Huang & Ors v Secretary of State for the Home Department

On an appeal alleging a breach of Article 8, an immigration adjudicator must decide proportionality independently. The adjudicator must not ask only whether the Secretary of State’s decision fell within a range of reasonable responses.

Where the appeal concerns the individual application of an established immigration policy, rather than the lawfulness or merits of policy itself, the adjudicator does not defer to the Secretary of State’s assessment of proportionality in that individual case. The Immigration Rules HC 395 nevertheless command substantial respect. An appellant who cannot meet the Rules succeeds only where the facts are truly exceptional and proportionality requires an outcome outside them.

Three linked appeals raised the proper approach to an Article 8 proportionality challenge to an immigration decision.

Mrs Huang, a Chinese national, had been refused settlement as the dependent parent of her daughter settled in the United Kingdom. The adjudicator allowed her Article 8 appeal, but the Immigration Appeal Tribunal allowed the Secretary of State’s appeal. Mr Kashmiri, an Iranian national, and Mr Abu-Qulbain, a Palestinian formerly resident in Lebanon, had respectively failed and succeeded before adjudicators on Article 8 grounds; the Tribunal dismissed Mr Kashmiri’s appeal and allowed the Secretary of State’s appeal in Mr Abu-Qulbain’s case.

The common issue was whether an adjudicator should review the Secretary of State’s assessment for reasonableness or decide proportionality on its merits.

1. Mrs Huang’s appeal was allowed. The Tribunal’s decision was set aside because it had treated the proportionality question as one of deference to the Secretary of State’s individual assessment. Her case was remitted to the Tribunal for fresh consideration. The appeals of Mr Kashmiri and Mr Abu-Qulbain were dismissed because, on their facts, no properly directed tribunal could find truly exceptional circumstances.
2. The court rejected the approach in M*(Croatia) [2004] INLR 327. In an appeal under section 65 of the Immigration and Asylum Act 1999, an adjudicator must decide whether removal would violate Article 8. The task is not confined to asking whether the Secretary of State’s decision fell within a range of reasonable or rational responses.
3. The court held that the earlier Court of Appeal approach could not stand with the House of Lords’ reasoning in R (Razgar) v Secretary of State [2004] 2 AC 368. On proportionality, the adjudicator exercises his or her own judgment, taking account of material not before the Secretary of State. The court also applied R (Daly) v Secretary of State [2001] 2 AC 532: proportionality can require an assessment of the balance struck, rather than conventional Wednesbury review.
4. A distinction remains between judging policy and determining an individual case. Where a human-rights challenge requires the court to assess the merits or weight of government policy, the democratic decision-maker has a discretionary area of judgment, subject to intensified proportionality review. Here, however, the adjudicator was not required to question immigration policy.
5. The Immigration Rules HC 395, approved by Parliament, ordinarily strike the balance between immigration control and Article 8 rights. They are not exhaustive. An adjudicator may allow an Article 8 appeal outside the Rules only where the facts are truly exceptional and proportionality requires that result. The adjudicator makes that exceptional-case judgment independently; the Rules, rather than the Secretary of State’s view in the particular case, supply the governing restraint.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 105, allowed Mrs Huang’s appeal and remitted her case to the Immigration Appeal Tribunal; dismissed the appeals of Mr Kashmiri and Mr Abu-Qulbain.
• Immigration Appeal Tribunal: Allowed the Secretary of State’s appeals in Mrs Huang’s and Mr Abu-Qulbain’s cases, and dismissed Mr Kashmiri’s Article 8 appeal.
• Adjudicators: Allowed Mrs Huang’s and Mr Abu-Qulbain’s Article 8 appeals, but dismissed Mr Kashmiri’s appeal.