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The Court of Appeal has given the Asylum and Immigration Tribunal another good ticking off. The case is AG (Eritrea) v SSHD and, frankly, is probably of no interest whatsoever to anyone except geeky immigration lawyers such as myself. However, it’s another piece of objective proof that the current AIT is taking far too conservative and political an approach to legal issues. Given the option of taking a liberal or a conservative approach, the AIT almost invariably opts for the conservative option, sometimes really straining the words of the statute to achieve their end. The only exception seems to be in cases invovling a perceived attempt by the executive to fetter judicial decision making. What does it take to make the senior immigration judges realise that they are proactively conservative and often plain wrong?

The case potentially resolves a long running legal dispute about the nature of the test for finding that the removal from the United Kingdom of an individual is a disproportionate act under Article 8 of the European Convention on Human Rights.

To cut a long story shorter, the AIT was imposing a requirement that a case be ‘truly exceptional’ before it could be allowed. This was based on a throw-away remark by Lord Bingham in House of Lords case of Razgar. In the later House of Lords case of Huang, the Lords had to say that the AIT (and the Court of Appeal, in upholding the AIT’s approach), had misinterpreted Lord Bingham’s remarks. He wasn’t imposing a legal test or requirement, he was merely predicting that the numbers of cases that would be found to be disproportionate would be few in number.

The AIT ignored this and carried on, business as usual. Their line was that it made no practical difference to their decision making. It was basically a bunch of legal clever-clogs counting the numbers of angels on the head of a pin.

Not so, say the Court of Appeal now. The AIT has confused causes and consequences and is imposing an additional test that simply doesn’t exist in the scheme of Article 8. They need to give up on this idea of exceptionality and just get on with applying Article 8 properly.

Will it make any difference to the AIT? Will the senior immigration judges experience a Damascean conversion, grow beards, don sandals and start munching muesli? Or will they continue to prosecute their conservative agenda? The latter, of course.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.