Entry Clearance Officer, Mumbai v NH (India)

The refusal of entry clearance may fail to respect family life where it prevents a dependent adult child from joining parents with whom a strong family life has long existed. The possibility that a parent could instead live abroad does not prevent article 8(1) from being engaged, although it may bear on proportionality.

Under article 8(2), proportionality is the sole crucial test. Exceptionality is a likely consequence of satisfying that test in entry cases, not a legal precondition. In assessing proportionality, a tribunal may exceptionally consider acknowledged historical injustice which prevented earlier family reunion. The ultimate question is whether exclusion is a more drastic interference with family life than is necessary to maintain lawful, fair and consistent immigration control.

The entry clearance officer refused Mr Halai permission to join his mother and father in the United Kingdom. He was slightly over 18, single, living alone, still in education and financially dependent upon his parents. Although he satisfied most of paragraph 317 of the Immigration Rules, he did not establish the most exceptional compassionate circumstances required by that paragraph.

An adjudicator nevertheless allowed his appeal under article 8 of the European Convention on Human Rights. The Asylum and Immigration Tribunal upheld that result in [2006] UKAIT 00085 and directed that entry clearance be granted. It relied on the family's strong pre-existing family life and the discriminatory historical restrictions which had prevented the mother from settling in the United Kingdom earlier.

The entry clearance officer appealed. The central issues were whether article 8(1) was engaged and whether the Tribunal's reliance on that history was legally relevant to proportionality under article 8(2).

1. Appeal dismissed. Sedley LJ held that article 8(1) was engaged. Preventing a dependent son from joining his mother may constitute a want of respect for family life even though the mother could instead join him abroad. The latter possibility may be relevant to proportionality, but it does not preclude engagement of article 8(1). The Tribunal was entitled to find a strong family life between the respondent and the parents with whom he had lived until their move to the United Kingdom.

2. The sole crucial test under article 8(2) was proportionality. Exceptionality was a likely consequence, rather than a condition, of a successful article 8 claim by a prospective entrant. A structured decision had to balance the individual's interests against society's interest in lawful, fair and consistent immigration control and ask whether the interference was more drastic than necessary.

3. The adjudicator's proportionality reasoning was legally inadequate because it gave no intelligible reason why excluding an adult dependent son would be disproportionate. The Tribunal should therefore have found an error of law. It had, however, independently reconsidered proportionality and supplied fuller and cogent reasoning.

4. Although the Tribunal had mistakenly expressed its analysis in terms of exceptionality, that error could not have affected the result. The combination of factors which it regarded as exceptional necessarily established that exclusion was disproportionate. Those factors included the respondent's age and dependency, the strong and longstanding family life, the parents' prompt attempt to reunite the family, satisfaction of most requirements of paragraph 317 of the Immigration Rules, and the absence of any legal significance attaching invariably to an age limit of 18.

5. The historical and moral context was legally relevant. Earlier racially discriminatory legislation, followed by a quota scheme discriminatory on grounds of sex and marital status, had prevented the mother from settling earlier. Later legislation acknowledged and sought to remedy that historical wrong. The Tribunal could conclude that, but for that injustice, she would have been able to bring her youngest son to the United Kingdom as of right years before.

6. Pill LJ agreed that the mother's possible return to India was not crucial and that the age limit in the Rules did not prevent an individual article 8 assessment. Rimer LJ agreed with both judgments. The dismissal was unanimous, and entry clearance was to be granted.

1. Court of Appeal (Civil Division): In [2007] EWCA Civ 1330, unanimously dismissed the entry clearance officer's appeal and held that entry clearance should be granted.
2. Asylum and Immigration Tribunal: In [2006] UKAIT 00085, upheld the adjudicator's article 8 decision, independently concluded that exclusion was disproportionate, allowed Mr Halai's appeal and directed that entry clearance be granted.
3. Adjudicator: Held that paragraph 317 of the Immigration Rules was not satisfied, but allowed the appeal because refusal of entry clearance was a disproportionate interference with family life under article 8 of the European Convention on Human Rights.