COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
MR JUSTICE COLLINS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAY
LORD JUSTICE MOORE-BICK
| R (Mrs A)
|- and -
Secretary of State for the Home Department
Jonathan Swift, Parishil Patel
(instructed by Treasury Solicitors) for the Respondent/Applicant
Hearing dates: 15 May 2007
Crown Copyright ©
Lord Justice May:
The Judge's judgment
"There is no good reason why the Home Office should take nearly two years to decide upon an application; and Mr Patel has submitted that there is no additional prejudice as a result of the delay because the situation, so far as the claimant is concerned, has not changed. That, in my view, is a submission which lacks merit. It certainly lacks humanity. It must be obvious that the longer the husband and wife and their family are able to remain in this country and put down roots in this country, the more hard it will be for them to be uprooted and for the family life to be interfered with in the way that is suggested.
The claimant's husband in his position would find it, to say the least, difficult, if not impossible, to uproot himself, to lose the position he has here, to go to Jamaica with no prospects of any means of livelihood. The alternative is that she goes and has to apply to come back here to join him. It is difficult to see on what basis such an application could reasonably be refused. One bears in mind the importance of not allowing people by acting unlawfully to jump the queue and to avoid the necessary immigration controls. But there is no reason in this case to believe that it would be reasonable to refuse in due course an application to join her husband here if one was made."
"Firm immigration control requires consistency of treatment between one aspiring immigrant and another. If the established rule is to the effect – as it is – that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would, in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin."
"Where removal is proposed in pursuance of a lawful immigration policy, question (4) will almost always fall to be answered affirmatively. This is because the right of sovereign states, subject to treaty obligations, to regulate the entry and expulsion of aliens is recognized in the Strasbourg jurisprudence (see Ullah  2 AC 323, 339, para 6) and implementation of a firm and orderly immigration policy is an important function of government in a modern democratic state. In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an adjudicator answering this question other than affirmatively.
The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might have been made by an adjudicator on appeal. In Secretary of State for the Home Department v Kacaj  Imm AR 213, 228, para 25, the Immigration Appeal Tribunal (Collins J, Mr CMG Ockelton and Mr J Freeman) observed that: 'Although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate.' In the present case, the Court of Appeal had not doubt  Imm AR 529,539, para 26, that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."
"The true position in our judgment is that the Human Rights Act 1998 and section 65(1) require the adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the rules.
… This approach recognizes that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive in all cases. There will be a residue of truly exceptional instances. In our respectful view such an approach is also reflected in Lord Bingham's words in R (Razgar) v Secretary of State for the Home Department  2 AC 368, para 20."
"We think, with respect, that there has been a tendency, both in the arguments addressed to the courts and in the judgments of the courts, to complicate and mystify what is not, in principle, a hard task to define, however difficult the task is, in practice, to perform. In describing it, we continue to assume that the applicant does not qualify for leave to enter or remain under the rules, and that reliance is placed on the family life component of Article 8."
"The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under Article 8(2). There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on. … The giving of weight to factors such as these is not, in our opinion, aptly described as deference; it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice."
"In an Article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, para 20. He was there expressing an expectation, shared with the immigration appeal tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under Article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test."
"(i) Delay in dealing with an application may, increasing the time that the claimant spends in this country, increase his ability to demonstrate family or private life bringing him within Article 8(1). That however is a question of fact, and to be treated as such.
(ii) The application to an Article 8 case of immigration policy will usually suffice without more to meet the requirements of Article 8(2) [Razgar]. Cases where the demands of immigration policy are not conclusive will be truly exceptional [Huang].
(iii) Where delay is relied on as a reason for not applying immigration policy, the distinction must be made between persons who have some potential right under immigration policy to be in this country (for instance, under marriage policy, as in Shala and Akaeke); and persons who have no such right.
(iv) In the former case, where it is sought to apply burdensome procedural rules to the consideration of the applicant's case, it may be inequitable in extreme cases, of national disgrace or of the system having broken down [Akaeke], to enforce those procedural rules [Shala; Akaeke].
(v) Where the applicant has no potential rights under specifically immigration law, and therefore has to rely on his rights under Article 8(1), delay in dealing with a previous claim for asylum will be a relevant factor under Article 8(2), but it must have very substantial effects if it is to influence the outcome [Strbac at paragraph § 25]."
The second sentence of Buxton LJ's (ii) may need modification in the light of Huang in the House of Lords so that it would read "The number of claimants not covered by the rules and supplementary directions but entitled to succeed under Article 8 will be a very small minority." I do not consider that for present purposes Huang in the House of Lords necessarily requires modification of Buxton LJ's subparagraph (iv).
Moore Bick LJ: