Isiko & Anor, R (On Application of) v Secretary Of State For Home Department

A lawful immigration policy may be implemented even where removal interferes with family life under Article 8. The court reviewing an individual decision must not substitute its own assessment for that of the executive. It must determine whether the decision was permitted by law, applying anxious scrutiny and recognising the executive’s area of judgment in immigration and family-life cases.

Where a fundamental right is engaged, the decision-maker must show either that the right is not truly interfered with or that substantial objective justification exists. The more serious the impact, the more substantial the justification required. The mere absence of a threat to an interest listed in Article 8(2) does not prevent enforcement of a lawful immigration policy.

Peter and Susan Isiko sought judicial review of decisions by the Secretary of State directing their removal to Uganda. Their applications engaged family life because removal would separate Peter from his British wife and daughter and would affect other family relationships.

Hidden J quashed the removal decisions on the view that removal required a pressing need capable of justifying the disruption to the family. The Secretary of State appealed. The central issues were the legality of paragraph 8 of DP 3/96 and the proper intensity of judicial review where an administrative immigration decision engaged Article 8.

1. Appeal allowed. The Court of Appeal held that paragraph 8 of DP 3/96 was lawful. A general policy requiring removal normally to be enforced where marriage occurred after enforcement action was compatible with Article 8. The fact that implementation would usually interfere with family life did not make the policy unlawful.
2. The court adopted the approach in R (on the application of Mahmood) v Secretary of State for the Home Department [2000] All ER (D) 2191. Review under the Human Rights Act 1998 is supervisory. The court does not stand in the shoes of the executive or retake the decision on its merits. It asks whether the decision was permitted by law, while recognising an area of judgment in which democratic deference is appropriate.
3. Where a fundamental right is engaged, the decision-maker must demonstrate either that the proposed action does not interfere with the right or that substantial objective justification exists. The more serious the impact on those affected, the more substantial the justification required. Anxious scrutiny remains appropriate, but the concept of due deference must operate within that structured framework.
4. The court rejected the broader approach attributed to B v Secretary of State for the Home Department [2000] ImmAR 478, insofar as it required the court to form its own view of proportionality by substituting its judgment for that of the Secretary of State. Any inconsistency was not binding because the relevant proposition had not been considered in that case.
5. Applying the correct approach, the Secretary of State was entitled to weigh the applicants’ immigration history, the public interest in effective immigration control, and the compassionate circumstances affecting the family. The decisions were within the lawful discretion available. The appeal was allowed, with no order as to costs. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): allowed the Secretary of State’s appeal from the orders of Hidden J dated 11 August 2000, which had quashed the removal decisions. No order as to costs; leave to appeal to the House of Lords refused.