Huang v Secretary of State for the Home Department

The appellate immigration authority, on an appeal brought under section 65 of the Immigration and Asylum Act 1999 and Part III of Schedule 4 to that Act, must decide for itself whether a decision refusing leave to enter or remain is unlawful as incompatible with Convention rights (in particular the family-life limb of article 8 in Schedule 1 to the Human Rights Act 1998). The authority's task is not confined to a Wednesbury-style review of the primary decision-maker's exercise of discretion; it must establish the relevant facts, take account of immigration rules as relevant but not determinative, apply Strasbourg jurisprudence pursuant to section 2 of the 1998 Act, and carry out a proportionality assessment balancing the individuals article 8 interests against public interest considerations. Earlier authorities purporting to restrict the role of adjudicators and the Tribunal by excessive deference (notably Edore and M (Croatia)) were displaced to the extent that they required a deferential review rather than an independent assessment under section 65. The cases of Huang and Kashmiri were remitted to the unified appellate tribunal for rehearing because the Immigration Appeal Tribunal had misdirected itself on standard of review and proportionality.

Background and parties:

• Mrs Huang is a Chinese national with close family (husband, daughter, son-in-law and grandchildren) settled in the United Kingdom. She did not qualify under the Immigration Rules (rule 317) for leave to remain. The Secretary of State appealed against an adjudicator's allowance of her human-rights appeal.
• Mr Kashmiri is an Iranian national whose immediate family were granted indefinite leave as refugees; his asylum claim was refused. He appealed against the Secretary of State's refusal to grant leave.

Procedural posture:

• These conjoined appeals came from decisions of the Immigration Appeal Tribunal, considered by the Court of Appeal ([2005] EWCA Civ 105; reported [2006] QB 1), which found legal defect in the Tribunal's approach. The House of Lords was asked to determine the proper function and standard of review applicable to appellate immigration authorities hearing section 65 appeals based on article 8 (family life).

Nature of the claim and relief sought:

• Both applicants did not qualify under the Immigration Rules and relied on the family-life limb of article 8 to challenge refusal of leave to enter or remain. Relief sought was allowance of appeals on Convention grounds under section 65 and Part III of Schedule 4.

Issues before the House:

1. What is the decision-making role of adjudicators, the Immigration Appeal Tribunal and immigration judges when deciding appeals under section 65? Are they confined to reviewing the primary decision for rationality/deference or must they independently decide whether the impugned decision is unlawful under Convention rights?
2. How should proportionality be applied in article 8 cases involving immigration control and what weight is to be accorded to immigration rules and the Secretary of State's policy judgments?

Court's reasoning and conclusions:

• The House held that section 65 and paragraph 21 of Part III of Schedule 4 confer jurisdiction on the appellate authority to consider, on the merits and on up-to-date facts, whether a decision is compatible with Convention rights. The authority must establish and, if necessary, update the relevant factual findings and may review determinations of fact relied on by the primary decision-maker.
• The authority must take into account Strasbourg case-law as required by section 2 of the Human Rights Act 1998 and carry out a proportionality assessment which involves striking a fair balance between the individual's family-life interests and the interests of the community. Immigration Rules and administrative desirability are relevant but not determinative; they do not immunise a refusal from independent assessment under article 8.
• The House rejected approaches that treated the Tribunal's role as confined to assessing whether the Secretary of State's decision was within a range of reasonable responses (deferential review as in Edore and M (Croatia)). The authority must decide whether the interference with family life is sufficiently serious to constitute a breach of article 8 after weighing all relevant considerations.

Disposal:

• The House dismissed the Secretary of State's appeal in Mrs Huang's case and allowed Mr Kashmiri's appeal to the extent of remitting both cases to be reheard before the unified Asylum and Immigration Tribunal (now the Asylum and Immigration Tribunal). Costs directions were given as recorded in the judgment.

The House held that the appellate immigration authority must itself determine whether a refusal of leave to enter or remain is unlawful under Convention rights when hearing an appeal under section 65 and Part III of Schedule 4, and is not confined to a Wednesbury-style or deferential review of the primary decision. The Secretary of State's appeal in Huang was dismissed and Kashmiri's appeal was allowed to the extent of remitting both cases to the unified appellate tribunal, because the Immigration Appeal Tribunal had misdirected itself by applying an incorrect standard of deference rather than independently applying proportionality under article 8.

Appeals to the House of Lords from the Immigration Appeal Tribunal decisions, considered by the Court of Appeal ([2005] EWCA Civ 105; reported [2006] QB 1). Mrs Huang had succeeded before an adjudicator but the IAT reversed that decision; Mr Kashmiri had been unsuccessful before both the adjudicator and the IAT. The Court of Appeal held the Tribunals approach legally defective and the House of Lords dismissed the Secretary of State's appeal in Huang and allowed Kashmiri's appeal to the extent of remitting both matters to the unified Asylum and Immigration Tribunal for rehearing.