On Wednesday 21 March 2007, the House of Lords handed down its joint opinion in the cases of Huang -v- Secretary of State for the Home Department; Kashmiri -v- Secretary of State for the Home Department  UKHL 11.
This is a landmark decision concerning the intensity of review with which the statutory immigration appellate authority (now the unified 'Asylum and Immigration Tribunal') must approach immigration decisions of the Secretary of State which are alleged to constitue a disproportionate interference with the right to respect for private and family life under Article 8 ECHR.
Duran Seddon a member of the immigration team at Garden Court Chambers, was junior counsel for Mr Kashmiri.
In the course of its decision, the House of Lords:
(1) explained the celebrated passage of Lord Steyn in R (Daly) -v- SSHD  UKHL 26,  2 AC 532 where, on considering the application of the ECHR in the context of an application for judicial review, he held that the Human Rights Act had not resulted in a 'shift to merits review'. The House has now explained that the point that he was making was that it was not for a judge to decide what government policy should be (in that case, policy under the Prison Act 1952). Such decisions are for the primary decision maker, albeit the application of such policy would be scutinised by the Court to ensure that there is sufficient justification for inteference or discrimination in the ambit of human rights. By contrast, the role of an mmigration appellate authority is not to review the decision of another decision-maker, it is to decide for itself whether the decision is compliant with the Convention (see at para 13);
(2) distinguished the decision of the House of Lords in the housing case of Kay -v- Lambeth LBC  UKHL 10,  2 AC 465 in which the House found that the right of a landlord to enforce a claim for possession under domestic law against an occupier whose right to occupy had ended, would, in most cases, automatically supply the justification required under Article 8(2). The analogy sought to be drawn by the Secretary of State between the domestic housing law and the Immigration Rules was not persuasive. Domestic housing policy was the subject of discussion and debate in Parliament over many years with the competing interests fully represented. The same could not be said of the Immigration Rules - they do not represent a considered democratic compromise and the immigration legislation itself presupposes that an applicant may be successful under Article 8, even though they cannot qualify under the Immigration Rules (see at para 17).
In summary, the House of Lords therefore found as follows:-
(1) The role of the appellate immigration authority, particularly when viewed in the light of the relevant statutory machinery (the HRA and the immigration legislation), is not a secondary, reviewing function. In deciding whether the decision under challenge is compatible with the Convention, the Immigration Judge is not restricted to considering whether the Secretary of State misdirected himself, acted irrationally or was guilty of procedural impropriety. The Immigration Judge must decide for him or herself whether the decision is compatible with Convention rights ie whether it constitutes a proportionate interference with family life. The decision of the Court of Appeal below had been correct on this point and the decisions in cases such as Edore -v- SSHD  1 WLR 2979,  EWCA Civ 716 and M (Croatia) -v- SSHD  UKIAT 24,  INLR 327 were incorrect (see at paras 11-12).
(2) In cases where Art 8 ECHR is in play, the applicant will plainly not satisfy the categories of admission under the Immigration Rules. In such cases, the first task of the appellate immigration authority is to establish the relevant facts - the authority will generally be in a better position to do this than the Secretary of State. The facts must be explored and summarised with care in the decision. The authority will also consider and weigh factors going to justify an interference with family life under Art 8(2). In doing so, the Court will give weight to countervailing factors, the need to uphold an effective system of control and the Secretary of State's judgment in relation to the same. HOWEVER, the Court does not 'defer' to the Secretary of State. The task of the Court is the ordinary judicial function of weighing up the competing considerations on each side (see at paras 15-16).
(3) The immigration appellate authority must have regard to the valuable Strasbourg jurisprudence under Article 8. The main importance of the case law is in illuminating the core value which article 8 exists to protect, namely that the family (or extended family) is the group upon which many people most heavily depend, socially, emotionally and 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. Among the relevant factors are: age, health, vulnerability of the applicant; closeness of ties and family history, dependence, emotional support and cultural traditions (see at para 18).
(4) IMPORTANTLY, where the ultimate question reached is the question of proportionality, the issue for the 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". In deciding this issue, the appellate authority NEED NOT ask in addition whether the case meets a test of 'exceptionality'. Thus the decision of the Court of Appeal to the effect that, where a case does not meet the Immigration Rules, in order to succeed under Article 8, the applicant must show that their case is so truly exceptional on its particular facts so that the imperative of proportionality demands a favourable outcome, is rejected by the House of Lords. The suggestion that a case needed to be an 'exceptional' one derived from the opinion of Lord Bingham in Razgar but he had not, in that decision, intended to set down a legal test. He was simply expressing an (enduring) expectation as to the numbers of cases likely to succeed (see at para 20).
(5) Thus in both the cases of Huang and Kashmiri, the original Tribunals had mis-directed themselves and the appeals would be remitted to the AIT for re-determination according to law (see at paras 21-22)