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

Immigration Rules are not unlawful merely because they do not provide an answer to every Article 8 case. They must be read with the Secretary of State’s residual discretion to grant leave outside the Rules and with the duty under the Human Rights Act 1998 not to act incompatibly with Convention rights.

Even apparently exhaustive or exclusionary Rules do not remove the duty to consider whether refusal would cause unjustifiably harsh or disproportionate consequences. The Rules and the residual discretion together must provide full coverage of Article 8 rights. A challenge based on the 40-day parliamentary scrutiny procedure fails where no negative resolution is passed within that period.

The claim challenged the vires of private and family life provisions introduced by HC 194, including paragraph 276ADE and Appendix FM of the Immigration Rules. The claimants argued that the Rules unlawfully required refusal in cases where refusal might breach article 8 of the European Convention on Human Rights.

The court also considered a related challenge alleging that the parliamentary procedure under section 3(2) of the Immigration Act 1971 had not allowed the required period for scrutiny. The substantive claimants’ remaining Article 8 merits issues were to be dealt with separately by the Upper Tribunal.

1. The vires challenge failed. The Immigration Rules must be read together with the Secretary of State’s residual discretion to grant leave outside the Rules. That overall regime accommodates Article 8 even though the Rules themselves cannot address every possible factual situation.
2. The Rules are not to be treated as exhaustive or exclusionary merely because they contain detailed requirements or state that leave will be refused if those requirements are not met. Where the Rules do not resolve an Article 8 claim, the Secretary of State must consider the claim outside the Rules. A court on appeal or judicial review must likewise consider whether refusal would be so disproportionate or harsh as to constitute an unjustifiable interference with Article 8.
3. The approach in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 required a two-stage process. A claimant must first be considered under the relevant Rules and, if unsuccessful, the remaining Article 8 circumstances must be assessed. The expression exceptional circumstances describes cases involving unjustifiably harsh consequences amounting to disproportionate interference; it does not impose a freestanding exceptionality threshold.
4. The Rules, viewed with the residual discretion and the Convention duty, were capable of being construed so as to sustain their vires. It made no practical difference whether the residual discretion was treated as operating outside the Rules or as an implied qualification to them.
5. The procedural challenge also failed. Section 3(2) of the Immigration Act 1971 required consideration of whether either House passed a negative resolution within 40 days of laying. No such resolution was passed. An earlier positive resolution and the later House of Lords approval did not alter that conclusion. Permission to proceed on that point was refused. The Secretary of State received costs of £4,530.

This was a first-instance decision. The proceedings had been transferred from the Upper Tribunal to the Administrative Court for determination of the vires issue, with the remaining merits issues to return to the Upper Tribunal.