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

A refusal of discretionary leave does not itself interfere with Article 8 rights where the claimant is already unlawfully present and the refusal does not alter his legal position. Judicial review of the application of a discretionary-leave policy is concerned with whether the Secretary of State reached a reasonable view that removal would not breach Article 8. The court must not determine the merits prematurely, since those merits may be considered in a statutory appeal after a removal decision. Immigration history and breaches of immigration control are relevant factors in the Article 8 balance, although their weight depends on the circumstances. Applicants and their families must provide evidence explaining why removal would be unreasonable; the Secretary of State need not produce all such evidence.

The claimant, a Nigerian national unlawfully present in the United Kingdom, sought discretionary leave to remain outside the Immigration Rules on the basis of family life with his partner and three children, who appeared to be British nationals. The Secretary of State refused leave and issued a supplementary decision. The claimant sought judicial review, arguing that the refusal interfered with his Article 8 rights and that the Secretary of State had misapplied the discretionary-leave policy.

The central issues were whether the refusal itself engaged Article 8 and whether the Secretary of State had acted unlawfully by assessing the prospective removal decision, including the claimant’s immigration history and the consequences for his family.

1. The claim was dismissed. The refusal of discretionary leave did not interfere with the claimant’s human rights. He was already unlawfully present, and the refusal did not change his position or his relationship with his family. The consequences relied upon concerned possible removal, not the refusal itself.
2. The decision was not appealable under section 82 of the Nationality, Immigration and Asylum Act 2002. If a removal decision were later made, the claimant could appeal and pursue his human-rights arguments on their merits through the statutory appeal process.
3. The policy conferred no entitlement to discretionary leave merely because an Article 8 claim had been made. For judicial-review purposes, the question was whether the Secretary of State had reached a reasonable view that prospective removal would not breach Article 8. The court was not to substitute its own assessment of the merits before the statutory process arose.
4. The claimant’s prolonged breach of immigration control was a relevant consideration. Its weight depended on the nature and duration of the breach. The Secretary of State was entitled to consider possible separation, relocation to Nigeria, or relationships maintained over distance. The claimant was not entitled to impose his preferred choice of residence on the United Kingdom.
5. The evidential burden was not wholly on the Secretary of State. Those with knowledge of their personal circumstances had to explain why removal would be unreasonable, although the Secretary of State might be better placed to establish matters such as Nigerian immigration control.
6. Costs were ordered in favour of the Secretary of State, payable by the claimant. Permission to appeal was refused because the proposed appeal depended on the outcome of R(Mirza and others) v Secretary of State for the Home Department [2010] EWHC 2002 (Admin).