Huang (FC) (Respondent) v. Secretary of State for the Home Department (Appellant) and Kashmiri (FC) (Appellant) v. Secretary of State for the Home Department (Respondent) (Conjoined Appeals)

On a statutory human-rights appeal against refusal of leave to enter or remain, the appellate immigration authority must decide for itself whether the refusal is compatible with article 8. Its task is not confined to reviewing the primary decision for irrationality, procedural error or misdirection.

Failure to satisfy the Immigration Rules begins, but does not conclude, the article 8 inquiry. The Rules and the primary decision-maker’s informed judgment remain relevant but are not determinative.

Proportionality requires a fair balance between the individual’s rights and the community’s interests. The authority must consider whether family life can reasonably be enjoyed elsewhere and whether the resulting prejudice is sufficiently serious to breach article 8. Exceptionality is not an additional legal test.

The conjoined appeals concerned Huang v Secretary of State for the Home Department and Kashmiri v Secretary of State for the Home Department. Both applicants sought leave to remain on the basis of family life protected by article 8, although neither qualified under the Immigration Rules.

Mrs Huang succeeded before an adjudicator, but the Immigration Appeal Tribunal reversed that decision. Mr Kashmiri failed before both the adjudicator and the Tribunal. The Court of Appeal, in [2005] EWCA Civ 105, also reported at [2006] QB 1, held that both Tribunal decisions had applied an erroneous reviewing approach. It remitted Mrs Huang’s case but dismissed Mr Kashmiri’s appeal.

The common issue before the House was the proper decision-making role of the appellate immigration authority under section 65 of the Immigration and Asylum Act 1999 and Part III of Schedule 4 when determining a Convention-based immigration appeal.

In the single opinion of the Appellate Committee, comprising Lord Bingham of Cornhill, Lord Hoffmann, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood, the Secretary of State’s appeal in Mrs Huang’s case was dismissed and Mr Kashmiri’s appeal was allowed. Both cases were remitted to the Asylum and Immigration Tribunal.

1. The Committee held that section 65 of the Immigration and Asylum Act 1999, read purposively with Part III of Schedule 4, required the appellate immigration authority to decide for itself whether the refusal of leave was incompatible with a Convention right and therefore unlawful. This was not a secondary reviewing function dependent on irrationality, procedural impropriety or a misdirection by the primary decision-maker.

2. The more limited approaches in Edore v Secretary of State for the Home Department [2003] EWCA Civ 716 and M (Croatia) v Secretary of State for the Home Department [2004] UKIAT 24 were displaced. Their reasonable-response and exceptional-case formulations did not describe the authority’s statutory task.

3. Failure to qualify under the Immigration Rules was the beginning, rather than the end, of the article 8 inquiry. The Rules were relevant but not determinative. The analogy with the presumption recognised in Kay v Lambeth London Borough Council [2006] UKHL 10 was rejected because immigration rules and instructions did not embody the same considered democratic compromise as domestic housing legislation.

4. The Committee held that the authority must establish the current facts carefully and weigh every consideration on both sides. Administrative consistency, effective immigration control, deterrence of crime, fraud and deliberate illegality could carry substantial weight. Giving appropriate weight to an informed judgment made by an official with relevant responsibility and specialist knowledge was part of the ordinary judicial task, rather than a separate doctrine of deference.

5. The authority was required by section 2 of the Human Rights Act 1998 to take account of Strasbourg jurisprudence. In the absence of special circumstances, clear and constant Strasbourg jurisprudence should be followed. Article 8 imposed both negative and positive duties concerning respect for family life, while preserving the state’s general power to control the entry and residence of non-nationals.

6. The Committee held that proportionality required the three inquiries identified in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, supplemented by the overriding need to strike a fair balance between individual rights and community interests. Where family life could not reasonably be enjoyed elsewhere, the ultimate question was whether refusal caused prejudice sufficiently serious to breach article 8. No additional test of exceptionality applied. Lord Bingham’s observation in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 predicted that successful claims outside the Rules would be rare; it did not establish a legal test.

The Court of Appeal’s order concerning Mrs Huang was upheld. Mr Kashmiri was also entitled to a determination by a properly directed tribunal. The Secretary of State was ordered to pay the applicants’ specified costs.

1. House of Lords: In Huang v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home Department [2007] UKHL 11, the House dismissed the Secretary of State’s appeal in Huang, allowed Kashmiri’s appeal and remitted both cases to the Asylum and Immigration Tribunal.
2. Court of Appeal: In [2005] EWCA Civ 105, also reported at [2006] QB 1, the court held that both Tribunal decisions were legally defective because they had applied an unduly deferential reviewing approach. It allowed Huang’s appeal and remitted her case, but dismissed Kashmiri’s appeal.
3. Immigration Appeal Tribunal: The Tribunal allowed the Secretary of State’s appeal against the adjudicator’s decision in Huang and dismissed Kashmiri’s appeal. Both determinations applied the approach in M (Croatia) v Secretary of State for the Home Department [2004] UKIAT 24.
4. Adjudicators: Mrs Huang’s appeal was allowed. Mr Kashmiri’s appeal was dismissed.