England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/07/2011

The Hon Mr Justice Burnett:

Introduction

1. Mr Kotecha and Mrs Das are both overstayers having entered the United Kingdom legally. Each married after their leave had expired. Each made an application for leave to remain in the United Kingdom as the spouse of, respectively, a British citizen and, a Bangladeshi national with indefinite leave to remain. Both applications were refused by the Secretary of State. There was no right of appeal because at the time when the applications were made neither applicant had extant leave to be in the United Kingdom. Thus the procedure open to both Mr Kotecha and Mrs Das was to leave the United Kingdom and make an application for an entry clearance on the same basis from abroad. Neither complains that the decision of the Secretary of State was unlawful under the relevant immigration rule, but each says that the requirement to leave the United Kingdom amounts to a breach of the rights protected by article 8 ECHR.
2. These two cases have been linked because in granting permission in Kotecha Mitting J said identified a possible conflict between the law on article 8 in the United Kingdom and as applied by the Strasbourg Court. In Das, although permission to apply for judicial review was refused on paper, Irwin J granted permission at an oral hearing, I am told on much the same basis.
3. Both Mr Malik, who appears for the claimants, and Miss Busch, who appears for the Secretary of State, submit that the domestic law has indeed parted company with the approach of the Strasbourg Court. The result, they suggest, is that the removal of individuals who are the partners of people present and settled in the United Kingdom has become almost impossible, at least in cases which do not involve those convicted of serious criminal offences. For that reason, whatever the outcome of these challenges, both sides have raised the possibility of a leapfrog appeal to the Supreme Court to enable that court to undertake a comprehensive review of the law relating to article 8 in removal cases.
4. Before turning to the legal issues which arise in these cases I shall set out the facts. It is necessary to do so comprehensively because any consideration of an article 8 claim requires close attention to the particular facts of the case. The House of Lords and Supreme Court have consistently emphasised the need for a careful evaluation of the individual circumstances in article 8 claims. But it is the common experience in this court, and also in the First Tier and Upper Tribunals, that the facts are set out in correspondence or in statements in a perfunctory fashion, which can make a careful and informed evaluation far from easy.

Kotecha Facts

5. Mr Kotecha is a citizen of Tanzania who was born on 9 October 1979. He came to the United Kingdom in October 2000. Thereafter he made a series of successful applications for leave to remain as a student. The last, which was granted on 21 December 2005, expired on 30 November 2006. He did not leave the United Kingdom or make any further application. On 5 December 2009 Mr Kotecha made an application for leave to remain as the spouse of a British citizen, Charlotte Cameron. They had married on 11 July 2009. The application was made on the appropriate form. Answers to questions on that form indicated that the couple had met in Basildon town centre in November 2006, commenced cohabitation in November 2007 and decided to marry in the first week of October 2008. Mr Kotecha's answers to questions on the form candidly admitted that he was working, which he should not have been. That admission was made in the context of dealing with the issue of whether the couple could support themselves without recourse to public funds. There are no children of the marriage. Both Mr Kotecha and his wife signed the standard declarations at the end of the form to attest to the fact that they remained married, were living together and intended to continue to live together.
6. The covering letter from Mr Kotecha's solicitors enclosed the documents required to support such an application, mostly to demonstrate that the couple were married, living together as man and wife and not in need of public funds. No further facts were supplied.
7. Paragraph 284 of the Immigration Rules governs applications for leave to remain in the United Kingdom as a spouse or civil partner of a person present or settled in the United Kingdom. One of the requirements is that the applicant has not remained in breach of immigration laws. It follows that the application was bound to be refused under paragraph 284. The refusal letter dated 22 February 2010 noted the immigration history but then continued:

"In taking this decision regards have been given to the UK's obligations under Article 8 of the ECHR. It is a well-established principle of law that every state has the right to control the entry of non-nationals into its territory. Article 8 does not give a person the automatic right to choose to pursue his or her family or private life in the UK.

In the House of Lords decision Huang & Kashmiri [2007] JK HL 11. The Lords established that the ultimate question to be asked in assessing the required test of proportionality is whether the refusal of leave to enter or remain, in circumstances where 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. Specifically we have weighed up the extent of the possible interference with your client's private life / family life, against the legitimate need to maintain an effective national immigration policy. In light of the circumstances of your client's particular case we consider that our actions are proportionate to the social need being fulfilled. Moreover your client's private life continued to be established while he remained in this country unlawfully, in the knowledge that he has no right to be here and may be removed at any time.

In the more recent case of the Hose of Lords decision in Beoku-betts V Secretary of State [2008] there are significant differences between the specifics of that case and the circumstances of your client. The appellant was appealing against removal to a country where there was political civil unrest at the time he fled, this was accepted. Your client from Tanzania, at the time of his entry into the UK, Tanzania was not going through political civil unrest at the time he fled. We do not therefore accept that the decision to proceed with your client's removal from the United Kingdom would breach Article 8.

The case of House of Lords in Chikwamba is also significantly different in that the Spouse was a refugee in the United Kingdom and could not return to the home country of Spouse, but in your client's case his wife is a British citizen, it is open to her to travel to Tanzania to accompany your client. If this is not possible then separation would be temporary as your client has an option to apply for an appropriate entry clearance abroad and can re-enter the UK." (quoted as written)

8. The decision letter went on to consider paragraph 395C of the Immigration Rules, which is concerned with factors to be taken into account before a decision to remove is made but concluded that there were no compelling or compassionate circumstances to justify allowing Mr Kotecha to remain. Neither did the Secretary of State consider that Mr Kotecha should be allowed to remain in the United Kingdom outside the rules. Removal action was not taken. Instead Mr Kotecha was told he must leave.
9. Mr Kotecha and his wife made further representations that being required to leave the United Kingdom would violate their article 8 rights. Affidavits were sworn by each on 15 March 2010. The Secretary of State was unmoved. These proceedings were issued on 21 April 2010.
10. The totality of the additional information put before the Secretary of State in support of the article 8 claim was as follows. Mr Kotecha said that his ties with the United Kingdom had grown to be very strong and that he dreaded being separated from his wife. He did not want to start a new life in Tanzania. He had eroded his ties with Tanzania. His friends were here, he was integrated here and spoke English. Mr Kotecha pointed out that he was respectable and law-abiding. In a section of his affidavit entitled 'Why I cannot leave the UK to make a fresh application', Mr Kotecha said this:

"12. I foresee a peaceful and blessed future life in United Kingdom. I consider the United Kingdom as my homeland. I cannot return to my native country just to complete a formality of making an application from there. I feel that if I am able to satisfy the rules from within the UK then it would be most unfair to simply ask me to go back to Tanzania for procedural reasons.

13. I have no family in Tanzania at all. Similarly my wife cannot return to Tanzania to live with me permanently as she has no connections to the Country and is by all means settled in the UK and it would be grossly unfair for her to have to leave all her family connections in order to settle with me in Tanzania.

14. It is absolutely incomprehensible for us to put our lives on hold and return to Tanzania. There is absolute no certainty to the time all this matter will take and we would be putting our entire future on the line." (quoted as written)

11. Charlotte Cameron (Mrs Kotecha) affirmed the content of her husband's affidavit and added this:

"I wish to reiterate that it is incomprehensible for me to leave the UK and settle in Tanzania. As outlined in my husband's affidavit, I am settled in the UK. My father is presently suffering from cancer and is undergoing related medical treatment. It is impossible for me to leave him at this stage. Furthermore, I am studying at a University in the UK."

No further detail was provided concerning her father's illness, or about her university course. The short details quoted above were all that were provided to the Secretary of State and indeed to this court. Both affidavits were attached to the claim form. I asked Mr Malik for information about the university course. The answer contained in an email after the end of the hearing confirmed that 'Mrs Kotecha is still at her university, pursuing a BSc degree in psychology.' Since the underlying application form for leave to remain signed in December 2009 suggested that the couple were living together and that she was working, I infer that the seat of learning is relatively local to the London Borough of Havering. Mr Malik also explained that Mrs Kotecha's father died in May this year.

12. It was common ground between the parties that the information available suggests that there is no reason to suppose that if Mr Kotecha made an application from Tanzania to join his wife in the United Kingdom it would fail. That is because, subject to any evidence emerging that the information provided is wrong, he fulfils the necessary criteria. In those circumstances, it seemed to me to be important to understand how long such an application would take. That is because the period during which both Mr and Mrs Kotecha might be in Tanzania, or for which they would be separated (the choice would be theirs if the Secretary of State were right), would provide the outer boundaries of the interference with their married life. Figures are publicly available for the time taken to deal with applications for entry clearance by British missions in many countries across the world. The latest information available from Tanzania is that 6% of visa processing is achieved within 5 days, 20% within 10 days, 46% within 15 days and 100% within 30 days. So the period of interference might be a month, but probably a good deal less. There is no question in this case of permanent separation of spouses, or even protracted separation, were Mr Kotecha to return to Tanzania to make his application.

Das Facts

13. Mrs Das is a citizen of Bangladesh who was born on 30 August 1983. She came to the United Kingdom in December 2006 as the dependent wife of Dipesh Chandra Das. He had leave to remain until 27 April 2009. She came to the United Kingdom with their son Niloy Kanti Das, who was born on 6 July 2005. In April 2007 Mr Das returned to Bangladesh for a visit but died there in May 2007. Nonetheless, Mrs Das remained in the United Kingdom with her son. Her husband's brother, Nripesh Chandra Das, was in this country. He was supportive of her after she was widowed. In due course she entered into a sexual relationship with him. A child was born to them on 7 March 2009. They married on 14 July 2009. At the time of these events Nripesh Das had indefinite leave to remain in the United Kingdom. After these proceedings were commenced Mr Das became a British citizen. Mrs Das made an application on 21 August 2009 for leave to remain as a spouse of a person present and settled in the United Kingdom.
14. Mrs Das' application form has not been produced in these proceedings. However, in the covering letter sent with the application, Mrs Das' solicitor summarised her case. In the two and a half years since her arrival, Mrs Das had rooted herself in the United Kingdom. She considered it her home, not simply the place in which she lived. She felt that she 'belonged' in the United Kingdom, and could not comprehend leaving. Her family, it was said, had no connections in Bangladesh. It was stressed that Mrs Das was of good character and was not a burden on the State. The family unit at the time of her application comprised two adults and two children. The adults were both Bangladeshi nationals as was the elder child. The baby was both a Bangladeshi national and a British citizen by birth.
15. The Secretary of State considered the application by reference to paragraph 284 of the Immigration Rules. As in Mr Kotecha's case, the application could not satisfy the requirements of that rule. The refusal letter, dated 12 April 2010 noted Mrs Das' immigration history and her domestic circumstances. Its author concluded:

"Your client can return to Bangladesh with her children, she is familiar with Bangladesh culture, her husband Mr Nripesh Chandra Das, has a settled status in the UK, and free to accompany her and children while she apply for an appropriate entry clearance to re enter the UK, if this is not possible then separation would be a temporary to their family life." (quoted as written)

The letter went on to consider article 8 ECHR and paragraph 395C of the Immigration Rules but concluded that neither assisted this claimant.

16. The central contention advanced on behalf of Mrs Das is that to require her to leave the country to make an application for re-entry would violate her article 8 rights and those of her family. Evidence was provided to the Secretary of State by the claimant and her husband in affidavits sworn on 12 May 2010. That evidence explained how Mrs Das had rooted herself in the United Kingdom and had eroded all her ties with Bangladesh. Her children were said to have 'absolutely no connection' with Bangladesh. Her elder son had integrated with the British way of life. The following reasons were advanced in the affidavit in support of the contention why Mrs Das should not be required to leave to make an application to re-enter:

"5. I foresee a peaceful and blessed future in United Kingdom. I consider the United Kingdom as my homeland. I cannot return to my native country just to complete a formality of making an application from there. I feel that if I am able to satisfy the rules from within the UK then it would be most unfair to simply ask me to go back to Bangladesh for procedural reasons.

6. My husband is employed here in the UK, his work and all his contacts are based in the UK. It will therefore not be possible for him to simply leave the UK as he no longer has any connections in Bangladesh.

7. It is further incomprehensible for us to put our lives on hold and return to Bangladesh even for me to make a fresh application form there as there is no certainty to the time all this matter will take and we would be putting our entire future on the line. This is practically impossible for us due to my husband's employment and my son's school." (quoted as written)

17. Mr Das confirmed his wife's evidential account and repeated her arguments. He emphasised that all his 'work and connections are based in the UK', although no detail was provided.
18. The Secretary of State was unmoved by these representations and maintained her decision. Proceedings were issued on 24 May 2010.
19. It was common ground before me that, on the assumption that the information provided by Mr and Mrs Das is accurate, she would qualify to enter the United Kingdom as a spouse should she make the application from Bangladesh. Information about the time taken for applications to be dealt with in Bangladesh was provided, as it had been for Tanzania. The process takes longer in Bangladesh: 20% of applications are dealt with within 30 days, 86% within 60 days, 93% within 90 days and 100% within 120 days. Therefore, the best estimate is that Mrs Das would probably be in Bangladesh for somewhere between one and two months, perhaps less, and with a longstop of just short of four months. There is no prospect of the family being broken up. The essential options would be for the whole family to go to Bangladesh whilst the application was made, for Mrs Das to go with the children but without her husband, or for Mrs Das to go alone to Bangladesh. Each of these options would result in dislocation to family life for a relatively short period.

The Strasbourg Authorities

20. The starting point in any consideration of article 8 ECHR in the immigration context, and especially in cases concerning non-national spouses, is Abdulaziz, Cabales and Balkandali v. UK [1985] 7 EHRR 471. The principles were distilled by the Strasbourg Court in the following paragraphs:

"66.  The applicants contended that respect for family life - which in their cases the United Kingdom had to secure within its own jurisdiction - encompassed the right to establish one's home in the State of one's nationality or lawful residence; subject only to the provisions of paragraph 2 of Article 8, the dilemma either of moving abroad or of being separated from one's spouse was inconsistent with this principle. Furthermore, hindrance in fact was just as relevant as hindrance in law: for the couples to live in, respectively, Portugal, the Philippines or Turkey would involve or would have involved them in serious difficulties (see paragraphs 43, 49 and 54 above), although there was no legal impediment to their doing so.

67.  The Court recalls that, although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective "respect" for family life (see the above-mentioned Marckx judgment, Series A no. 31, p. 15, para. 31). However, especially as far as those positive obligations are concerned, the notion of "respect" is not clear-cut: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals (see, amongst other authorities, mutatis mutandis, the above-mentioned "Belgian Linguistic" judgment, Series A no. 6, p. 32, para. 5; the National Union of Belgian Police judgment of 27 October 1975, Series A no. 19, p. 18, para. 39; the above-mentioned Marckx judgment, Series A no. 31, p. 15, para. 31; and the Rasmussen judgment of 28 November 1984, Series A no. 87, p. 15, para. 40). In particular, in the area now under consideration, the extent of a State's obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved. Moreover, the Court cannot ignore that the present case is concerned not only with family life but also with immigration and that, as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory.

68.  The Court observes that the present proceedings do not relate to immigrants who already had a family which they left behind in another country until they had achieved settled status in the United Kingdom. It was only after becoming settled in the United Kingdom, as single persons, that the applicants contracted marriage (see paragraphs 39-40, 44-45 and 50-52 above). The duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country.

In the present case, the applicants have not shown that there were obstacles to establishing family life in their own or their husbands' home countries or that there were special reasons why that could not be expected of them.

In addition, at the time of their marriage

(i) Mrs. Abdulaziz knew that her husband had been admitted to the United Kingdom for a limited period as a visitor only and that it would be necessary for him to make an application to remain permanently, and she could have known, in the light of draft provisions already published (see paragraph 20 above), that this would probably be refused;

(ii) Mrs. Balkandali must have been aware that her husband's leave to remain temporarily as a student had already expired, that his residence in the United Kingdom was therefore unlawful and that under the 1980 Rules, which were then in force, his acceptance for settlement could not be expected.

(iii) In the case of Mrs. Cabales, who had never cohabited with Mr. Cabales in the United Kingdom, she should have known that he would require leave to enter and that under the rules then in force this would be refused.

69.  There was accordingly no "lack of respect" for family life and, hence, no breach of Article 8 (art. 8) taken alone."

21. Within the reasoning of the Strasbourg Court one can discern the seeds of a number of factors which, in the quarter of a century since, it has repeatedly stated will weigh in any balance being struck in cases such as these. The extent to which there may be obstacles to relocating elsewhere is relevant, the burden being on the applicants to establish the obstacles. The Court referred to 'special reasons' being needed to show why relocation could not be expected on the parties. It also referred to the fact that the settled partners were aware of their spouses' precarious immigration status as being relevant.
22. The most recent authoritative statement from Strasbourg cited to me was Y v. Russia (2010) 51 EHRR 21, decided in December 2008. In that case the Chinese applicant had unsuccessfully applied for asylum in Russia in 2003. Whilst his challenge to the refusal was before the Russian Courts he married his wife in April 2005. His appeals were dismissed. A deportation order was made on 2 May 2007 and he was removed on 13 May 2007. Both he and his wife complained that his removal violated their article 8 rights. In rejecting that claim, indeed describing it as manifestly unfounded, the Strasbourg Court weighed all the facts against a statement of principle in paragraphs [103] and [104] of the judgment:

"103 By way of introduction the Court notes that the essential object of art.8 is to protect the individual against arbitrary action by the public authorities. The Court reiterates that in the context of both positive and negative obligations the state must strike a fair balance between the competing interests of the individual and of the community as a whole. However, in both contexts the state enjoys a certain margin of appreciation. Where immigration is concerned, art.8 cannot be considered to impose on a state a general obligation to respect a married couple's choice of country for their matrimonial residence or to authorise family reunion on its territory. However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life, as guaranteed by art.8(1) of the Convention.

104 Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the contracting state, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (for instance, a history of breaches of immigration law) or consideration of public order weighing in favour of exclusion. Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious. Where this is the case the removal of the non-national family member would be incompatible with art.8 only in exceptional circumstances."

In paragraph [106] the Court considered the question whether the applicant would have been granted a residence permit had he applied for one as the spouse of his wife. It simply described the question as remaining open, as was the question whether his wife would be able to follow him to China. Thus in a case where the Court gave its judgment on the assumption that the marriage was genuine (see paragraph [105]) it found no 'exceptional personal circumstances' which would have precluded his removal at the end of the asylum appeals process, his marriage notwithstanding. It did not consider his ties with Russia to be of 'such a compelling nature' as to preclude his return to China. It is striking that the Court declared the application under article 8 manifestly unfounded even though there was no evidence to show that the applicant and his wife would be reunited in either Russia or China.

23. The approach of the Strasbourg Court exemplified by the decision in Y v. Russia represents a consistent line of authority. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; (2011) 2 WLR 148 Lady Hale said this at paragraph [19] of her judgment:

"19. It was long ago established that mixed nationality couples have no right to set up home in whichever country they choose: see Abdulaziz Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471. Once they have done so, however, the factors relevant to judging the proportionality of any interference with their right to respect for their family lives have quite recently been rehearsed in the case of Rodrigues da Silva, Hoogkamer v The Netherlands (2006) 44 EHRR 729, para 39:

"Article 8 does not entail a general obligation for a state to respect immigrants' choice of country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a state's obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the person involved and the general interest [the reference is to Gul v Switzerland (1996) 22 EHRR 93, para 38]. Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the contracting state, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (eg a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion [the reference is to Solomon v The Netherlands (Application No 44328/98) (unreported) given 5 September 2000]. Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious. The court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8 [the reference is to Mitchell v United Kingdom (Application No 40447/98) (unreported) given 24 November 1998; Ajayi v United Kingdom (Application No 27663/95) (unreported) given 22 June 1999]."

Despite the apparent severity of these words, the court held that there had been a violation on the facts of the case. A Brazilian mother came to the Netherlands in 1994 and set up home with a Dutch national without ever applying for a residence permit. In 1996 they had a daughter who became a Dutch national. In 1997 they split up and the daughter remained with her father. It was eventually confirmed by the Dutch courts that it was in her best interests to remain with her father and his family in the Netherlands even if this meant that she would have to be separated from her mother. In practice, however, her care was shared between the mother and the paternal grandparents. The court concluded at para 44 that, notwithstanding the mother's "cavalier attitude to Dutch immigration rules",

'In view of the far reaching consequences which an expulsion would have on the responsibilities which the first applicant has as a mother , as well as on her family life with her young daughter, and taking into account that it is clearly in Rachael's best interests for the first applicant to stay in the Netherlands, the court considers that in the particular circumstances of the case the economic well-being of the country does not outweigh the applicants' rights under article 8, despite the fact that the first applicant was residing illegally in the Netherlands at the time of Rachael's birth.' "

The factors listed by the Strasbourg Court in the middle of paragraph 39 of its judgment in Rodrigues da Silva appear in many others. Lady Hale cited from Rodrigues da Silva not only because it provided a recent authoritative statement of the Strasbourg approach, but also because in later passages in the judgment the Strasbourg Court considered the impact of expulsion on a young child in a way which accorded much greater weight to the child's interests than had earlier decisions of the Court and Commission.

24. The factors listed in paragraph [39] in Rodrigues da Silva appeared in the Commission decisions in Pp and others v. United Kingdom (1996) 21 EHRR CD81 and in Poku v United Kingdom (1996) 22 EHRR CD 94. Counsel have not sought to identify every case since then in which a similar formulation has appeared. However, the factors were restated in Uner v. Netherlands [2006] ECHR 46410/99 at paragraph [54] and then brought together by the Strasbourg Court in Omoregie and others v. Norway [2008] ECHR 265/07 at paragraph [57]:

"In assessing the question of necessity, the Court will have regard to the various factors indicated in paras 57 to 59 of Uner v Netherlands [2006] ECHR 46410/99. The State must strike a fair balance between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation. Moreover, art 8 does not entail a general obligation for a State to respect immigrants' choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State's obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest (see Gul v Switzerland [1996] ECHR 23218/94 at para 38, 19 February 1996; and Rodrigues da Silva and Hoogkamer v Netherlands [2006] ECHR 50435/99 at para 39). Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin or one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see Rodrigues da Silva and Hoogkamer v Netherlands [2006] ECHR 50435/99 ibidem; Ajayi v UK (dec) no 27663/95, 22 June 1999; Solomon v Netherlands (dec) no 44328/98, 5 September 2000). Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious (see Jerry Olajide Sarumi v UK (dec) no 43279/98, 26 January 1999; Andrey Sheabashov v la Lettonie (dec) no 50065/99, 22 May 1999). Where this is the case the removal of the non-national family member would be incompatible with art 8 only in exceptional circumstances (see Abdulaziz, Cabales and Balkandali v UK [1985] ECHR 9214/80 at para 68; Mitchell v UK (dec) no 40447/98, 24 November 1998; and Ajayi v UK (dec) no 27663/95, 22 June 1999; Rodrigues da Silva and Hoogkamer v Netherlands [2006] ECHR 50435/99 ibidem).]"

25. In Mahmood v. Secretary of State for the Home Department [2001] 1 WLR 840, Lord Phillips of Worth Matravers MR identified at paragraph [55] of his judgment the factors which had emerged from the Strasbourg jurisprudence cited to the Court of Appeal:

"55 From these decisions I have drawn the following conclusions as to the approach of the Commission and the European Court of Human Rights to the potential conflict between the respect for family life and the enforcement of immigration controls (1) A state has a right under international law to control the entry of non-nationals into its territory, subject to always to its treaty obligations. (2) Article 8 does not impose on a state any general obligation to respect the choice of residence of a married couple. (3) Removal or exclusion of one family member from a state where other members of the family are lawfully resident will not necessarily infringe article 8 provided that there are no insurmountable obstacles to the family living together I the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family. (4) Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a state if the circumstances are such that it is not reasonable to expect the other members of the of the family to follow that member expelled. (5) Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates article 8. (6) Whether interference with family rights is justified in the interests of controlling immigration will depend on (i) the facts of the particular case and (ii) the circumstances prevailing in the state whose action is impugned."

26. Boultif v. Switzerland (2001) 33 EHRR 1179 concerned the expulsion from Switzerland of an Algerian national who had married a Swiss national in 1993, obtained a residence permit and then committed criminal offences for which he was sentenced to two years' imprisonment. In 1998 the Swiss authorities refused to renew his residence permit because of his offending. The Strasbourg Court concluded that his removal violated article 8. It expressed itself slightly differently as to the factors to be weighed from the formulation in the cases already referred to. In paragraph [48] the Court said this:

"In assessing the relevant criteria in such a case, the Court will consider the nature and seriousness of the offence committed by the applicant; the length of the applicant's stay in the country from which he is going to be expelled; the time elapsed since the offence was committed as well as the applicant's conduct in that period; the nationalities of the various persons concerned; the applicant's family situation, such as the length of the marriage; and other factors expressing the effectiveness of a couple's family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage, and if so, their age. Not least, the Court will also consider the seriousness of difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a person might face certain difficulties in accompanying his or her spouse cannot in itself exclude an expulsion."

Having then considered the nature and extent of the applicant's offending, and thus the risk to law and order he posed, the Court went on to consider the question whether he and his wife could be expected to relocate elsewhere. Italy was a possibility which was discounted because the applicant's residence there was irregular. So far as Algeria was concerned the reasoning of the Court is contained in one short paragraph:

"The Court has considered, first, whether the applicant and his wife could live together in Algeria. The applicant's wife is a Swiss national. It is true that the applicant's wife can speak French and has had contacts by telephone with her mother-in-law in Algeria. However, the applicant's wife has never lived in Algeria, she has no other ties with that country, and indeed she does not speak Arabic. In these circumstances she cannot, in the Court's opinion, be expected to follow her husband, the applicant to Algeria."

27. The reference to 'insuperable obstacles', both by Lord Phillips and also by the Strasbourg Court in the article 8 removal cases, was a reference to one of a range of factors to which a decision maker and reviewing court should have regard in a fact sensitive evaluation in determining whether removal would involve a violation of article 8. However, it is reasonably clear that the reference to 'insuperable obstacles' came to be applied in the United Kingdom as a test in its own right. In other words the approach was that absent insuperable obstacles to resettlement being established, article 8 would not assist an applicant. So much is clear, for example, from the reasons of Buxton LJ in giving permission to appeal in VW (Uganda) v. Secretary of State for the Home Department [2009] EWCA Civ 5 where he observed that the Immigration Judge had used a test of 'insurmountable obstacles' as a substitute for proportionality; and in the judgment of Sullivan LJ in MA (Pakistan) v. Secretary of State for the Home Department [2009] EWCA Civ 953 at paragraph [14], where the Immigration Judge had applied that test. The Strasbourg authorities did not elevate the question of insurmountable obstacles to a test in its own right. It has consistently been referred to as one of a number of factors to be weighed.
28. Such obstacles can be either practical or legal. The most obvious 'insurmountable obstacle' which might prevent a family member following another would be a legal impediment to his being admitted to the foreign country. An insurmountable obstacle, recognised in domestic authority, was presented to a husband who would have to follow his wife to the country from which he had fled as a refugee. Practical obstacles could arise in any number of circumstances. Whether they would be considered insurmountable would call for careful evaluation. Yet it has never been the Strasbourg position that if obstacles to relocation can be overcome, the enquiry ends there. Moreover it has never been the case that obstacles are ignored if they can be overcome. They remain in the mix of facts calling for evaluation.

The English Authorities

29. The starting point for an understanding of the domestic approach to article 8 is the decision of the House of Lords in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368. It was concerned with much beyond an analysis of how article 8 should operate, in particular whether the Secretary of State was entitled to certify the human rights claim in that case as manifestly unfounded under section 72(2)(a) of the Immigration Nationality and Asylum Act 1999. It was a case which involved the availability of appropriate psychiatric treatment in Germany and the risk of suicide. Factually it was far removed from what might be described as an ordinary article 8 claim raised in immigration proceedings. In the course of his opinion Lord Bingham of Cornhill identified the proper approach to the assessment of article 8 claims where removal from the United Kingdom is resisted:

"17. … the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, these questions are likely to be:

(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?

(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(3) If so, is such interference in accordance with the law?

(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?

18. If the reviewing court is satisfied in any case, on consideration of all the materials which are before it and would be before an adjudicator, that the answer to question (1) clearly would or should be negative, there can be no ground at all for challenging the certificate of the Secretary of State. Question (2) reflects the consistent case law of the Strasbourg court, holding that conduct must attain a minimum level of severity to engage the operation of the Convention: see, for example, Costello-Roberts v United Kingdom (1993) 19 EHRR 112. If the reviewing court is satisfied that the answer to this question clearly would or should be negative, there can again be no ground for challenging the certificate. If question (3) is reached, it is likely to permit of an affirmative answer only.

19. 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 recognised in the Strasbourg jurisprudence (see Ullah and Do, 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.

20. 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 be made by an adjudicator on appeal. In Secretary of State for the Home Department v Kacaj [2002] Imm AR 213, paragraph 25, the Immigration Appeal Tribunal (Collins J, Mr C M G 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 no doubt (paragraph 26 of its judgment) 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. "

30. The Committee was divided upon the issue whether the Secretary of State was entitled to certify Mr Razgar's claim, but not on the principles in play. At the end of her opinion Lady Hale made this observation:

"…I would … allow the appeal. I appreciate that this may seem a harsh conclusion to draw. But this is a field in which harsh decisions sometimes have to be made. People have to be returned to situations which we would find appalling. The United Kingdom is not required to keep people here who have no right to be here unless to expel them would be a breach of its international obligations. It does the cause of human rights no favours to stretch those obligations further than they can properly go."

31. The next case in the House of Lords was Huang v. Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167. The main issue under consideration in Huang was the correct approach of the appellate immigration authorities. The decision of the House of Lords was given in a single opinion by Lord Bingham. In paragraph [15] the Committee emphasised the need for the decision maker (or tribunal) to establish the relevant facts. In paragraph [16] it noted a range of factors that weigh in favour of refusal, amongst them the general administrative desirability of applying known rules to make the immigration system workable; the damage to good administration if the system of immigration in the United Kingdom is viewed as being 'porous'; and particular concerns relating to criminals. The Committee explained the importance of Strasbourg jurisprudence in paragraph [18]:

"The authority must of course take account, as enjoined by section 2 of the 1998 Act, of Strasbourg jurisprudence on the meaning and effect of article 8. While the case law of the Strasbourg court is not strictly binding, it has been held that domestic courts and tribunals should, in the absence of special circumstances, follow the clear and constant jurisprudence of that court: R(Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 26; R(Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20. It is unnecessary for present purposes to attempt to summarise the Convention jurisprudence on article 8, save to record that the article imposes on member states not only a negative duty to refrain from unjustified interference with a person's right to respect for his or her family but also a positive duty to show respect for it. The reported cases are of value in showing where, in many different factual situations, the Strasbourg court, as the ultimate guardian of Convention rights, has drawn the line, thus guiding national authorities in making their own decisions. But the main importance of the case law is in illuminating the core value which article 8 exists to protect. This is not, perhaps, hard to recognise. Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant's dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant. The Strasbourg court has repeatedly recognised the general right of states to control the entry and residence of non-nationals, and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where they prefer to live. In most cases where the applicants complain of a violation of their article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of article 8, the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved."

32. The Committee turned to proportionality and said:

"19. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80, the Privy council, drawing on South African, Canadian and Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is proportionate:

'whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'

This formulation has been widely cited and applied. But counsel for the applicants (with support of Liberty, in a valuable written intervention) suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103, from which this approach to proportionality derives. This feature is (p 139) the need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted. The House recognised as much in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, paras 17-20, 26, 27, 60, 77, when having suggested a series of questions which an adjudicator would have to ask and answer in deciding a Convention question, it said that the judgment on proportionality

'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' (see para 20).

If as counsel suggest insufficient attention has been paid to this requirement, the failure should be made good.

20. 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 articles 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 above, 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. "

33. These paragraphs of the Committee's opinion are of importance for a number of reasons. First, in my judgment, there is no question of the House of Lords seeking to depart from the approach of the Strasbourg Court in article 8 cases. Secondly, Lord Bingham reiterated the stepped approach he had articulated in Razgar and then clarified how proportionality should be considered. Thirdly, in paragraph [20] Lord Bingham identified as a factor in the assessment of proportionality circumstances where family life could not reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of refusal. Those are the considerations repeatedly identified in the Strasbourg jurisprudence. Fourthly, the House of Lords clarified that the use of the term 'exceptional' did not raise a distinct legal test. Rather, the expectation was that only a very small minority of cases would succeed under article 8 which had failed under the rules.
34. EB (Kosovo) v. Secretary of State for the Home Department [2008] UKHL 41; [2009] 1 AC 1159 was a case primarily about the impact of delay in removing an individual upon a claim based on article 8. Between paragraphs [7] and [12] of his opinion Lord Bingham reviewed the approach to appeals on article 8 grounds. The other members of the committee endorsed Lord Bingham's approach. Lord Brown of Eaton-Under-Heywood dissented on one aspect of the reasoning of the majority relating to the impact of delay; but his dissent did not arise from this section of Lord Bingham's opinion. Both counsel before me submit that paragraph [12] of the opinion represents a significant departure from the Strasbourg approach to article 8. This is what Lord Bingham said:

"Thus the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires."

35. Counsel submit that this part of Lord Bingham's opinion has resulted in a free-standing question being substituted for the careful evaluation of competing factors hitherto required, namely whether it is reasonable to require the family members resident in the United Kingdom to follow the member being removed. Whether or not that was Lord Bingham's intended effect, counsel submit that it has been achieved in two decisions of the Court of Appeal to which I have already referred. The first is VW (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 5; the second MA (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 953. Just as it appears to have been the case that article 8 questions were reduced to a consideration of 'insuperable difficulties' in the light of Mahmood (and Strasbourg authority), now counsel suggest that the question has become whether it is reasonable to expect family members to relocate, and furthermore that the question is in practice considered with little consideration being given to countervailing factors. Before turning to the decisions of the Court of Appeal I look first at paragraph [12] in the context of what comes before to determine whether, absent any gloss the Court of Appeal may have applied, the submission is well-founded.
36. The opening word of paragraph [12] – 'thus' – makes it clear that its content must be read in the light of what has gone before. What has gone before? First, in paragraph [7] of his opinion Lord Bingham reiterated the five stages of reasoning in an article 8 cases that he had identified in Razgar. Secondly, he restated that the test was one of proportionality. Thirdly, in paragraph [8], he emphasised the need for a careful investigation of facts. Fourthly, in paragraph [9] he quoted what he had said in paragraph [16] of Huang concerning the general considerations relating to immigration control which weigh in any article 8 evaluation. He added that there was nothing novel in this. Lord Bingham referred approvingly to the judgment of Laws LJ in Mahmood at paragraph [23] where he had said:

"Firm immigration control requires consistency of treatment between one aspiring immigrant and another"

Then Lord Bingham quoted extensively from paragraphs [18] and [20] of his opinion in Huang before coming to the passage upon which counsel found their submissions.

37. In my judgment, the terms in which Lord Bingham expressed himself show that he was not qualifying the earlier decisions of the House of Lords, still less departing from the approach of the Strasbourg Court. In paragraph [12] Lord Bingham refers to the Strasbourg case law. His reference to a spouse being reasonably expected to follow the removed spouse is, in my judgment, shorthand for the longer treatment of the same issue in paragraph [20] of Huang. That brings into consideration the factors telling in favour of removal. In my opinion it is not a free-standing question divorced from those factors.
38. Huang and EB (Kosovo) contain the general statements of principle at the highest level setting out the approach to article 8 in courts and tribunals in the United Kingdom. It is, to my mind, an unsound proposition to suggest that the House of Lords has developed the general approach of the United Kingdom relating to article 8 in the immigration context well beyond that found in Strasbourg. It would be inconsistent with two well-known and oft repeated propositions of law. The first was referred to by Lord Bingham himself in paragraph [18] of Huang, namely that, courts in the United Kingdom should usually follow a clear and consistent line of decisions of the Strasbourg Court. The second is that the courts of the United Kingdom should keep pace with the decisions of the Strasbourg Court but not get ahead of them: Ullah at [20]. I am unable to accept that their Lordships inadvertently trespassed against the principles articulated by Lord Bingham in Ullah.
39. The next question is whether the Court of Appeal has, through its interpretation of the decisions of the House of Lords, achieved that result. VW (Uganda) was a case heard in November 2008. Judgment was given on 16 January 2009. It followed EB (Kosovo). In his judgment, Sedley LJ sought to summarise the effect of that decision and also of Razgar. It is apparent from paragraphs [19] and [24] that Sedley LJ (with whom Wilson and Mummery LJ agreed) was concerned to lay to rest the notion that the test under article 8 was one of 'insuperable difficulty' in the family unit relocating. Nothing said in his judgment seeks to qualify EB (Kosovo). Indeed, Sedley LJ emphasised the need for 'a balanced judgment of what can reasonably be expected in the light of the material facts': paragraph [19]. The material facts include the full panoply of those consistently identified by the Strasbourg Court. Similarly, in MA (Pakistan) Sullivan LJ did no more than refer to the contrast between 'the test based on "insurmountable obstacles" to the question whether or not the applicant and his wife could move to Pakistan' and the approach suggested by EB Kosovo.
40. MA (Pakistan) was a case which concerned an underlying decision of the Secretary of State which had the effect of requiring the applicant to return to Pakistan to make an application for leave to enter as a spouse. The court proceedings challenging the decision had been overtaken by Chikwamba v. Secretary of State for the Home Department [2008] UKHL 40; [2008] 1 WLR 1420. The Court of Appeal applied that decision and allowed MA's appeal.
41. Chikwamba was a case decided at the same time as EB (Kosovo) and also Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 38; [2009] AC 115. All three cases were decided on the same day. Beoku-Betts decided that in considering removal of one family member the article 8 rights of all members should be taken into account. In coming to that conclusion their Lordships applied Strasbourg jurisprudence: see paragraphs [37] to [40] of the opinion of Lord Brown of Eaton-under- Heywood.
42. The issue in Chikwamba was identified in paragraph [9] of the opinion of Lord Brown in these terms:

"In determining an appeal under section 65 of the Immigration and Asylum Act 1999 (the 1999 Act) (now sections 82 and 84 of the Nationality, Immigration and Asylum Act 2002) against the Secretary of State's refusal of leave to remain on the ground that to remove the claimant would interfere disproportionately with his article 8 right to respect for his family life, when, if ever, is it appropriate to dismiss the appeal on the basis that the appellant should be required to leave the country and seek leave to enter from an entry clearance officer abroad?"

The essential facts were that the Zimbabwean appellant had arrived as a 26 year old in April 2002 with younger siblings and claimed asylum on the basis of her, and her mother's, involvement in the MDC movement in Zimbabwe. Her claim was unsuccessful. She was refused leave to enter but no steps were taken to remove her because of a moratorium on enforced removals to Zimbabwe then in place, which continued until late 2004. On 26 September 2002 the appellant married her Zimbabwean husband. He had earlier been granted asylum. On 14 April 2004 their daughter was born. It was accepted that the appellant's husband could not follow her to Zimbabwe whilst she made her application for leave to enter (an example of an insurmountable obstacle) and that the course proposed by the Secretary of State would separate the family for a period of about three months. Recent amendments to the rules (since repealed for marriage cases), which mandated periods of exclusion after a refusal of leave to enter, do not appear to have applied to the appellant. If mother and child went to Zimbabwe they would endure 'harsh and unpalatable' conditions. The appellant would not qualify for entry under the rules but probably would outside the rules. The exercise proposed by the Secretary of State would put the appellant to considerable expense.

43. The argument advanced on behalf of the appellant was that, whilst in some cases it might be appropriate to require an individual to travel abroad to make an application for entry clearance, this was not such a case because it would be disproportionate in article 8 terms to do so.
44. In paragraph [30] of his opinion Lord Brown referred to his own judgment in the Court of Appeal in R (Ekinci) v. Secretary of State for the Home Department, which concerned a short prospective separation:

"Having earlier in my judgment noted that there was scope for permission to enter outside the rules if article 8 required it and that the time taken to process entry clearance applications in Germany was something under a month, I concluded at para 19, that there was:

'nothing even arguably disproportionate in requiring this appellant to return to Germany for the relatively short space of time that will elapse before he is then able to have his entry clearance application properly determined, if necessary outside the strict rules. That the Secretary of State is not contemplating or intending any longer-term, let alone permanent, separation of the appellant from his family seems to me abundantly plain . . .' "

45. At paragraph 39 of his opinion Lord Brown asked a rhetorical question. What purpose is served and what in reality is achieved by requiring someone to leave the country to make an application to return as a spouse? The answer provided by the Secretary of State was that it is unfair to steal a march on those who follow the rules by making an application for entry clearance from abroad, by gaining entry to the United Kingdom and marrying here. Lord Brown doubted that those in the entry clearance queues across the globe would feel a sense of unfairness in those circumstances. He went on to identify an alternative reason in paragraph [41] of his opinion:

"Is not the real rationale for the policy perhaps the rather different one of deterring people from coming to this country in the first place without having obtained entry clearance and to do so by subjecting those who do come to the very substantial disruption of their lives involved in returning them abroad?"

46. Lord Brown did not consider such an objective necessarily objectionable and indeed explicitly accepted that sometimes it would be appropriate to take that course. Ekinci was an example given his poor immigration record and the prospective wait of only a month in Germany. He added:

"In an article 8 family case the prospective length and degree of family disruption involved in going abroad for an entry clearance certificate will always be highly relevant." paragraph [42]

He added that the Home Office policy then in place appeared to apply a blanket approach. Lord Brown's conclusion, which was supported by all members of the Committee, was set out in paragraph [44]:

"I am far from suggesting that the Secretary of State should routinely apply this policy in all but exceptional cases. Rather it seems to me that only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad."

47. Lady Hale put it this way:

"Even if it would not be disproportionate to expect a husband to endure a few months' separation from his wife, it must be disproportionate to expect a four year old girl, who was born and has lived all her life here, either to be separated from her mother for some months or to travel with her mother to endure the "harsh and unpalatable" conditions in Zimbabwe simply in order to enforce the entry clearance procedures." paragraph [7]

48. In suggesting that the course proposed by the Secretary of State would only 'comparatively rarely' be proportionate in a case involving children I do not understand Lord Brown to be laying down a legal test. Rather, he was expressing the expectation of the Committee that, having undertaken the careful evaluation explained on the same day in EB (Kosovo), the balance on proportionality would fall in favour of the individual in cases such as Chikwamba. Put differently, such cases would fall within the minority envisaged by the House of Lords in Huang, or more generally the exceptions referred to in the Strasbourg Court, in which article 8 would provide an obstacle to removal.
49. In MA (Pakistan) Sullivan LJ concluded that the Immigration Judge had failed to consider Chikwamba and also wrongly applied the 'insurmountable obstacles' test. For these reasons the appeal was allowed and remitted to be reconsidered. In the course of his judgment Sullivan LJ said this in paragraph [7]:

"I realise that Lord Brown referred to Article 8 cases involving children and that there are no children involved in this case, but the view that return should be insisted upon simply in order to secure formal compliance with entry clearance rules "only comparatively rarely" is not confined to cases where children are involved. While the suggested approach in Chikwamba "certainly" applies in such cases, it also applies to family cases more generally. Depending on the facts of the case, it may apply with more or less force. But there is no suggestion in this determination that the immigration judge took the Chikwamba approach into account at all."

Both counsel submit that this represents a step change since Chikwamba. It is right to note that Lord Brown expressed himself cautiously in Chikwamba. He was focussing on cases involving children because the appeal he was considering was such a case. However, his observation was not confined to such cases, albeit that the impact on children was plainly an important feature for the purposes of assessing proportionality. As I have indicated, Lord Brown was expressing his expectation, in much the same way as Lord Bingham had done with regard to exceptionality in Huang. Sullivan LJ was, in my judgment, doing the same. He was careful to qualify his statement by the need to have regard to the facts of the particular case.

50. I have not been shown any cases from the Strasbourg Court in which the precise circumstances of Chikwamba or MA have been considered. In MA they were both concerned with individuals whose ultimate success in joining their spouses in the United Kingdom was not in doubt. The Court of Appeal did not express a conclusion on the article 8 factual issue. The underlying facts are not comprehensively set out in the judgment. It remitted the matter for further consideration. In Chikwamba the House of Lords did come to a conclusion on proportionality, whilst at the same time indicating that the mere fact of removal for the purpose of making an application from abroad would not necessarily violate article 8. It all depended on the facts. But there can, in my judgment, be no doubt that their Lordships considered the result of Chikwamba as being entirely consistent with the Strasbourg jurisprudence. The weight to be accorded to compliance with the formal requirements of the Immigration Rules, in a case where an application for an entry clearance from abroad would be granted and there would be significant interference with family life by temporary removal, was reduced.
51. Lord Brown's emphasis on the impact of any removal on children found its full expression in ZH (Tanzania). In her detailed analysis of the Strasbourg and international jurisprudence, Lady Hale showed that there had been a clear move towards according the interests of children in article 8 cases much greater weight than hitherto.
52. From all this it follows that I do not accept the central submission of both counsel that the House of Lords has developed the law on article 8 in the United Kingdom in a way that has parted company with Strasbourg. Just as the proper approach to article 8 was once wrongly equated with the 'insurmountable difficulty' test so now it may be that another inappropriate substitute for the careful weighing of factors has been found in 'reasonable to move', without an appreciation that such a test itself engages all the factors identified by Strasbourg. Similarly, whilst the expectation in cases involving removal of one spouse to enable an application to be made from abroad according to the rules is that comparatively rarely will it be a proportionate requirement, all depends upon the facts.

Submissions on the individual cases

53. Mr Malik developed six short submissions.

i) The decisions of the Secretary of State had not considered whether it was reasonable to expect Mrs Kotecha, on the one hand, or Mr Das and the children to move abroad.

ii) The Secretary of State does not appear to have considered the dilemma faced by the spouses settled in the United Kingdom of following the others abroad.

iii) In neither case was there 'anxious scrutiny' of the underlying questions. Whilst very little information was provided to the Secretary of State she should have sought more evidence from the claimants, or called them in for interview.

iv) Both of these cases fall squarely within the approach of the House of Lords in Chikwamba and MA (Pakistan).

v) ZH (Tanzania) strengthens Mrs Das' case because the interests of the children suggest that removal, even for a short while would imperil their article 8 rights.

vi) It is no longer a material factor that the marriages were contracted whilst the claimants had no right to be in the United Kingdom.

54. Miss Busch submits that on the facts Mr Kotecha derives no assistance from Chikwamba and MA (Pakistan). She recognises that the circumstances of Mrs Das' case are less easy to distinguish from Chikwamba, but nonetheless submits that there are a number of factors which support a distinction. First, Mr Das can travel to Bangladesh with his family whilst the process of an application for entry clearance is completed. Secondly, the evidence does not provide a parallel with the 'harsh and unpalatable' conditions that faced Mrs Chikwamba on her return to Zimbabwe. Thirdly, the likely period of disruption to family life is rather shorter than the three months anticipated in that case. Miss Busch further submits that any deficiency in the evidence relating to the circumstances of the families cannot be laid at the door of the Secretary of State. It is for individuals relying upon article 8 to place before the Secretary of State all the material they consider necessary to establish the interference complained of.

Discussion

55. The facts of these two cases, which I have set out fully between paragraphs [5] and [19], demonstrate that neither claim concerns the all too familiar dilemma faced in removal cases of one spouse having to relocate to an unfamiliar land, still less the risk of destruction of a family unit or the fracture of relations between one parent and children. These cases are about the proportionality of requiring temporary separation or relocation in the interests of the orderly administration of immigration policy. In those circumstances I do not consider that there is anything in the first two submissions advanced by Mr Malik. I am similarly unpersuaded by his argument that the Secretary of State failed to give these cases sufficient scrutiny and failed to explore the evidence further.
56. The submission that the Secretary of State has a legal duty to find evidence in support of an article 8 claim, beyond that placed before her by those seeking to assert their article 8 rights, springs from an observation of Sedley LJ in AB (Jamaica) at paragraph [31]. The observation does not support the broad submission made by Mr Malik. Sedley LJ simply noted that the Home Secretary had suggested that it was proportionate for the British husband of a Jamaican national to emigrate to Jamaica to preserve the marriage, when there was no evidence of the availability of work or accommodation in Jamaica, in circumstances where the Home Office Presenting Officer declined to ask any questions about this or indeed anything else of the husband at the tribunal hearing. It is, in my judgment for an applicant to place before the Secretary of State all material upon which, he relies to suggest that the consequences of removal would interfere with the article 8 rights of the family.
57. I am also unable to accept Mr Malik's submission that it is no longer a factor to be weighed that a marriage was contracted whilst an individual's immigration status was precarious. Such a submission is inconsistent with the Huang, EB (Kosovo) and Chikwamba. The question in these cases, as in all article 8 cases, is whether the interference which will flow to the family life of the claimant and his or her family members from removal is in all the circumstances proportionate. I readily accept that the interests of children affected by any decision to remove, or any decision which will require the separation of parents and children, is a primary consideration: ZH (Tanzania).
58. The Secretary of State's decision requires Mr Kotecha to return to Tanzania to make an application for entry clearance to join his wife in the United Kingdom. The period during which he will need to be in Tanzania whilst that process is completed may be as short as a week and, on the information available, would not exceed a month. It is likely to fall somewhere between. If the law were as Mr Malik submitted, namely that in a marriage case the Secretary of State could never lawfully require one spouse to return to his country of origin and make an application for an entry clearance, then the claim would succeed. But neither Chikwamba nor MA (Pakistan) suggests that to be the law. Both recognise that, albeit comparatively rarely, such a course might not involve a breach of article 8. The nature and extent of the disruption is one important factor. In Mr Kotecha's case it is marginal. He would on one hypothesis be separated from his wife for a handful of weeks at most or on the other she would spend a few weeks in Tanzania with him, as do thousands of tourists from the United Kingdom each year. On either hypothesis they would be put to some expense. It seems to me that the Strasbourg Court would be likely to conclude that the disruption to their lives would be so modest that article 8 would not be engaged at all. If there is an interference sufficient to engage article 8, account of the public interest in firm and fair immigration control comes into the balance. As Lord Brown almost put it in paragraph [42] of Chikwamba, 'pour encourager les autres'. There is a marginal impact on family life. The marriage was contracted when both parties knew that Mr Kotecha had no right to be here, so even if article 8 is engaged I conclude that the decision in his case was proportionate. It is one of those 'comparatively rare' cases where the Secretary of State is entitled to require the application to be made from abroad.
59. By contrast, I am satisfied that the decision in Mrs Das' case cannot be justified under article 8(2). Although the evidence is, as so often in article 8 immigration cases, scant, it has these essential features. Mrs Das would have to return to Bangladesh for a period of between one and three months. She could not readily leave both her children behind. The younger child is only two and had just passed his first birthday at the time of the Secretary of State's decision. Her elder son is now six. He was five when the Secretary of State's decision was made. Mr Das works whilst she looks after the children. Taking a realistic view of the circumstances of the family, requiring Mrs Das to go to Bangladesh temporarily but leave the children behind would create enormous difficulties for them and her husband. Taking them with her to Bangladesh would cause temporary separation from their father but also dislocate the education of the elder. Mr Das following them to Bangladesh for the duration of the application process would be possible but very likely have significant economic consequences.
60. The requirement for Mrs Das to return to Bangladesh to make her application is in my judgment disproportionate by reference to the Strasbourg lexicon (paragraph [104] in Y v. Russia). I accept that family life would not be ruptured save in the short term, but the ties in the contracting state are strong. Mr Das had indefinite leave to remain and is now a British national. The younger child is a British national and the elder child knows no life other than in Britain. The strength of the ties, of course, weigh less in a case where what is contemplated is a temporary rather than a permanent removal from the contracting country. It is also clear that there are no 'insurmountable obstacles' in the family temporarily relocating to Bangladesh, albeit that there are serious practical difficulties. There is no history of breaches of immigration law in this case, although Mrs Das is an overstayer. The circumstances in which she came to be an overstayer are very unusual. Her husband died. Her right to be in the United Kingdom was derivative of his. She stayed because she had a family support network here. So whilst both she and Mr Das can be taken to have appreciated her precarious status when they married the position is not as egregious as frequently encountered. Furthermore, and importantly, it is not suggested that her marriage to Mr Das will not provide her with the right to live in the United Kingdom. It is common ground that it will. Thus (exceptionally in the language of Strasbourg) it would be disproportionate to remove her for the purpose of making an application for entry clearance. In the terms of Chikwamba, this is not one of those cases, likely to be encountered comparatively rarely, in which it is proportionate to require the application to be made from abroad.

Conclusion

61. Mrs Das succeeds in her application for judicial review. Mr Kotecha fails. I will hear counsel further on the question of relief for Mrs Das. In the light of my conclusion that the House of Lords and Strasbourg have not parted company in the way suggested by the parties, the question of a leapfrog appeal does not arise.