R (Mahmood) v Secretary of State for the Home Department

Judicial review of decisions affecting fundamental rights requires anxious scrutiny. The greater the interference, the more substantial the objective justification required. The court retains a supervisory role and does not substitute its assessment of the merits for the executive's decision.

Fair and consistent immigration control ordinarily justifies requiring an illegal entrant seeking residence through marriage to obtain entry clearance abroad. Apparent satisfaction of the substantive immigration requirements does not itself justify waiving that requirement. Exceptional circumstances may justify a waiver.

Article 8 does not generally require a state to accept a married couple's chosen country of residence. The possibility of maintaining family life abroad, and knowledge of precarious immigration status when marrying, are relevant considerations.

The appellant, a Pakistani citizen who had entered the United Kingdom clandestinely, unsuccessfully claimed asylum. He married a British citizen shortly before enforcement action began. His wife had grown up partly in Pakistan, and her parents and siblings lived in the United Kingdom. The couple subsequently had two young children.

The Secretary of State refused permission to remain through marriage. His final decision, dated 29 September 1999, considered the marriage, the children and Article 8. He concluded that the family could live together in Pakistan, or that the appellant could apply abroad for entry clearance to return as a spouse.

Owen J dismissed the application for judicial review on 2 November 1999. The appellant appealed with permission. The central issues were the intensity of review where family life was affected, the effect of the intervening commencement of the Human Rights Act 1998, and whether requiring removal and an overseas entry-clearance application was justified.

The appeal was dismissed unanimously.

1. Per Laws LJ, with May LJ agreeing, common-law review varied in intensity according to the subject matter. Interference with a fundamental right required substantial objective justification. The greater the interference, the stronger the justification required. A conventional application of Wednesbury review alone would therefore provide insufficient scrutiny, although the court's function remained supervisory.

2. The Secretary of State's decision survived that enhanced scrutiny. Consistent treatment was essential to firm and fair immigration control. Ordinarily, an illegal entrant seeking residence through marriage had to obtain entry clearance in the country of origin. Apparent compliance with the substantive requirements did not itself justify avoiding that process. Exceptional circumstances could justify a waiver, but the Secretary of State reasonably found none.

   The reasoning in Ex p. Hashim that verified eligibility made an overseas application unnecessary was disapproved. Its factual concession about eligibility also distinguished it from the present case. The Secretary of State had considered the wife's relationships with her relatives, despite omitting express discussion of them from the final letter.

3. Per Laws LJ, with May LJ agreeing, judicial review generally concerned the legality of the decision already made. It did not require a separate examination of possible future implementation. Circumstances could exceptionally require prospective guidance, but this case did not. The limited retrospective operation of sections 7(1)(b) and 22(4) of the Human Rights Act 1998 did not apply to proceedings brought by the appellant.

4. On the counterfactual assumption that Article 8 applied directly, Laws LJ would also have found no breach. Article 8 imposed no general obligation to respect a couple's choice of residence. The Secretary of State could reasonably conclude that the wife and children could accompany the appellant to Pakistan. The Act did not authorise judges to replace executive decision-making on the merits.

5. The Master of the Rolls concurred separately. Because the Secretary of State had expressly assessed compliance with Article 8, an erroneous assessment would itself make the decision flawed. Convention review required anxious scrutiny of whether the decision-maker could reasonably conclude that interference was necessary for a recognised legitimate aim. General substantial justification alone would not suffice where the Convention prescribed stricter conditions.

   His assessment considered obstacles to family life abroad, established family ties, knowledge of precarious immigration status and the particular circumstances. Relocation was a viable option. Separation from the wife's wider family was material, but carried less weight than preserving the immediate family unit. An overseas settlement application would itself require consideration of Article 8. Possible failure or temporary separation did not excuse compliance, although any application should receive reasonable expedition.

The appeal was dismissed. Leave to appeal to the House of Lords was refused.

• Court of Appeal: Dismissed the appeal unanimously on 8 December 2000, affirming the dismissal of judicial review. Mantell LJ had granted permission to appeal on 6 April 2000. Leave to appeal to the House of Lords was refused.
• High Court, Queen's Bench Division: Owen J dismissed the judicial review application on 2 November 1999. The challenge was treated as directed against the Secretary of State's final decision of 29 September 1999. No citation for the High Court judgment was supplied.