of 6
February 2001 and Conka v Belgium judgment of 13 March 2001. The former
concerned an Algerian who was a schizophrenic suffering from a
psychotic illness. He claimed that requiring him to leave the UK
despite his serious medical condition would violate his physical and
moral integrity. Since both these cases essentially reaffirm principles
established in the cases relied upon by Mr Oakeshott, we decided there
was no need to invite the parties to make further specific submissions
on either of these cases.
- We do not find that this body of case
law assists Mr Oakeshott`s argument. In Raninen v Finland which
concerns a complaint about handcuffing of an applicant whilst in
detention, the Court noted:
"In the case under consideration, as noted above, the
applicant based his complaint under Article 8 on the same facts as that
under Article 3, which the Court has considered and found not to have
been established in essential aspects. In particular, it had not been
shown that the handcuffing had affected the applicant physically or
mentally or had been aimed at humiliating him In these circumstances
the Court does not consider that there are sufficient elements enabling
it to find that the treatment complained of entailed such adverse
effects on his physical or moral integrity as to constitute an
interference with the applicant`s right to respect for private life as
guaranteed by Article 8 of the Convention".
- In Bensaid v UK the Court`s conclusions were as follows:
"Turning to the present case the Court recalls that it has
found above that the risk of damage to the applicant`s health from
return to his country of origin was based on largely hypothetical
factors and that it was not substantiated that he would suffer inhuman
and degrading treatment. Nor in the circumstance has it been
established that his moral integrity would be substantially affected to
a degree falling within the scope of Article 8 of the Convention. Even
assuming that the dislocation caused to the applicant by removal from
the United Kingdom where he has lived for the last eleven years was to
be considered by itself as affecting his private life, in the context
of the relationships and support framework which he enjoyed there, the
Court considers that such interference may be regarded as complying
with the requirements of the second paragraph of Article 8, namely as a
measure "in accordance with the law", pursuing the aims of the
protection of the economic well-being of the country and the prevention
of disorder and crime, as well as being "necessary in a democratic
society" for those aims.
Accordingly it finds that the implementation of the decision to
remove the applicant to Algeria would not violate Article 8 of the
Convention".
- We accept that the circumstances of
this case are different from those obtaining in Raninen . Importantly,
the appellants` complaint under article 8 is based in part but not
wholly on the same facts as those under article 3. They rely in
addition on the strength of their ties with their aunt in the UK.
However, as already noted, we have found those ties to be relatively
weak and, judged as ties to the UK, of very short duration. As regards
the nature of the harms facing the appellants on return to Zimbabwe, we
have not found that they would be sufficiently detrimental physically
or mentally to violate either the appellants` private life or family
life. The adjudicator noted at paragraph 46 that : "The [first]
appellant did not suffer any injury at the time and there has been no
lasting harm or damage either physical or mental". He said similar
things about the situation of the second appellant. We have no reason
to doubt the accuracy of those findings. 64. The circumstances of this
case are also different from those in Bensaid. Of particular importance
is that whereas in that case the applicant had not substantiated that
he faced any real risk from either state or non-state agents, in the
present appeals the appellants have established that they face
low-level risks against which the police are unlikely to protect them.
However, taking the clear evidence that these risk would not
substantially affect the appellants, together with the short period
during which they have been in the UK, we consider that their right to
physical and moral integrity would not be subject to a disproportionate
interference.
The relevance of s.77(4)
- Mr Oakeshott has submitted that in
reaching our conclusions on this case we should not confine ourselves
to facts that were in existence at the date of decision. The difficulty
in the way of that submission lies in the wording of section 77,
sub-sections (3) and (4). They read:
"(3) In considering; (a) any ground mentioned in section
69; or (b) any question relating to the appellant`s rights under
Article 3 of the Human Rights Convention, the appellate authority may
take into account any evidence which it considers to be relevant to the
appeal (including evidence about matters arising after the date on
which the decision appealed against was taken).
(4)In considering any other ground, the appellate authority
may take into account only evidence ? (a) which was available to the
Secretary of State at the time when the decision appealed against was
taken; or (b) which relates to relevant facts as at that date."
- In view of the express inclusionary
words within sub-paragraph (3) of "evidence about matters arising after
the date on which the decision appealed against was taken" and the
express exclusionary words in sub-paragraph(4) ? "?may take into
account only evidence" - it would seem that the clear legislative
intent of these sub-paragraphs is to prevent reliance upon
post-decision facts outside the domain of article 3. But is the
legislative intent to wholly exclude such reliance?
- We have considered whether, if s.77(4)
were a wholly exclusionary provision, it could be reconciled with the
terms of section 7 of the Human Rights Act 1998. Section 7(1) entitles
a person to rely on Convention rights in relation to a claim not just
that a public authority has acted in a way made unlawful by section 6,
but also in relation to a claim that a public authority "proposes to
act". Furthermore the requirement in s.7(1) that the person must be a
victim of an unlawful act is expressly linked by s.7(7) to the meaning
of the term "victim" as given within the Convention. Strasbourg case
law on the "victim" concept extends it to persons who allege they are
subject to continuing violations of their Convention rights. In the
present appeals, the proposal to remove the two appellants plainly has
an effect continuing beyond the date on which it was made (14th
November 2000).
- We cannot see, however, that there is
any inconsistency between s. 77(4) of the 1999 Act and s. 7 of the 1998
Act. Section 7 of the 1998 Act cannot be applied in the abstract. By s.
7(1)(b) a person`s reliance on Convention rights can only be made in
the context of proceedings (in s.7(1)(b) "legal proceedings") in the
appropriate court or tribunal. In the context of proceedings before the
immigration appellate authorities we have no jurisdiction under the
1999 Act to consider any decision other than that made on 14th October
2000. Things would be different had the respondent substituted a later
decision confirming the 14th October one. But he has not. Thus it is
only in the s. 77(4) context of considering the relevance of
post-decision evidence that we can consider this evidence at all.
- We would accept, however, that if the
purport of s.77(4) was to wholly exclude reliance upon post-decision
facts insofar as they relate to a non-article 3 claim, then the section
is impossible to reconcile with Strasbourg jurisprudence on article 8.
To take a very recent example, from the Bensaid v UK case cited
earlier, the Court plainly had regard to matters arising after the
decision to refuse leave to enter (on 24 March 1997) and the setting of
removal directions (for 20 November 1998). It considered for example
the state of the applicant's mental illness in the light of 1999
medical reports and 1999 country information: see paras 20, 21, 31,35
and 44.
- However the exclusionary intent of
s.77(4) is clearly not absolute. Two exceptions are made. That
contained in sub-paragraph 4(a) does not arise in this case. The
exception contained in sub-paragraph 4(b), however, is in broad terms.
Its wording enables account to be taken of evidence about matters
arising after the date of decision so long as it "relates to relevant
facts as at that date". Whilst this would plainly exclude post-decision
evidence that is extraneous to the issues at stake in the appeal, it
does appear to us to include facts that cast light back upon the
situation as at the date of decision. Thus for example, in a marriage
case in which there was an issue concerning intention of the parties to
live together permanently, the fact that since marriage a couple had
lived together would be evidence relating to relevant facts at the date
of decision. Read thus, the provision accurately reflects pre- existing
case law on post-decision facts in immigration cases.
- Even giving full effect to the
sub-paragraph 4(b) exception (read thus), however, we cannot see that
it avails these appellants. We understand from Mr Oakeshott that since
mid-November 2000 the appellants have been residing with their aunt.
Given that they came to the UK with her help, that they had no other
contacts here and that they regarded her as their mother, we can accept
that such a development was reasonably foreseeable at the date of
decision. To that extent it casts light back on the family life
situation at the date of decision.
- But given the fact that both
appellants are now of adult age and that even as at the date of hearing
before us, they have lived together with their aunt for only a matter
of a few months, we are unable to find that such developments could
make any difference to the way in which the decision made in October
2000 stands to be assessed by the appellate authorities on human rights
grounds.
- For the above reasons the appeals against the determination of the adjudicator are dismissed.
DR H H STOREY (VICE-PRESIDENT)
