Case No: C5/2008/0909
Neutral Citation Number: [2008] EWCA Civ 1032
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL 
[AIT No: IA/11306/2007]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 2nd September 2008

Before:

LORD JUSTICE WILSON
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Between:

	JG (JAMAICA)
	Applicant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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Ms Amanda Weston (instructed by Messrs Glazer Delmar) appeared on behalf of the Applicant.
THE RESPONDENT DID NOT ATTEND AND WAS NOT REPRESENTED.

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Judgment
Lord Justice Wilson:

1.	Miss G, the applicant, applies for permission to appeal against an order of Senior Immigration Judge Eshun sitting in the Asylum and Immigration Tribunal on 27 February 2008.  She was conducting a reconsideration of an appeal which the applicant had made to the tribunal from the refusal of the Secretary of State to decline to return her and her son to Jamaica on the basis that it would infringe her rights under Article 8 of the European Convention on Human Rights 1950.  On 6 September 2007 Immigration Judge Flynn had granted the applicant’s appeal by reference to Article 8; but the Senior Immigration Judge had, following the reconsideration requested by the Secretary of State and directed to be heard by another Senior Immigration Judge, set aside IJ Flynn’s order and instead dismissed the applicant’s appeal.  

2.	I can deliver this judgment shortly because, by letter to the applicant’s solicitors dated 20 August 2008, enclosed in his letter to this court dated yesterday, the Treasury Solicitor, on behalf of the Secretary of State, concedes that the grounds of appeal now sought, by amendment, to be put forward on the applicant’s behalf should attract the permission of this court.  In his letter to the applicant’s solicitors, the Treasury Solicitor had proposed a consent order under which the appeal to this court should be allowed on the basis that the reconsideration of the appeal be remitted to the tribunal for its further determination.  The applicant’s solicitors have responded, however, that their aspiration in this court is a disposal which not only sets aside the determination of the Senior Immigration Judge but, without renewed reconsideration at tribunal level, restores the determination of the Immigration Judge.  In his letter to the court dated 1 September the Treasury Solicitor –inevitably -- makes clear that, notwithstanding that there is thus no agreement as to the overall disposal of the appeal, he stands by his concession that permission should be granted.  

3.	The applicant is a citizen of Jamaica aged 39.  She has been living in the UK since 2001, first as a visitor, then as a student but for the last five years without permission.  In about 2005 she cohabited with Mr W (“the father”) and, as a result of their relationship, a son, D, was born to her on 27 December 2005.  He is therefore now one year and eight months old.  About three months after his birth the applicant ceased to cohabit with the father and since then she has been caring for D, apparently with the assistance of her adult daughter, in London.  Nevertheless a striking feature of the case is the extent of the relationship which the father has wished to maintain with D, namely, notwithstanding D’s very young age, through occasions of contact which take place at least three times a week on average and which include quite lengthy visits on D’s part to the father’s home at weekends.  The father now lives with another woman and her child.

4.	The basis of the decision of the Immigration Judge to uphold the applicant’s appeal was the relationship between D and the father.  She accepted that, were the applicant to have to return to Jamaica, D would return with her; that, although the father is also Jamaican by ethnicity, it was impracticable to consider that he could also return to live in Jamaica; and that although the father travels and would continue to travel to Jamaica once a year in order to see his father, and, were D living there, also no doubt in order to see him, the separation would severely rupture what was already an unusually significant relationship between a baby and his non‑residential parent.  The Immigration Judge in effect noted that, in the light of the decision of the House of Lords in Huang (FC) v SSHD; Kashmiri (FC) v SSHD [2007] UKHL 11, [2007] 2 AC 167, there was no need to fit the case into a box marked “exceptional” before the applicant was entitled to succeed.  

5.	The Senior Immigration Judge went so far as to describe the Immigration Judge’s decision as “perverse”.  She complained that the Immigration Judge had concentrated her mind solely on the impact which the removal of the applicant would have on the relationship between D and the father.  She observed, in a passage which will need close scrutiny, that the Immigration Judge had failed to place into the balance the paucity of evidence about the relationship between the applicant and the father, still less the acknowledged fact that they were no longer cohabiting and had no longer cohabited for a period of about two years.  The Senior Immigration Judge said that the fact that the applicant and D had never lived with the father, and “therefore” the fact that the father could not accompany them to Jamaica, did not constitute an insurmountable obstacle to removal.  In a further, perhaps controversial, observation the Senior Immigration Judge stressed that it was the applicant, not D, who was facing removal from the U.K. at that point.  Admittedly the Senior Immigration Judge reflected upon the interruption to the frequency of contact between D and the father which would attend removal but considered that such would not lead to consequences of such gravity as to render the applicant’s removal disproportionate.

6.	By reference to the grounds of appeal, as originally drafted by counsel who had represented the applicant at the two hearings, Hallett LJ refused permission on the basis that the applicant was doing no more than to masquerade a challenge to findings of fact as a challenge of law.  Following her decision, however, the House of Lords delivered its opinions in the case of Beoku-Betts (FC) v SSHD [2008] UKHL 39, [2008] 3 WLR 166.  The opinion of Lord Brown, with which the other members of the House agreed, has led Ms Weston, coming freshly to this case, to draft proposed amended grounds of appeal, in which in particular she complains that the determination of the Senior Immigration Judge runs counter to his opinion.  The gist of that opinion is that, in an enquiry as to whether Article 8 precludes a person’s removal abroad, the position of those who share family life with that person may be considered directly and not just indirectly through the effect on that person of any such consequences for them.

7.	In the proposed Statement of Reasons for remittal to the tribunal, drafted by the Treasury Solicitor but -- as I have explained -- not accepted by the applicant’s solicitors, the Treasury Solicitor advanced the proposition that the Senior Immigration Judge’s determination had not been in accordance with the law stated in Beoku-Betts.  In my view there is no doubt that, reading her decision as a whole, she surveyed the effect of removal on D through the prism of its effect upon the applicant; and that, apparently illogically as well as arguably counter to that decision, she commingled her consideration of the effective rupture of the relationship between D and the father with that of the separate matter of the absence of any current relationship between the applicant and the father.  

8.	Thus I grant permission for the appeal to proceed.  

9.	I add this postscript with hesitation because I have not, of course, had sight of the arguments which the Secretary of State apparently proposes to marshal in support of his argument that the proper disposal of the appeal would be a remittal of the matter to the tribunal for renewed reconsideration.  After fairly careful, albeit provisional, thought, my postscript is that I do find it hard, in the light of the decision in Beoku-Betts, to discern any error of law in the Immigration Judge’s determination which would justify the tribunal’s renewed reconsideration of the appeal.  

Order: Application granted