Mansoor, R (on the application of) v Secretary of state for the home department

In an Article 8 family-life case, the relevant question is whether it is reasonable to expect family members to relocate, not whether relocation presents insurmountable obstacles. Family life in a common household is not preserved merely by telephone, electronic communication or visits.

The best interests of affected children must be considered first as a primary consideration. They are not paramount or decisive, but can be outweighed only by sufficiently strong countervailing considerations. Immigration Rules are not themselves a legitimate aim under Article 8(2). Failure to meet the Rules is the starting point for the human-rights assessment, not its conclusion. Citizenship, family relationships, education and development may materially affect proportionality.

The claimant, a Yemeni national, sought indefinite leave to remain so that she could continue living in the United Kingdom with her British-citizen husband and seven children. Her application had failed because her husband’s redundancy resulted in reliance on public funds during the claimant’s two-year probationary period.

Successive decisions relied on the possibility of family relocation to Yemen, continued contact from abroad and the claimant’s failure to meet the Immigration Rules. They gave inadequate attention to the family life of the older children, the British citizenship of the younger children, their education and the best interests of the children.

During the judicial review hearing the Secretary of State agreed to grant indefinite leave to remain. The central issue was whether the earlier decisions had applied the developing Article 8 principles correctly.

1. Disposition. The Secretary of State’s decision to grant indefinite leave to remain meant that no further substantive relief was required. The application was allowed, with costs. Had the decisions remained live, they would have been quashed.
2. Family life and relocation. The correct Article 8 inquiry is whether it is reasonable to expect the relevant family members to relocate. The absence of an insurmountable obstacle to return is not the test. Where family life is enjoyed in an inter-dependent household, the availability of telephone calls, electronic communication or visits does not prevent removal from interfering with that family life. Family life between adult children and other family members does not automatically end when a child reaches 18.
3. Children’s best interests. Following ZH (Tanzania) v SSHD [2011] UKFC 4, the best interests of a child are a primary consideration in immigration decision-making. They must be identified, considered first and given appropriate weight. They are neither the sole nor the paramount consideration, and may be outweighed by the cumulative effect of other considerations. The assessment must adopt a rights-based approach to factors relied upon to outweigh them.
4. Nationality and citizenship. The nationality of the spouse and dependent children is important when assessing relocation and proportionality. British citizenship is not a trump card, but is an independent and important factor because of the rights and benefits attached to it. Education, development and the children’s established lives in the United Kingdom also required specific consideration.
5. Immigration Rules and legitimate aims. The Immigration Rules are not a legitimate aim under Article 8(2). Maintaining the integrity of immigration control may serve the economic well-being of the country, but the decision-maker must assess the significance of that aim and the necessity of removal in the individual case. Non-compliance with the Rules is the starting point, not the end point, of the human-rights analysis. Marginal economic consequences caused by a sponsor’s involuntary unemployment were unlikely, in the circumstances, to justify interference with an otherwise well-founded family life.

First-instance judicial review in the Administrative Court. The Secretary of State granted the claimant indefinite leave to remain during the hearing. The court allowed the application and awarded costs, stating that it would otherwise have quashed the live decisions.