West Law Report

Whole family affected by removal of immigrant

Posted in House of Lords (case), Times Law Report by mrkooenglish on July 21, 2008

From The TimesJuly 8, 2008

Whole family affected by removal of immigrant
Beoku-Betts v Secretary of State for the Home Department in the House of Lords
House of Lords

Published July 8, 2008

Beoku-Betts v Secretary of State for the Home Department

Before Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood

Speeches June 25, 2008

An adjudicator determining an alleged breach of an immigrant’s right to respect for his family life under article 8 of the European Convention on Human Rights was required to take account of the whole family and if removal would be disproportionate, all affected family members were victims.

The House of Lords so held when allowing an appeal by the claimant, Ernest Beoku-Betts, from the dismissal by the Court of Appeal ([2005] EWCA Civ 828), of his appeal from the Immigration Appeal Tribunal which, on September 5, 2003, had allowed the Home Secretary’s appeal from an adjudicator, who on February 4, 2003, had allowed his appeal from the refusal by the secretary of state to grant him indefinite leave to remain.

The Court of Appeal and the tribunal, adopting a narrow construction, concluded that section 65 of the Immigration and Asylum Act 1999 required consideration to be given to the effect of removal on the claimant himself, and that the impact on family members was to be taken into account only as it affected him.

Mr Richard Drabble, QC, and Ms Sonali Naik for the claimant; Ms Monica Carss-Frisk, QC and Mr Adam Robb for the Home Secretary.

LORD BROWN, rejecting the narrow construction, said that its disadvantages were manifest: what could be less convenient than to have the claimant’s article 8 rights taken into account in one proceeding, the section 65 appeal, and those of other family members in another, a separate claim under section 7 of the Human Rights Act 1998?

Was it not unlikely that the very legislation which introduced one-stop appeals, see section 77 of the 1999 Act, should have intended a narrow approach to section 65? Surely Parliament was intending to streamline and simplify proceedings.

Would it not be strange too that the Home Secretary and the European Court of Human Rights in Strasbourg should have to approach an article 8 claim to remain on one basis, the appellate authorities on another?

The statutory language did not compel the narrow construction; the wording was far from decisive and comfortably accommodated the wider construction sought by the claimant that, in determining whether his article 8 rights were breached, the immigration authorities were required to take into account the effect of his proposed removal on all members of the claimant’s family unit.

Together they enjoyed a single family life and whether removal interfered with it disproportionately had to be looked at in that context. If it did, then all affected family members were to be regarded as victims.

Lord Bingham, Lord Hope and Lord Scott agreed. Lady Hale delivered a concurring opinion.

Solicitors: Irving & Co, Camden Town; Treasury Solicitor.

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