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21 JAN 2009

IMMIGRATION: VW (Uganda) v Secretary of State for the Home Department; AB (Somalia) v Secretary of State for the Home Department

(Court of Appeal; Mummery, Sedley and Wilson LJJ; 16 January 2009)

The Ugandan mother had entered the UK illegally, just before her 17th birthday, and had been granted exceptional leave to remain until she was 18. When she was 18 she applied for further leave to remain, having begun a relationship with a British citizen of Nigerian origin, with whom she had had a child who was also a British citizen. The immigration authorities decided to remove the mother to Uganda, dismissing the mother's appeal on the basis that there were no insurmountable obstacles to the family relocating to Uganda. The parents had agreed that if the mother were removed, the child would remain in the UK, with the father, as the risks of the child moving to Uganda would be too high. In the other case the father of 6 children had been granted exceptional leave to remain in the UK, having fled Somalia and then Kenya. The mother and children had made their way to Ethiopia, but had been refused leave to enter the UK on the basis that there were no insurmountable obstacles to the family settling in Ethiopia or Somalia.

In the first case the immigration judge had been quite wrong to consider that, even though removal of the mother was plainly going to interfere with family life, there was still a balancing exercise to be done before it could be decided that the interference would have consequences of sufficient gravity to engage Art 8. Further, the question under Art 8(2) was not whether the proposed interference was proportionate to the legitimate aims of the Secretary of State, but whether the removal of the mother, notwithstanding its effects on her and the other family members, was proportionate to the legitimate aims of immigration control. The immigration judge's determination contained no adequate reasoning to support a finding that it was reasonable to expect the whole family to relocate to Uganda; in fact it was incontestably unreasonable to expect the father, who had no connection whatever with Uganda, to go and live there as the price of keeping the family intact. The enforced break up of this family was not justified by the legitimate aims of immigration control, and the appeal would be allowed. In the second case there was no forced break up of the family, which had separated voluntarily. In the second case the decision maker had focused on the right question, and the appeal would be dismissed.

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