Huang & Ors v Secretary of State for the Home Department

On a statutory immigration appeal under Article 8, the adjudicator must determine proportionality independently. The task is not confined to reviewing whether the Secretary of State's decision falls within a range of reasonable responses. Where an applicant cannot satisfy the Immigration Rules, the adjudicator must respect the balance those Rules strike between immigration control and individual rights. An appeal may succeed only where the particular circumstances are truly exceptional and proportionality requires departure from the relevant Rule. That assessment belongs to the adjudicator. A margin of discretion remains appropriate where a court must judge the merits or weight of government policy, but Convention proportionality requires more than conventional irrationality review.

Three immigrants appealed against decisions of the Immigration Appeal Tribunal concerning their rights under Article 8. Mrs Huang, a Chinese citizen separated from her husband, sought to remain with her settled daughter and her daughter's family. Mr Kashmiri, an Iranian citizen, sought to remain with his parents and siblings, who had obtained refugee status. Mr Abu-Qulbain, a Palestinian whose country of habitual residence was Lebanon, relied on his education and his engagement to a British citizen.

None qualified under the Immigration Rules. Adjudicators allowed Huang's and Abu-Qulbain's Article 8 appeals, but the Tribunal allowed the Secretary of State's appeals. Kashmiri's Article 8 appeal was dismissed by both appellate authorities. His asylum and Article 3 claims, and those of Abu-Qulbain, had also failed.

The appeals were selected as lead cases concerning the approach stated in M*(Croatia) [2004] INLR 327. The central question was whether an adjudicator must decide proportionality independently or merely review whether removal falls within a range of reasonable assessments.

1. Huang's appeal was allowed. Kashmiri's and Abu-Qulbain's appeals were dismissed. The court delivered a single judgment. Huang's circumstances required reconsideration by the Immigration Appeal Tribunal. The other appeals could not succeed under the correct legal approach (paras 63–64).

2. An adjudicator exercising the human rights jurisdiction under section 65 and Schedule 4 to the Immigration and Asylum Act 1999 must decide whether the challenged action violates Convention rights. The existence of several reasonable answers to a proportionality question does not convert a merits jurisdiction into review. The statutory wording alone did not conclusively settle the jurisdiction's scope, but independent assessment followed from the governing principles and the duty to protect Convention rights (paras 22–26, 42, 55–60).

3. The earlier approaches in Edore v Secretary of State and the Court of Appeal decision in R(Razgar) v Secretary of State could not stand with the subsequent House of Lords reasoning in Razgar. The court could therefore depart from them. An adjudicator's jurisdiction could not alternate between review and independent assessment according to whether the facts differed from those before the Secretary of State. R(Daly) v Secretary of State also established that Convention proportionality requires scrutiny beyond conventional Wednesbury review (paras 36–45).

4. Where a court judges the merits or weight of government policy, democratic responsibility warrants a margin of discretion. Nevertheless, the government must provide substantial reasoned justification addressing pressing social need and proportionality. These appeals involved individual applications of immigration policy. The adjudicators were not entitled to question the policy embodied in the Immigration Rules. They had to respect the balance those Rules struck with parliamentary approval (paras 51–58, 61–62).

   That balance generally determined Article 8 proportionality, but did not exhaust every possible case. An applicant outside the Rules could succeed only where the circumstances were truly exceptional and proportionality demanded a favourable outcome. Whether that threshold was met was entirely for the adjudicator, without deference to the Secretary of State's assessment of the individual case (paras 59–60).

5. The Tribunal's decisions in Huang and Kashmiri were legally defective because they deferred to the Secretary of State's individual proportionality assessment. However, no properly directed tribunal could find truly exceptional circumstances in Kashmiri or Abu-Qulbain. Huang's history might support such a finding, without predetermining the Secretary of State's appeal on reconsideration (paras 63–64).

6. Fresh evidence in Abu-Qulbain was excluded because it introduced a new factual case which had not been raised below or in the grounds of appeal, and which the Secretary of State had lacked a reasonable opportunity to investigate. There had been no procedural unfairness below. In a postscript, the court considered it unhelpful to describe the required Article 8 assessment in terms of flagrancy; domestic Article 8 cases were accepted as requiring no such threshold (paras 20, 65).

• Court of Appeal: In [2005] EWCA Civ 105 , allowed Huang's appeal for reconsideration by the Immigration Appeal Tribunal and dismissed the appeals of Kashmiri and Abu-Qulbain.
• Immigration Appeal Tribunal: Allowed the Secretary of State's appeals against the successful Article 8 appeals of Huang and Abu-Qulbain. Huang's Tribunal decision was notified on 25 September 2003. Dismissed Kashmiri's appeal, which was confined to Article 8.
• Adjudicators: Allowed Huang's Article 8 appeal by a determination promulgated on 13 January 2003. Dismissed Kashmiri's asylum, Article 3 and Article 8 appeals by a determination promulgated on 30 April 2003. Dismissed Abu-Qulbain's asylum and Article 3 appeals but allowed his Article 8 appeal.
• Secretary of State: Refused Huang's application for indefinite leave to remain and refused the asylum claims of Kashmiri and Abu-Qulbain, giving rise to the statutory appeals.