QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF AMIN||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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(Official Shorthand Writers to the Court)
Mr R Fortt (instructed by Treasury Solicitors) appeared on behalf of the Defendant
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MR JUSTICE OUSELEY:
"The Secretary of State shall from time to time... 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..."
"If a person does not meet the requirements of paragraph GEN.2.1 entry will be refused."
Again, section D-ECP headed "Decision on application for entry clearance as a partner" contains D-ECP.1.2 which says:
"Where the applicant does not meet the requirements for entry clearance as a partner the application will be refused."
D-ECP.1.1 sets out what those requirements are.
"that the arrangements where the Entry Clearance Office is able to refer a difficult case to the Secretary of State for advice on the application of the exceptional circumstances policy is sufficient to render the decision making process as a whole lawful and compatible with the European Convention on Human Rights."
Paragraph 45 says:
"Even if we were wrong about that [that is its interpretation of "exceptional circumstances"], it would be necessary to apply a proportionality test outside the new rules as was done by the UT. Either way, the result should be the same. In these circumstances, it is a sterile question whether this is required by the new rules or it is a requirement of the general law. What matters is that it is required to be carried out if paras 399 or 399A do not apply."
"Either way, it is necessary to carry out a two stage process."
"the Secretary of State will be obliged to consider granting leave to remain outside the Rules. If she does not, where there is an appeal the First-Tier Tribunal will be obliged to consider allowing the appeal, and where there is no appeal, judicial review will lie.
35. The important points for present purposes are that there is full coverage of an individual's rights under Article 8 in all cases by a combination of the new rules and (so far as may be necessary) under the Secretary of State's residual discretion to grant leave to remain outside the Rules and that, consequent upon this feature of the overall legal framework, there is no legal requirement that the new rules themselves provide for leave to remain to be granted under the Rules in every case where Article 8 gives rise to a good claim for an individual to be allowed to remain. This had always been the position in relation to the operation of the regime of immigration control prior to the introduction of the new rules, and the introduction of the new rules has not changed these basic features of the regime.
36. Therefore, in my judgment, the Claimant's challenge to the lawfulness of the new rules fails. No matter how closely, or not, the new rules track the detailed application of Article 8 in individual cases, the immigration control regime as a whole (including the Secretary of State's residual discretion) fully accommodates the requirements of Article 8. The fact that the new rules do not do that in all cases by themselves does not render them unlawful."
"If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying... then the Secretary of State shall as soon as may be make such changes... in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution..."