| Immigration — Appeal — Leave to enter and remain — Secretary of State refusing claimants’ applications — Claimants having no right to enter and remain under Immigration Rules — Appeals to adjudicator on human rights grounds — Whether adjudicator’s assessment of proportionality limited to review of Secretary of State’s decision — Whether adjudicator himself deciding on merits whether decision proportionate — Human Rights Act 1998 , Sch 1, Pt 1,art 8 — Immigration and Asylum Act 1999, s 65
Huang v Secretary of State for the Home Department; Kashmiri v Same [2007] UKHL 11
HL(E): Lord Bingham of Cornhill, Lord Hoffmann, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood: 21 March 2007
On an appeal under s 65 of the Immigration and Asylum Act 1999 from a refusal of leave to enter or remain in the United Kingdom, where the claimant did not qualify for entry under the Immigration Rules but relied on the family component of article 8 of the European Convention on Human Rights, the appellate immigration authority had to decide for itself,on up to date facts, whether the decision was lawful, as compatible with the Convention right, and, if it was not, the authority had to reverse it.
The House of Lords so stated when (1) dismissing the Home Secretary’s appeal from the Court of Appeal [2006] QB 1 which allowed an appeal by the claimant, Mei Ling Huang, from the Immigration Appeal Tribunal (Mr J Barnes and Mr DR Bremmer),dated 25 September 2003, which upheld the Home Secretary’s decision refusing her indefinite leave to remain in the United Kingdom, and (2) allowing an appeal by the claimant, Ali Kasmiri, from the dismissal by the Court of Appeal [2006] QB 1 of his appeal from the Immigration Appeal Tribunal (Mr J Barnes, Mrs AJF Cross De Chavannes and Mrs S Hewitt) which, on 18 May 2004, upheld the Home Secretary’s refusal of his asylum claim. Both cases were remitted to the Asylum and Immigration Tribunal.
LORD BINGHAM OF CORNHILL, giving the opinion of the Appellate Committee, referred to the domestic measures ensuring compliance with the United Kingdom’s obligations under the Convention, in particular, that public authorities, such as immigration officers, the appellate immigration authority and the courts, acted unlawfully if they did not act compatibly with an individual’s Convention rights. S 65, read purposively and in context, made clear that, on an appeal where the claimant did not qualify for leave under the Rules but relied on the family component of article 8, the appellate authority was itself to decide whether the refusal was unlawful as incompatible with the Convention right. It was incorrect to describe its role as a secondary, reviewing function which depended on establishing the misdirection, irrationality or procedural impropriety of the primary decision-maker. The authority’s first task was to investigate the facts, on an up-to-date basis, test the evidence and evaluate the nature and strength of the family bond; it would weigh the competing considerations on each side, and consider the factors in favour of the refusal with particular reference to justification in article 8(2). In assessing the proportionality of the decision, effect was to be given to the overriding need to strike a fair balance between the individual’s rights and the interests of the community. The ultimate question for the appellate authority, where family life could not reasonably be expected to be enjoyed elsewhere, was whether the refusal, taking account of all factors in its favour, prejudiced the claimant’s family life sufficiently seriously to breach his rights under article 8. Where it did the refusal was unlawful and the authority was required so to hold; but there was no additional requirement that a case should meet a test of exceptionality.
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