Chen, R (On the Application Of) v Secretary of State for the Home Department

Article 8 does not generally require the state to provide accommodation or welfare assistance. Any positive obligation is exceptional and depends on whether, viewed in context, family life would be effectively ruptured. Where Article 14 applies, the court must assess difference of treatment, protected status, relevant similarity and justification in a flexible way. A statutory bright-line threshold may legitimately indicate the permanence of an unmarried relationship if it is rational, workable and proportionate. A two-years-in-three cohabitation requirement for asylum-support dependency was justified by the need to prevent abuse while recognising enduring relationships. An unlawful failure to consider Convention rights does not require remission where, on the correct legal approach, the claim must inevitably fail.

The claimant was a failed asylum seeker who continued to receive section 95 support because she had a dependent child in the United Kingdom. She sought recognition of Mr Wu, her former and current cohabiting partner, as her dependant so that he could receive support and reside with her in National Asylum Support Service accommodation.

The First-tier Tribunal dismissed her appeal but wrongly considered that Convention-rights issues were outside its remit. The judicial review concerned whether regulation 2(4)(f) of the Asylum Support Regulations 2000 was compatible with Articles 8 and 14 of the ECHR and, if not, whether section 3 of the Human Rights Act 1998 required a compatible interpretation. The further issue was whether the matter should be remitted.

1. Article 8. The refusal to treat Mr Wu as a dependant did not interfere with the claimant’s Article 8 family life. Article 8 does not itself guarantee accommodation or welfare assistance, save in exceptional circumstances. The relevant question is whether family life would be effectively ruptured. Here, Mr Wu could visit the claimant and child, take meals with them, care for the child and meet them elsewhere. Even if Article 8 was engaged, the interference was proportionate to immigration control and the prevention of abuse of the asylum-support system.
2. Article 14. The judge inclined to the view that the distinction based on the length of cohabitation was not based on “other status”, but did not decide the case on that ground. The married comparator was not in a relevantly similar situation. Assuming that the claimant was relevantly similar to an unmarried couple satisfying the two-years-in-three requirement, the difference in treatment was justified.
3. The two-years-in-three requirement in regulation 2(4)(f) was a rational and workable bright-line threshold. It was capable of acting as a surrogate for the permanence and endurance of the relationship. It balanced recognition of recent enduring relationships against the risk of applications based on relationships which no longer existed or were insufficiently established. The presence of a child did not make the rule arbitrary or require every aspect of a relationship to be accommodated in the regulations.
4. The First-tier Tribunal had erred in law by refusing to consider whether its decision was incompatible with Convention rights. Nevertheless, remission would serve no purpose. Even taking the claimant’s evidence at its highest, the statutory threshold was justified; a rehearing would therefore inevitably dismiss the application. The application for judicial review was dismissed.

The judgment states that the challenged decision was made by the Social Entitlement Chamber (Asylum Support) of the First-tier Tribunal on 1 March 2011. That Tribunal had dismissed the claimant’s appeal against refusal to treat Mr Wu as her dependant. The Administrative Court held that the Tribunal had erred in law by declining to consider Convention-rights compatibility, but dismissed the judicial review because remission could not affect the outcome.