CH (Jamaica) v Secretary of State for the Home Department

Delay in determining an immigration application does not itself create a substantive right to remain or convert a weak Article 8 case into an exceptional one. It may be relevant where the applicant has a potential entitlement under immigration policy, or where delay makes enforcement of a procedural requirement inequitable. Article 8 nevertheless requires sufficiently strong family or private life and consequences of sufficient gravity. If engaged, the decision-maker must conduct a genuine proportionality assessment and strike a fair balance; exceptional circumstances are not a legal test. Where ties are weak and the causal effect of delay is speculative, refusal under lawful immigration control remains justified.

The appellant, a Jamaican citizen, married a settled man while lawfully visiting the United Kingdom. Her first application under Rule 284 was invalid, and her second application was made after she became an overstayer. The Secretary of State delayed deciding the application until after her husband’s death, refused removal under the DP 3/96 marriage policy, and rejected her Article 8 claim.

An immigration judge allowed the appeal on human rights grounds. On reconsideration, the Asylum and Immigration Tribunal substituted its decision and dismissed the appeal. The Court of Appeal considered whether the Tribunal had confused Rule 284 with DP 3/96 and whether the delay made removal a breach of Article 8.

The Court of Appeal unanimously dismissed the appeal. No remittal was appropriate.

1. Rule 284 and DP 3/96. Rix LJ held that the Immigration Rules and DP 3/96 were distinct. The second Rule 284 application was made by an overstayer and could not succeed under the rule. DP 3/96 was a discretionary policy for a subsisting marriage, so it could not apply at the date of the Secretary of State’s decision after the settled spouse had died. Even assuming a period in which the policy might have been considered, the appellant had not shown a causative lost entitlement. The likely outcome remained adverse or speculative.
2. Article 8. The appellant had no family life in the United Kingdom and her private-life case was weak. Her status was precarious, and there was no evidence of relevant family ties, employment or medical need. Applying Razgar and Huang, the decision-maker had to identify an interference, assess whether its consequences were sufficiently grave, and then conduct a proportionality assessment. The use of exceptional circumstances as a legal test was erroneous.
3. Delay. Delay could be relevant to the Article 8(2) balancing exercise, but it could not create a free-standing right to remain or compensate for insufficient private-life ties. The immigration judge had failed to identify the materiality and gravity of any interference, conduct a proper proportionality assessment, or establish that delay caused relevant prejudice. His conclusion that delay was decisive was irrational and unsupported by adequate reasons.
4. Final result. On the facts, only one answer was possible: lawful immigration control justified any interference with private life. Moses LJ emphasised that delay creates no substantive right, and Auld LJ agreed with Rix LJ’s reasons.

• Court of Appeal (Civil Division): In [2007] EWCA Civ 792, the appeal from the Tribunal’s reconsideration decision was dismissed.
• Asylum and Immigration Tribunal: On reconsideration, the Tribunal substituted its decision for that of the immigration judge and dismissed the appellant’s appeal.
• Immigration judge: The appeal was dismissed under the Immigration Rules but allowed on human rights grounds.