A (Afghanistan) v Secretary of State for the Home Department

A lawful, genuine and subsisting marriage constitutes family life for Article 8 purposes even where the spouses have not yet cohabited. The absence of cohabitation is not determinative, and the engagement threshold is not especially high. Refusal of entry clearance preventing spouses from living together may therefore engage Article 8. The decision-maker must then consider the remaining Razgar questions, including justification and proportionality. The appeal was allowed because the respondent had failed to raise the proposed public-interest case in accordance with appellate procedure and was, in the circumstances, foreclosed from reopening it. The court did not determine the ultimate proportionality question; future cases must be decided on their own merits.

The appellant, an Afghan national living in Pakistan, sought entry clearance to join her Afghan husband, a recognised refugee with limited leave to remain in the United Kingdom. They had married after he left Afghanistan to seek asylum, so paragraph 352A of the Immigration Rules HC 395 did not provide a family-reunion route, while rule 281 was unavailable until settlement. The Entry Clearance Officer refused clearance. An immigration judge and, on second-stage reconsideration, the Immigration Appeal Tribunal dismissed the appeal, holding that Article 8 was not engaged. The Court of Appeal considered whether a genuine marriage without cohabitation constituted family life and whether the matter should be remitted for consideration of Article 8(2).

The Court of Appeal allowed the appeal. Lord Justice Hooper gave the principal judgment; Lord Justice Wilson agreed, and Lord Justice Pill agreed with the result while adding a separate qualification.

1. Engagement of Article 8. The five questions identified by Lord Bingham in Razgar apply equally to refusal-of-entry-clearance cases. A lawful, genuine and subsisting marriage gives rise to family life even if the spouses have not yet cohabited. The reference in Abdulaziz and others v UK to married family life normally comprising cohabitation did not qualify that conclusion. Singh supported the proposition that cohabitation is not determinative. Kugathas was materially distinguishable on its very different facts.
2. Gravity threshold. The threshold for engagement is not especially high, as explained in AG (Eritrea). Preventing a husband and his heavily pregnant wife, whose marriage was genuine and subsisting, from cohabiting had consequences sufficiently grave potentially to engage Article 8. The AIT was therefore required to consider lawfulness, necessity and proportionality.
3. Public interest and procedure. The AIT had been unable to identify a public interest in delaying reunion for this category of refugee, while the respondent sought to introduce a substantial contrary argument only on appeal. Under Rule 52.5 and paragraph 7.3(2) of the Part 52 Practice Direction, a respondent seeking to rely on different or additional reasons was required to file a respondent’s notice. None was filed, and the skeleton argument was served late after extensive delay.
4. In the circumstances, the respondent was foreclosed in this case from reopening the public-interest issue. The court allowed the appeal against the Entry Clearance Officer’s refusal rather than remitting it. The decision was not authority on the ultimate proportionality question. As Pill LJ stressed, each future case must be considered on its merits and no spouse in this category could expect an automatic favourable Article 8 outcome.

1. Court of Appeal (Civil Division): In [2009] EWCA Civ 825, allowed the appeal against the Entry Clearance Officer’s refusal and did not remit the matter.
2. Immigration Appeal Tribunal (OA/47965/2007): On second-stage reconsideration, dismissed the appeal and held that Article 8 was not engaged, although it considered proportionality and the public interest.
3. Immigration Judge: Refused the appellant’s appeal against the entry-clearance refusal; reconsideration was subsequently ordered.
4. Entry Clearance Officer: Refused entry clearance on 13 August 2007.