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

The Immigration Rules are not unlawful merely because they do not themselves provide for every case in which European Convention on Human Rights Article 8 requires leave to remain. The rules must be read with the Secretary of State’s residual discretion to grant leave outside them, which must be exercised where refusal would be disproportionate.

In precarious family-life cases, the absence of insurmountable obstacles to the family continuing life abroad will usually indicate that removal is proportionate. It is not, however, the sole legal test. Decision-makers must consider whether compelling features not reflected in the rules make removal unjustifiably harsh and disproportionate.

The claimant, an Indian national who had overstayed, sought leave to remain on the basis of his relationship with a British citizen. The relationship began after his leave had expired. There were no children.

He challenged the compatibility of Section EX.1 of Appendix FM and Rule 276ADE of the Immigration Rules with Article 8. He also challenged the refusal of leave in his own case. The central issue was whether the rules’ focus on insurmountable obstacles to family life continuing abroad was incompatible with the Article 8 proportionality assessment.

1. The claim was dismissed. Section EX.1 and Rule 276ADE were lawful. The Secretary of State’s revised refusal decision was also lawful.

2. The rules need not reproduce every possible Article 8 outcome within their own terms. Their lawfulness depends on the immigration regime as a whole. That regime preserves a residual discretion to grant leave outside the rules where refusal would breach Article 8. Accordingly, a claimant who fails under the rules may still have an Article 8 claim requiring separate consideration.

3. The proper sequence is ordinarily to consider the applicable rules first. If they fully address the relevant private or family-life issues and disclose no arguable basis for leave outside the rules, no duplicative Article 8 assessment is required. If they do not, the decision-maker must assess proportionality under Article 8 by reference to the circumstances of the individual case.

4. In a case where family life was formed when the applicant’s immigration position was precarious, Strasbourg jurisprudence indicates that removal will breach Article 8 only exceptionally. Whether there are insurmountable obstacles to the partner relocating is highly material, but it is not conclusive. If relocation is practically possible, other compelling and non-standard features are required to show that removal would nevertheless be unjustifiably harsh and disproportionate.

5. The court explained that EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41 and VW (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 5 did not establish a freestanding reasonable-expectation test replacing the Strasbourg proportionality assessment. They confirmed that insurmountable obstacles are not the sole test.

6. On the facts, there were no insurmountable obstacles to the couple living in India and no other compelling circumstances. The claimant therefore had no arguable Article 8 case outside the rules. The court nevertheless advised officials to avoid a tick-box approach and to demonstrate an overall proportionality assessment in their reasons.

not stated in the judgment.