Right to family and private life: interpretation of Huang
Despite the apparent clarity of the House of Lords’ judgment in Huang; Kashmiri v SSHD [2007] UKHL11, the UK courts appear to be seeking to re-impose the ‘exceptionality’ test in respect of Article 8 of the European Convention on Human Rights (ECHR) claims.
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 (e.g. by marrying, forming a civil partnership or having children), often during periods of delay by the Home Office in considering their initial applications under the UK Immigration Rules.
Prior to the House of Lords’ judgment in Huang in March 2007, the test applied in such cases was that in order to succeed under Article 8, ECHR it would have to be shown that the individual case was “truly exceptional”. However, the House of Lords specifically rejected that test. They stated that it was based upon a misunderstanding of Lord Bingham’s words in the earlier case of Razgar. The UK House of Lords said in Huang:
"In an article 8 case…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 be reasonably 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. The suggestion that it should is based on an observation of Lord Bingham in Razgar… He was there expressing an expectation…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.”
There have now been a number of cases in which less senior courts have sought to interpret this decision.
In KL (Article 8-Lekstaka-delay-near-misses) Serbia & Montenegro [2007] UKAIT 00044, the Asylum and Immigration Tribunal (AIT), considered previous guidance set out by the UK Court of Appeal for considering the significance of delay in deciding Article 8 cases. They examined the judgment of the UK Court of Appeal in HB (Ethiopia) [2006] EWCA Civ 1713 in the light of the House of Lords’ judgment in Huang. The Court of Appeal had said in HB that:
“The application to an Article 8 case of immigration policy will usually suffice without more to meet the requirements of Article 8(2) [Razgar]. Cases where the demands of immigration policy are not conclusive will be truly exceptional [Huang].”
The reference in the passage quoted to Huang relates not to the House of Lords’ judgment, but to the Court of Appeal’s decision ([2005] EWCA Civ 105) which was subsequently overturned by the House of Lords on appeal.
The AIT considered the House of Lords’ judgment in Huang, in which it had rejected the exceptionality test. The AIT considered that to give effect to the House of Lords’ decision it was sufficient to amend the second sentence of the Court of Appeal’s guidance to read as follows:
“There is an expectation that cases where the demands of immigration policy are not conclusive will be truly exceptional.”
The Court of Appeal itself has also taken the opportunity to give guidance upon the application of Huang. This was done in KR (Iraq) [2007] EWCA Civ 514. The Court of Appeal’s interpretation is similar to that of the AIT in KL (Article 8-Lekstaka-delay-near-misses)( Serbia & Montenegro).
Lord Justice Auld, with whom Lord Justice Smith agreed, stated that the House of Lords had:
“…made clear that the notion is not a threshold or criterion for the engagement of Article 8(1) in asylum or extradition cases; it is an “expectation” that it will be exceptional for recourse to Article 8, read as a whole, to overcome the otherwise lawful removal of a claimant from the jurisdiction.”
The problem the interpretations by the AIT in KL (Article 8-Lekstaka-delay-near-misses)( Serbia & Montenegro) and the Court of Appeal in KR(Iraq) is that both courts appear to have sought to re-impose a legal test of exceptionality, tempered only by the qualification that the test sets out an expectation, rather than a requirement. However, the House of Lords plainly intended that exceptionality should be removed as a legal concept from the article 8 test entirely.
The House of Lords’ expressed view that they expected only a very small minority of cases to satisfy the article 8 test was a reference to the number of likely successful appellants, rather than to any legal concept. In any event, it is in the nature of expectations that they can be proved to be wrong, and it is difficult to believe that the House of Lords intended to create a legal test founded upon such an uncertain basis.
The comment of Lord Justice Auld in another recent Article 8 case, MT(Zimbabwe) [2007] EWCA Civ 455, captures the problem:
‘…however the matter is expressed there is no doubt that the interests of family life will not usually prevail over the interests of immigration control. The difficulty is in expressing that general understanding in any sort of guiding rule or principle. To speak simply of ‘exceptional’ or ‘rare’ cases does nothing to explain what principle should be applied in identifying such cases; and that, it seems to me with respect; is what the House of Lords warned of in Huang.
Neither KL (Serbia & Montenegro) nor KR (Iraq) turned upon the question of the interpretation of Huang, and no immediate challenge is therefore likely to these decisions on this basis. However, there is concern that the “expectation of an exception” test will be adopted by both the Home Office and the AIT in determining future article 8 claims. Ultimately the House of Lords may yet have to revisit the issue and reissue the warning that they gave in Huang.
