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

Where executive action interferes with a fundamental freedom, judicial review remains supervisory but operates on a sliding scale. The graver the interference, the more substantial the objective justification required. The court must not retake the merits of the executive decision.

Firm and fair immigration control may require an unlawful entrant seeking residence on marriage grounds to obtain entry clearance abroad, even if the substantive requirements appear capable of being met. A waiver without exceptional circumstances would unfairly prefer that person over applicants who comply with the entry-clearance process. Article 8 does not generally oblige a state to accept a non-national spouse for settlement where the family can reasonably live together elsewhere.

The appellant, a Pakistani national and illegal entrant, married a British citizen and had two young children with her. The Secretary of State refused to allow him to remain and proposed his removal. He considered that the family could relocate to Pakistan or that the appellant could apply there for entry clearance as a spouse.

Owen J dismissed the appellant’s application for judicial review. On appeal, the appellant challenged the intensity of review, the requirement that he apply for entry clearance abroad, and the relevance of Article 8 after the coming into force of the Human Rights Act 1998.

The central issues were whether a pre-commencement removal decision should be reviewed by direct application of Convention rights, and whether removal unlawfully interfered with family life.

1. The appeal was dismissed unanimously. Laws LJ gave the principal judgment, with which May LJ agreed. The Master of the Rolls agreed in the result.

2. Per Laws LJ, conventional Wednesbury review was insufficient where a fundamental freedom was engaged. The common law requires a sliding scale of review: the greater the decision’s impact on the individual, the more substantial the objective justification required. This remained a supervisory jurisdiction. It did not permit the court to substitute its assessment of the merits for that of the Secretary of State.

3. The Secretary of State had acted lawfully in insisting on entry clearance. Consistent immigration control required comparable treatment of those seeking residence through marriage. An illegal entrant could not ordinarily bypass the entry-clearance queue merely because he might satisfy the substantive requirements of paragraph 281 of the Immigration Rules. Exceptional circumstances were required to justify that preference, and none existed here.

4. Per Laws LJ, judicial review of a decision made before 2 October 2000 was generally concerned with the legality of that historic decision. It was not a separate review of every future act by which the decision might be implemented. The more intensive common-law scrutiny applicable to fundamental freedoms would ordinarily provide the appropriate starting point when Convention rights later became directly applicable under the Human Rights Act 1998.

5. In any event, direct application of Article 8 would not have altered the result. Article 8 did not generally require the state to respect a married couple’s chosen country of residence or to admit a non-national spouse for settlement. The Secretary of State could reasonably conclude that the appellant’s wife and children could accompany him to Pakistan. The Master of the Rolls additionally held that, because the Secretary of State had expressly considered Article 8, the decision should be assessed as if the Act were in force; applying anxious scrutiny, removal was necessary for orderly and fair immigration control and did not violate Article 8.

• Court of Appeal (Civil Division): Appeal dismissed: [2000] EWCA Civ 315.
• High Court, Queen’s Bench Division (Owen J): Dismissed the application for judicial review on 2 November 1999.