Court of Appeal Provides Guidance Regarding Interpretation of Huang
In June, we expressed concern that some courts were seeking to reintroduce the “truly exceptional” test in relation to claims under Article 8 of the European Convention on Human Rights (ECHR). In a welcome decision, AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801, the Court of Appeal has expressed concerns about “continuing controversy” about how the immigration courts should now deal with Article 8 claims and has set down clear guidance for the interpretation of the House of Lords’ judgment in Huang.
Article 8 of the ECHR concerns the right to respect to family and private life. It is often relied upon by applicants whose claims to remain in the UK cannot succeed under the UK Immigration Rules but have established a family or private life in the UK (eg by marrying, forming a civil partnership or having children). Prior to the House of Lords’ decision in Huang, in order to succeed under Article 8, it had to be shown that the case was “truly exceptional”. That test was rejected by the House of Lords, although they expressed an expectation that the number of claimants who would succeed under Article 8 would be a very small minority.
The Court of Appeal in AG (Eritrea), concerned that the Home Office’s legal representatives were still “reverting to a test of exceptionality as a surrogate for the art. 8 decision”, felt it necessary to reiterate that there is no such legal test. It pointed out that whilst it was true that successful Article 8 claims will be the exception rather than rule, “to treat exceptionality as the yardstick of success is to confuse effect with cause”.
Adopting the reasoning of earlier Court of Appeal judgments, the Court made it clear that the question of whether an interference with family or private life can be justified or not by the requirements of immigration control is a question of fact in each case, and does not normally raise an issue of law. The Court went on to state:
“What matters is not that courts and tribunals should adopt a set formula for determining proportionality, but that they should have proper and visible regard to relevant principles in making a structured decision about it case by case.”
In a further welcome development, the Court gave guidance regarding the question of whether Article 8 is engaged in the first place. In the decision under appeal, the Asylum and Immigration Tribunal had stated, “It has always been difficult to establish a private life which will engage Article 8.” The Court of Appeal made it clear that the threshold of engagement with Article 8 is not a specially high one. Once the article is engaged, the question turns to whether the interference is justified, the proportionality test outlined above.
The Court found that in the case before it, “the private life established in this country by a lone 14-year old whose asylum claim is not processed for four years, who has no known family in Eritrea and cannot speak the language, and who has acquired an education, psychological support and a social circle here, not only brings him very plainly within art. 8(1) but raises an obvious question about the necessity and proportionality of removing him notwithstanding the legality and proper objects of immigration control.”
