House of Lords hands down judgment in four key immigration and Article 8 cases

Wednesday 25 June 2008

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The House of Lords hands down judgment in four key immigration and Article 8 cases which have profound implications for those dealing with Article 8 claims. Three of these cases involved members of chambers’ immigration team.

Duran Seddon junior in EB Kosovo (known to everyone as HB (Ethiopia) in the Court of Appeal) was successful in the House of Lords, overturning the CA decision and affirming Huang (and in particular that the approach in Huang relevant to approach to delay).  Judgment handed down today. Their Lordships found that there is no prescriptive approach to the use of delay, or restriction as set out by the CA in its nine or so propositions.
click here to read the judgment

In the leading speech Lord Bingham sets out three routes by which delay is relevant: (1) strengthening of private and family life ties; (2) potentially undermining the argument on behalf of SSHD that family life is pursued in 'precarious' immigration circumstances (i.e. longer a delay – particularly if they have a good claim for entry for example more expectation of being able to stay); and (3) reduces weight to be attached to SSHD's immigration policy side of the proportionality balance.

Sonali Naik junior in Beoku-Betts, where Lord Brown giving the leading judgment resolves the contentious issue of the relevance of third party rights in Article 8 appeals and widens the interpretation of the relevant statutory framework to include the rights of third party non-appellants family members.  Lady Hale held that “the right to respect for family life of one family member necessarily encompasses the right to respect for the family life of others. click here to read the judgment

Nicola Rogers junior in AL(Serbia) (linked with Rudi). The case concerned the family ILR exercise and whether it was unlawful to exclude unaccompanied minors from its ambit. The House of Lords reluctantly rejected the argument that there was no unlawful discrimination in that exclusion. However although Lord Bingham expressly states: that the policy was limited to families nevertheless "permitted compelling claims by those falling outside the policy to be recognised and accommodated [and] the appellants may yet be able to advance such claims". click here to read the judgment

In a fourth case Chikwamba, considered the question of when and for how long it may be appropriate to require an appellant in an article 8 appeal to leave the UK and seek an entry clearance to return and the relevance of this to the proportionality assessment. This will have an important impact on future cases where mandatory re-entry bans are applicable. click here to read the judgment

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