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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kotecha & Anor, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2070 (Admin) (29 July 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/2070.html Cite as: [2011] EWHC 2070 (Admin) |
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& CO/5952/2010 |
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| The Queen on the application of ANAND NARENCHA KOTECHA The Queen on the application of RUMA RANI DAS |
Claimants |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Miss Lisa Busch (instructed by Treasury Solicitors) for the Defendant
Hearing date: 12th July 2011
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Crown Copyright ©
The Hon Mr Justice Burnett:
Introduction
Kotecha Facts
"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)
"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)
"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.
Das Facts
"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.
"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)
The Strasbourg Authorities
"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."
"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.
"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.
"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).]"
"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."
"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."
The English Authorities
"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. "
"…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."
"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."
"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. "
"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."
"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.
"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.
"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 . . .' "
"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?"
"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."
"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]
"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.
Submissions on the individual cases
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.
Discussion
Conclusion
