Kotecha & Anor, R (on the application of) v Secretary of State for the Home Department

Article 8 requires a fact-sensitive proportionality assessment. The question whether family members can reasonably relocate, and the existence of insurmountable obstacles, are factors within that assessment, not free-standing legal tests.

Where a person must leave the United Kingdom temporarily to apply for entry clearance as a spouse, the duration and practical consequences of the disruption, the strength of family ties, immigration history, the circumstances in which family life was formed, and the public interest in immigration control must all be weighed. Such a requirement may be proportionate in an unusual case, but will not automatically be lawful merely because entry clearance is likely to be granted.

Two linked judicial review claims concerned overstayers whose applications for leave to remain as spouses had been refused under paragraph 284 of the Immigration Rules. Neither claimant had a right of appeal because neither had extant leave.

Both argued that requiring departure to obtain entry clearance from abroad would breach article 8. The Secretary of State accepted that the applications would probably succeed if made abroad. The central issue was whether domestic authority had imposed a test materially stricter than the Strasbourg approach, and whether temporary relocation or separation was proportionate in the individual cases.

1. Applicable approach. The House of Lords authorities, including Razgar [2004] 2 AC 368, Huang [2007] UKHL 11 and EB (Kosovo) [2008] UKHL 41, had not departed from the Strasbourg approach. Article 8 required a careful evaluation of the facts and a fair balance between individual and community interests.
2. No free-standing relocation test. “Insurmountable obstacles” and whether it was reasonable to expect family members to relocate were factors, not independent tests which ended the inquiry. The relevant factors included the extent of rupture, ties in the United Kingdom, obstacles to family life elsewhere, immigration history, public order, and whether family life was created when precarious immigration status was known.
3. Temporary entry-clearance applications. Chikwamba [2008] UKHL 40 did not establish that departure could never be required. The likely duration and degree of disruption were highly relevant. Formal compliance with the Immigration Rules could carry reduced weight where entry clearance was likely to be granted, but the result remained fact-sensitive.
4. Kotecha. The likely absence from the United Kingdom was short, there was no prospect of permanent or prolonged separation, the marriage had been formed while the claimant’s immigration status was precarious, and the interference was marginal. The requirement to apply from Tanzania was proportionate.
5. Das. Requiring Mrs Das to leave for between one and three months would create serious practical difficulties for her young children and husband. The family had strong ties to the United Kingdom, there was no significant immigration-history factor beyond her overstaying, and the marriage would entitle her to return. Although there were no insurmountable obstacles to temporary relocation, the requirement was disproportionate under article 8.
6. Mrs Das’s judicial review claim succeeded. Mr Kotecha’s claim failed. Relief for Mrs Das was to be addressed separately. The proposed leapfrog appeal did not arise.