Sanyaolu v Secretary of State for the Home Department

Article 8 requires an individual proportionality assessment. The decision-maker must balance the seriousness and consequences of interference with family life against the public interest in removal. In cases involving a partner and children, the practical question will often be whether it is reasonable for them to leave the United Kingdom with the claimant.

A decision is unlawful if the decision-maker relies heavily on a material misunderstanding or ignores a relevant consideration. Nevertheless, the court may refuse relief where it is satisfied that, despite the error, the decision would inevitably have been the same.

The claimant, a Nigerian national, had previously held residence rights as the spouse of an EEA national. His leave was revoked after the marriage ended, but notice was sent to solicitors who had ceased to act and was apparently never received by him.

He later applied for further leave to remain with his Nigerian partner and their children. The Secretary of State rejected the application, relying partly on an allegedly poor immigration history and blatant disregard of the regulations. Permission for judicial review was limited to whether the Article 8 issue had been adequately considered.

1. The claim for judicial review was refused. The Secretary of State’s decision was materially flawed because it treated the claimant as knowingly disregarding immigration requirements and as having deliberately failed to exercise an appeal right, although he probably had not received notice of the revocation.

2. Article 8 requires a fact-sensitive proportionality assessment. The decision-maker must weigh the extent and consequences of interference with private and family life against the public interest in removal. Applying the effect of Chikwamba [2008] UKHL 40, Beoku-Betts [2008] UKHL 39 and EB (Kosovo) [2008] UKHL 41, the reasonableness of the partner and children leaving the United Kingdom with the claimant may be the critical question.

3. A decision-maker must not take account of an improper consideration or disregard a relevant one. The error here was legally significant in principle, but relief was unnecessary because the court was satisfied that the outcome would undoubtedly have been the same. Both adults were Nigerian nationals without a present right to remain, the children were very young and adaptable, and the public interest in maintaining a consistent immigration system was powerful.

4. The pending appeal against revocation did not require an adjournment. It concerned the revocation only, and could not create a right to remain beyond the expiry of the existing leave. The claim was therefore refused. No order as to costs was made, partly because the defendant had not provided a costs schedule and the decision had been potentially flawed.

• High Court (Administrative Court): Permission was limited by HHJ Pelling QC on 24 March 2010 to the Article 8 issue. The claim for judicial review was refused.
• Earlier procedural stage: Foskett J treated the claim as challenging the Secretary of State’s letter of 23 November 2009.