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

Where an application was made before revised Immigration Rules took effect, the application must be considered under the rules then in force. Reference to the later rules makes the decision unlawful only if it materially affects the outcome. The decision-maker must address the Article 8 case directly and assess the cumulative effect of the relevant private and family life factors. The court must determine proportionality for itself, while giving due regard to workable, predictable, consistent and fair immigration control. Family life between an independent adult and relatives will arise only in exceptional circumstances, and a relationship formed when the applicant had no lawful right to remain will ordinarily require exceptional circumstances before removal is incompatible with Article 8.

The claimant, a Bangladeshi national, sought judicial review of refusal of leave to remain based on Article 8 family and private life. His application had been lodged before 9 July 2012, but the initial decision applied Appendix FM and paragraph 276ADE of the revised Immigration Rules. Following permission and a stay by consent, the Secretary of State issued further decisions addressing Article 8 outside the rules, relocation to Bangladesh, and the claimant’s family circumstances. The issues were whether the transitional error materially affected the outcome, whether the Article 8 assessment was lawful and proportionate, and whether a removal decision should have been issued to create a right of appeal.

1. Claim dismissed. The initial decision letter was plainly inadequate because it determined a pre-9 July 2012 application by reference to the revised rules. Applying [2014] EWCA Civ 402, the relevant question was whether that error materially affected the outcome.
2. The later June and September 2014 decisions could properly be taken into account after the agreed stay. They considered all matters raised in the application, both individually and cumulatively. The court was satisfied that the decision would have been the same under the old rules and that the Article 8 assessment was not distorted by the revised rules.
3. The required exercise was to weigh general public-policy considerations against the Article 8 factors arising in the particular case. The relocation issue had been considered under both the insurmountable-obstacles formulation and the broader question whether it was reasonable to require the claimant and his wife to relocate.
4. On a challenge of this kind, the court must decide for itself whether removal would be a disproportionate interference with Article 8. It must nevertheless give due regard to immigration-control policies that are workable, predictable, consistent and fair. The claimant was an independent adult, and his close emotional relationships with his mother, half-sister and step-father did not involve significant mutual dependence. His marriage had been formed when he had no lawful right to remain. Removal would therefore be incompatible with Article 8 only in exceptional circumstances, which were absent.
5. The challenge based on failure to issue a removal direction was not properly before the court and was in any event unarguable. Under [2011] EWCA Civ 161, the Secretary of State was not obliged to issue an appealable decision simultaneously with refusal of leave to remain.