House of Lords on family life - analysis

Updated by Gherson and Co on Friday 27 April 2007. | | | |

The House of Lords has recently given its landmark judgment in Huang; Kashmiri v SSHD [2007] UKHL 11. The case is absolutely fundamental to the way in which immigration courts will now have to interpret and apply obligations owed to those seeking entry or leave to remain in the United Kingdom on the basis that removal would breach their rights to family life under Article 8 of the European Convention on Human Rights, which protects the rights to family and private life.

The appeals primarily concerned the jurisdiction of the immigration courts in cases involving human rights to private and family life under Article 8 once an initial application for leave to enter or remain on such basis has been rejected by the Home Office. This has proved to be a particularly vexed and difficult question because of the fundamental issues involved.  Before the House of Lords decided Huang & Kashmiri, the approach was that the UK Immigration Rules and Home Office policy provided the framework for determining whether an individual would be allowed to remain in the UK. If an individual could not show that they came within the framework of the Immigration Rules, then, on the assumption that Home Office policy and the Immigration Rules generally implemented the UK’s obligations to respect for the rights to family and private life, the UK courts had held that it would be difficult for that individual to demonstrate an entitlement to remain in the UK.

The second issue in Huang & Kashmiri was the role of an immigration judge in the Asylum and Immigration Tribunal (AIT) in re-examining the Home Office’s decision: whether the immigration judge was entitled to re-examine the factual merits of the application, or whether the immigration judge could only review the way in which the Home Office had made the decision.

The Court of Appeal (reported as Huang [2005] EWCA Civ 105) had earlier decided that the balance struck by the Immigration Rules would generally deal with respect for family and private life. However, there was "a residue of truly exceptional" cases, to be identified on a case-by-case basis, that might allow an individual to remain, even though they could not meet all the requirements of the Immigration Rules.

The obvious difficulty with the Court of Appeal’s approach was that it imposed what was arguably a very high test. A case where the Immigration Rules generally struck a fair balance in cases involving family life rights would have to be truly exceptional to succeed. The further difficulty was that "exceptional" had no clearly defined legal meaning and was a question of fact for the individual decision-maker.

In returning to first principles, the House of Lords completely rejected the "exceptionality" test. The House of Lords decided that the issue for the immigration judge to decide, by looking at all of the facts, is whether the Home Office’s decision is compatible with Article 8. If it is not the decision is unlawful and the appeal must be allowed. While declining to lay down any sharp legal test, the general approach in family life cases is set out at paragraph 20 of the judgment of the House of Lords:

"… 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 article 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 … need ask in addition whether the case meets a test of exceptionality…"  (emphasis added)

It is important to note that the House of Lords, while emphasising the need to demonstrate that there were significant reasons why family life could not be continued in another country, stopped short of requiring an applicant to show that there were ‘insurmountable obstacles’ to enjoying family life outside the UK.

The House of Lords in Huang & Kashmiri had other very important things to say about the approach to be taken to Article 8. The main question in most Article 8 cases is whether the interference with private or family life in the interests of immigration control is proportionate.  If the interference is too great to be justified by an appeal to the interests of maintaining immigration control, the case will succeed.  The House of Lords held that the balancing exercise needs genuinely to evaluate the position of the particular individual and set it against the need for immigration control.
 
The House of Lords puts emphasis on the sensitivity to individual and cultural characteristics that must inevitably come in to play in looking at family life under Article 8:

"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."

In the light of the House of Lords’ judgment the approach to Article 8,  family life cases have therefore changed radically.

There may be cases involving claims on the basis of entitlement to remain on the grounds of respect for the right to family life that have been previously rejected by the immigration courts because of their reliance on earlier case law. In some cases, it may be possible to re-open the claims with the Home Office on the basis of the clarification of the law provided by the House of Lords. It will be very important to take accurate legal advice about the effect of the decision on the particular case in deciding whether this will be possible.