Case No. UKUT-00286-(IAC)

57. In UE (Nigeria) & Ors v Secretary of State for the Home Department [2010] EWCA Civ 975, the Jjudge took into account the fact that the appellants had known for many years that they had no legal status in the United Kingdom and had taken no steps to bring themselves to the attention of the authorities for two-and-a-half years after their return from Ireland. In addition he took account of the effect of removal on each of the appellants in terms of their individual activities: in one case as a writer, poet and performer; in other cases on their educational progress and their work and cultural activities. The judge was not, however, prepared to put into the balancing exercise the value of the appellants' various activities to the community in the United Kingdom. The question for the Court of Appeal was whether it was relevant on any basis that the person in question is of value to the community in the United Kingdom, a value of which that community would be deprived if he were to be removed. 58. Sir David Keene described this as a separate consideration from the consequences for the appellant himself but concluded that it was a material and lawful factor: 9. It should be noted that this is a different question from asking what would be the impact on the individual in question of removing him, even though that question also would involve considering the extent to which he may have been involved in community activities. That latter question is directed at ascertaining the strength of the individual's own ties to this country and the degree, consequently, of private life which he has established here, whether in terms of friends, education, work or leisure activities. That latter question considers the extent to which his right to private life would be interfered with by removal, an issue which arises both under Article 8(1) and then if there would be such interference again under Article 8(2) as part of the balancing exercise. But the first question, that now under scrutiny, is dealing with the effect of his removal on the community in the United Kingdom… . 35. For my part, therefore, I conclude that it is open to this court to find that the loss of such public benefit is capable of being a relevant consideration when assessing the public interest side of proportionality under Article 8 and as a matter of principle I do so find. That is where this aspect comes into the proportionality exercise. 59. Richards LJ, though saying that there was very little between himself and Sir David Keene on the issue, did in fact articulate the approach is somewhat different terms: 40. Factors are relevant to the assessment of proportionality under Article 8 in such a case only in so far as they impact either on the weight to be given to the maintenance of effective immigration control or on the weight to be given to the individual's private life. It is not a question of dropping into the scales all aspects of the public interest for or against removal or anything that might be relevant to the exercise of a discretion under the statute or Immigration Rules. It is a more specific and targeted exercise. 41. For those reasons I consider that contribution to the community is not a freestanding or stand-alone factor to be put into the Article 8 balance as an independent consideration in its own right. It can affect the balance only in so far as it is relevant to the legitimate aim or the private life claim. 42. It is common ground that community activities may affect the strength of the private life claim, and this was something that the Immigration Judge had properly in mind in his determination. 43. As to the other side of the balance, in MA (Afghanistan) [2006] EWCA Civ 1440 at paragraph 28 Moses LJ suggested that "It may well be that the benefit of the community of the work performed by the applicant diminishes the weight to be given to the public interest in immigration control." So far as I can recall and can discern from the material we have been shown, that judgment was not drawn to the court's attention, and the possibility of contribution to the community being factored into the analysis in that way was not explored or even raised, in RU (Sri Lanka) [2008] EWCA Civ 753 . Faced with the issue in the present case, however, I would accept that the matters relied on here by way of contribution to the community are indeed capable in principle of affecting the weight to be given to the maintenance of effective immigration control. I agree that that public interest aim can and should be viewed sufficiently widely and flexibly to accommodate such considerations. But they do not have as obvious a bearing as, for example, delay by the Secretary of State in processing a claim or the applicability of a specific immigration policy favouring the applicant, and I doubt if they would in practice carry a lot of weight even on the relatively favourable facts of the present case. But I do agree that they should not be excluded from consideration altogether. 60. This line of reasoning must apply with equal force to Article 9 cases but there is this difference: s. 13 of the Human Rights Act provides the express requirement that in any question arising under the Human Rights Act that might affect the exercise by a religious organisation of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right. This is an express requirement of the religious community’s interests as distinct from those of the appellant.