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

In an Article 8 case affecting family life, the relevant question is proportionality, not whether the circumstances are exceptional. Where indefinite leave to remain was withdrawn after the use of a false name, the proportionality assessment may need to consider the absence of any ulterior motive and whether the deception affected the underlying immigration decisions. Those matters may make the reasons for removal less weighty and the countervailing family-life considerations more powerful. If the claim is arguable on that basis, permission for judicial review should be granted.

The appellant, an Ecuadorian national, had entered the United Kingdom using her sister-in-law’s name and later obtained indefinite leave to remain under a one-off family policy. Her leave was revoked after the deception was discovered, and removal with her children was proposed.

Silber J and, on renewal, Crane J refused permission for judicial review. Richards LJ refused permission to appeal on paper, holding that the Secretary of State could revoke leave obtained by deception and that removal was clearly proportionate. The Court of Appeal considered whether the Article 8 challenge was nevertheless arguable, particularly in light of the absence of any apparent ulterior motive and the circumstances of the false name’s use.

1. Application granted. Permission to apply for judicial review was granted, with the substantive application directed to remain in the Court of Appeal, subject to any further submission by the appellant.
2. The applicant’s Article 8 claim had to be assessed by proportionality rather than exceptionality. The exceptionality approach applied below was mistaken in light of Huang.
3. The use of a false name appeared to have had no ulterior motive. It had not been suggested that disclosure of the applicant’s true name would have caused the Home Office to act differently on either the asylum claim or the application for indefinite leave to remain.
4. The central issue was the effect, if any, of using the false name to re-enter the United Kingdom after the 2004 visit to Ecuador. In those circumstances, the reasons for removal might be markedly less weighty than in the usual false-name entry case, while the reasons against removal might correspondingly be more powerful.
5. The case was therefore arguable. The court did not finally determine the proportionality merits or the lawfulness of revoking indefinite leave to remain.

• Court of Appeal (Civil Division): granted permission to apply for judicial review and directed that the substantive application remain in that court.
• High Court of Justice, Queen’s Bench Division: Silber J refused permission on the papers; Crane J refused permission on oral renewal.
• Court of Appeal (Civil Division): Richards LJ refused permission to appeal on the papers.