(Court of Appeal; Ward, Neuberger and Gage LJJ; 31 January 2007)
The mother of two children with the right to remain in the UK, aged 22 and 16, sought indefinite leave to remain. The mother had initially entered under a visa obtained with false information; the mother was the second wife of the children's father, who had moved to the UK with his first wife many years before. The mother's six children had all moved to the UK over the years, living with the father until reaching adulthood. The father had now died, and his widow was unwilling for the two remaining stepchildren to stay with her. The Asylum and Immigration Tribunal rejected the mother's claim that her removal would be a disproportionate interference with her Art 8 rights, commenting that a properly structured application for leave to enter the UK by the mother, after she had returned to Bangladesh, ought to be accepted by an entry clearance officer.
When deciding whether the removal of the mother to Bangladesh would be disproportionate, that is whether her case was truly exceptional, the Tribunal should not have carried out or taken into account their own assessment of her prospects of coming back into the UK on an indefinite basis pursuant to an application for entry clearance made in Bangladesh. The case would be remitted to the Tribunal for reconsideration.