A, R (on the application of) v Secretary of State for the Home Department

Administrative delay may strengthen an immigrant’s private or family life, but the court does not grant relief to punish departmental inefficiency. Article 8 requires a fair balance between the seriousness of the interference with family life and the public interest in consistent, fair and effective immigration control.

Where an overstayer must leave the United Kingdom to make a marriage application from abroad, the decisive question is whether that requirement prejudices family life sufficiently seriously to breach Article 8. Delay alone does not ordinarily diminish the weight of lawful immigration policy. Even if extreme delay can make enforcement of a procedural requirement inequitable, a delay substantially below the level of systemic breakdown will not suffice.

The respondent, a Jamaican national who had overstayed and made a fraudulent asylum claim, applied for leave to remain as the spouse of a British citizen. The Secretary of State refused the application after 23 months and required her and three older children to return to Jamaica, where she could apply for entry clearance.

Collins J allowed her judicial review claim in [2006] EWHC 1489 (Admin). He regarded the unexplained delay as inordinate and held that removal would be a disproportionate interference with family life under article 8 of the European Convention on Human Rights.

The Secretary of State appealed. The Court of Appeal admitted correspondence which had not been before Collins J and considered whether the delay and the resulting development of family life made enforcement of the requirement to apply from abroad disproportionate.

1. Appeal allowed unanimously. The fresh correspondence placed the delay in a significantly different light. It explained a substantial part of the period and required the Court of Appeal to reconsider the proportionality assessment with the benefit of the later decisions in HB (Ethiopia) and Huang.

2. The proper task was to assess the nature and strength of the respondent’s article 8 rights, including any rights strengthened during the delay. It was not the court’s function to discipline or punish the Secretary of State for administrative failings. The competing public interest was the consistent and fair operation of immigration policy, including the requirement that persons without lawful status make marriage applications from outside the United Kingdom.

3. The respondent’s article 8 case had been weak when she applied. She was an overstayer, had made a fraudulent asylum claim and knew that her status was precarious. Her marriage was then recent, although genuine. The subsequent birth of twins and the continuing settlement and education of the children strengthened the family life established in the United Kingdom, but did not make the case one of the very small minority in which the public interest was outweighed.

4. Delay can strengthen article 8 rights because family life may become more entrenched. Delay does not, merely by its occurrence, require the court to reduce the weight given to a consistent and fair immigration policy. If HB (Ethiopia) required consideration of whether the delay was so extreme that enforcing procedural rules would be inequitable, the delay here fell significantly short of that standard.

5. Requiring the respondent and the children to return to Jamaica so that she could apply from abroad would not, as at the date of decision, have prejudiced their family life sufficiently seriously to breach article 8. Collins J’s order quashing the refusal and removal decisions was therefore set aside.

1. Court of Appeal (Civil Division): In [2007] EWCA Civ 655, unanimously allowed the Secretary of State’s appeal and set aside the decision below.
2. Administrative Court: Collins J, in [2006] EWHC 1489 (Admin), allowed the judicial review claim, quashed the refusal and removal directions, and required the Secretary of State to reconsider the matter consistently with his judgment.