Miao v Secretary of State for the Home Department

In an Article 8 case, the relevant policy context is not confined to the Immigration Rules. Although the Rules may be the principal source of policy, other published policy, including the Family Reunion Policy, must be considered where relied on. A tribunal may err in law if it treats the claim only as an attempt to obtain an exception to the Rules and fails to decide whether the claimant falls within the policy. The relevant policy criterion was whether there were compelling compassionate circumstances. Permission to appeal was granted because those errors were properly arguable. The court cautioned against treating an obiter observation about the relationship between Rule 317 and the Family Reunion Policy as determinative.

The claimant sought permission to appeal an immigration judge’s decision in an Article 8 case involving reliance on the Secretary of State’s Family Reunion Policy. The judge had treated Article 8 as a potential means of circumventing the Immigration Rules and had arguably failed to address whether the claimant satisfied the policy’s requirement of compelling compassionate circumstances. The claimant also faced the policy requirement that applications be made at entry clearance posts overseas. The central issue was whether the complaints disclosed a properly arguable error of law.

1. The application was allowed and permission to appeal was granted. The substantive appeal was directed to be heard by three judges, with the appeal costs reserved.

2. Lord Justice Keene considered it properly arguable that the immigration judge had treated the Article 8 claim as requiring an exception to the Immigration Rules. The judge had relied on Huang while overlooking that policy may be found in several sources. The Rules may be the principal source, but they are not the sole or exclusive source.

3. The claimant had relied on the Secretary of State’s Family Reunion Policy and argued that he came within it, rather than seeking an exception to policy. The relevant requirement was the existence of compelling compassionate circumstances. The immigration judge had arguably failed to apply that criterion or deal adequately with the policy in the reasoning.

4. The court recognised that the policy required applications to be made at entry clearance posts overseas. A successful overseas application might minimise separation from the claimant’s father, but that consideration did not remove the arguable error concerning the policy context.

5. Keene LJ treated the reported observation in Senanayake as apparently obiter and cautioned against firm predictions about future cases. Rule 317 appeared principally concerned with persons dependent on someone already resident in the United Kingdom, whereas the situation advanced in the present case was the converse. The court did not determine the substantive Article 8 or policy issue.

6. Lord Justice Rix agreed.

• Court of Appeal (Civil Division): on 23 November 2005, allowed the application for permission to appeal and directed that the substantive appeal be heard by a court of three judges.
• High Court Asylum and Immigration Tribunal: the immigration judge’s decision was said to contain a properly arguable error of law in its treatment of Article 8, the Immigration Rules and the Family Reunion Policy. No citation for that decision was stated in the judgment.