Strand, London, WC2A 2LL
B e f o r e :
(on the application of SHUAI ZHANG)
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|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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|MING TAK NG
Mr Jonathan Auburn (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 20th March 2013
Crown Copyright ©
Mr Justice Turner:
The immigration rules
"The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom."
"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances…"
"The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality, Immigration and Asylum Act 2002 , one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules."
The "Partner" visa
"To qualify for entry clearance or leave to remain as the Partner of a Relevant Points Based System Migrant, an applicant must meet the requirements listed below. If the applicant meets these requirements, entry clearance or leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused."
"(h) An applicant who is applying for leave to remain, must have, or have last been granted, leave:
(i) as the Partner of a Relevant Points Based System Migrant…"
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is 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."
Immigration and Article 8
"In a case where removal is resisted in reliance on article 8, …[the] 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?"
"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."
Out of country applications and Article 8
"Is the interference proportionate to the permissible aim? … In many cases, refusal or removal does not mean that the family is to be split up indefinitely. The … policy is that if there is a procedural requirement (under the Immigration Rules, extra-statutory policies or concessions) requiring a person to leave the UK and make an application for entry clearance from outside the UK, such a person should return home to make an entry clearance application from there. In such a case, any interference would only be considered temporary (and therefore more likely to be proportionate). A person who claims that he will not qualify for entry clearance under the rules is not in any better position than a person who does qualify under the rules—he is still expected to apply for entry clearance in the usual way, as the entry clearance officer will consider article 8 claims in addition to applications under the rules… In addition, it may be possible for the family to accompany the claimant home while he makes his entry clearance application, in which case there will be no interference at all. For example, where a claimant is seeking to remain here on the basis of his marriage to a person settled in the UK, the policy is that they should return home to seek entry clearance to come here as a spouse under the relevant immigration rule. Where the spouse can accompany the claimant home while he makes his application, there will be no interference. Where this is not possible, the separation will only be temporary. The fact that the interference is only for a limited period of time is a factor that is likely to weigh heavily in the assessment of proportionality."
"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?"
"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."
"Not many would dispute, and I do not, that would-be immigrants who desire to remain permanently in this country should apply for permission to do so before coming here. It is the Government's policy that that should be so and that a failed asylum seeker should return, or be returned, to his or her country and make from there any applications for the right to reside in this country that he or she desires to make. But policies that involve people cannot be, and should not be allowed to become, rigid inflexible rules. The bureaucracy of which Kafka wrote cannot be allowed to take root in this country and the courts must see that it does not."
"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."
Chikwamba and requirement (h)(i)
Could the claimant have circumvented requirement (h) by relying on Rule 2 or making an "Outside the Rules" application?
"Immigration Officers, Entry Clearance Officers and all staff of the Home Office Immigration and Nationality Directorate will carry out their duties without regard to the race, colour or religion of persons seeking to enter or remain in the United Kingdom and in compliance with the provisions of the Human Rights Act 1998."
"First, we shall end the situation where those claiming the right to enter or remain in the UK on the basis of ECHR Article 8 – the right to respect for private and family life – do so essentially without regard to the Immigration Rules. The new rules will fully reflect the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government's and Parliament's view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis."
"…we consider the right to respect for family life to be a relevant consideration in the design of the Rules that apply to this category."
From this it must further be concluded that the Secretary of State considers that requirement (h)(i) is Article 8 compliant per se.
"…Article 8 is not breached by our refusal. The Secretary of State's policy is not to exercise discretion unless there are clear exceptional compassionate circumstances which have not previously been considered and which merit the exercise of discretion outside the Immigration Rules."
"In any event, the effect on innocent young couples is temporary…and is mitigated by the ability to disapply the rule in exceptional compassionate circumstances."
"I consider that, while decisions founded on human rights are essentially individual, it is hard to conceive that the Secretary of State could ever avoid infringement of article 8 when applying the amendment to an unforced marriage. So in relation to its future operation she faces an unenviable decision."
Can Chikwamba be distinguished?
"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."
"It has in the past been urged by the Home Office that there is relatively little hardship in breaking up a family by removal where the removed spouse can immediately apply for entry clearance in order to return. The decision of the House of Lords in Chikwamba  UKHL 40, for reasons which it is not necessary to reproduce here, has called a halt to this false logic. The likelihood of return via entry clearance should not be ordinarily treated as a factor rendering removal proportionate; if anything, the reverse is the case."
"We readily accept that since the decision of the House of Lords in Chikwamba  UKHL 40 it is rarely open to the SSHD to suggest that an appellant should leave the country and apply from abroad to join his spouse."
"It may at first blush seem odd that Article 8 rights may be infringed by an unjustified insistence that the applicant should return home to make the application, even though a subsequent decision to refuse the application on the merits will not. The reason is that once there is an interference with family or private life, the decision maker must justify that interference. Where what is relied upon is an insistence on complying with formal procedures that may be insufficient to justify even a temporary disruption to family life. By contrast, a full consideration of the merits may readily identify features which justify a refusal to grant leave to remain."
"Returning an applicant to his/her home country in order to make an entry clearance application may still be proportionate in a small number of cases."
Conclusion on requirement (h)(i)
Conclusion in the present case