Hussain v Secretary Of State For Home Department

In an Article 8 removal case, the tribunal must consider the human rights of the person facing removal under section 65(1) of the Immigration and Asylum Act 1999. It may also consider the effect on a spouse and children, but that wider impact does not replace the statutory focus on the applicant. The assessment requires a balance between effective immigration control and interference with private and family life. Immigration history, temporary separation and a reasonable out-of-country entry-clearance process are relevant. An appellate tribunal may intervene where the first-instance determination is unsustainable because it failed to perform that balance.

This was an application by a Pakistani national for permission to appeal from an Immigration Appeal Tribunal decision. The applicant had entered the United Kingdom illegally in 1995, married a British citizen in 1999, and formed a close relationship with her four children. The Secretary of State refused leave to remain and a human-rights application.

A Special Adjudicator found removal to Pakistan disproportionate under Article 8. The IAT allowed the Secretary of State’s appeal, accepting family life but treating removal as temporary and an entry-clearance application as a reasonable route. The issues were whether the IAT could interfere with the Adjudicator’s assessment and how it should account for the effect of removal on the wife and stepchildren.

Lord Justice Tuckey delivered the judgment and Lord Justice Potter agreed. The application for permission to appeal was refused.

1. Appellate intervention. Following [2004] EWCA Civ 56, the objection that the IAT lacked power to interfere with the Special Adjudicator’s decision was no longer arguable. By describing the decision as unsustainable, the IAT had shown that it considered itself required to adopt a different view. The separate complaint of inadequate reasons also failed. The IAT had disagreed because the Adjudicator had failed to balance effective immigration policy against interference with family life and had treated only the inconvenience of applying for leave to enter from abroad.
2. Article 8 and other family members. The IAT correctly identified that the human rights of the person facing removal were the rights to be determined. That was the effect of section 65(1) of the Immigration and Asylum Act 1999. This did not prevent the tribunal from considering the impact of removal on the spouse and stepchildren. The court rejected the submission that the IAT had failed to consider that impact. It was the subject of the case, and the pending decision in AC could not produce a more favourable result on this issue.
3. Application of the proportionality assessment. The IAT had accepted the existence of family life and that the whole family could not return to Pakistan. It was nevertheless entitled to consider the applicant’s illegal entry and subsequent immigration history, the legitimate aim of effective immigration control, the temporary nature of the interference, the possibility of an entry-clearance application, the stated six-month processing period and the absence of an inevitable family breakdown. No arguable error of law was shown. Permission to appeal was therefore refused. Order: application for permission to appeal refused.

1. Court of Appeal (Civil Division): In [2004] EWCA Civ 1190, refused permission to appeal.
2. Immigration Appeal Tribunal: Allowed the Secretary of State’s appeal from the Special Adjudicator, finding the interference justified by effective immigration control and the entry-clearance route reasonable.
3. Special Adjudicator: Held that removal to Pakistan to seek entry clearance would be disproportionate under Article 8.