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

Article 8 does not generally require immigration leave to be granted, even for a limited period, so that a person without an existing right to remain may undergo fertility treatment. The court must assess the interference with family life in the context of the legitimate and substantial public interest in maintaining immigration control. The burden on an applicant seeking leave on Article 8 grounds is high. That burden is not discharged where the proposed treatment is uncertain in timing and outcome, and the prospects of success remain unclear.

The claimant sought judicial review of the Secretary of State’s continuing refusal to grant him leave to remain. He relied on Article 8, contending that temporary leave was required so that he and his wife could pursue fertility treatment in the United Kingdom.

The claimant’s wife had leave to remain, but the couple were childless and wished to proceed with treatment involving a possible myomectomy and donated oocytes. No donor had been found, the likely duration of any treatment was uncertain, and the evidence did not establish the prospects of success. The central issue was whether refusal of leave infringed the claimant’s or his wife’s Article 8 rights.

1. The application for judicial review was dismissed. The Secretary of State’s refusal to grant leave to remain was not unlawful.
2. Article 8 is qualified by Article 8.2. The maintenance of immigration control is a legitimate basis for measures that interfere with respect for family life. The burden on a person seeking leave to remain on Article 8 grounds is very high.
3. The fact that leave was sought only for a limited period to enable fertility treatment did not alter the analysis. No sensible period could be identified because no egg donor had yet been found, and the prospects and outcome of treatment remained uncertain.
4. The distress caused by childlessness and the couple’s wish to pursue treatment were matters attracting sympathy, but they did not establish a duty to grant leave. The claim had to be assessed alongside cases in which persons with serious or life-threatening illnesses had not been entitled to remain despite differences in available medical treatment.
5. In the circumstances, the court had no basis to interfere with the Secretary of State’s decision.