PG (USA) v The Secretary of State for the Home Department

Where the Immigration Rules do not provide a complete code for an Article 8 claim, the tribunal must determine the claim independently under the established domestic and Strasbourg principles. The applicant must first establish an interference with private or family life of sufficient gravity to engage Article 8. Proportionality arises only after that threshold is crossed.

The Rules remain relevant to proportionality because they illuminate the Government's immigration policy and the legitimate objective pursued. That policy must receive appropriate weight but is not necessarily determinative. The tribunal decides the merits for itself and must not accord the Secretary of State a margin of respect.

A financially independent elderly United States national sought to live in the United Kingdom with her daughter, son-in-law and grandchildren. She could not qualify under the Immigration Rules, either as a relative of a Tier 2 migrant or as a dependent relative. She relied instead on her right to private and family life under Article 8 of the European Convention on Human Rights.

The First-tier Tribunal allowed her appeals against the refusal of entry clearance and further leave to remain. The Upper Tribunal set that decision aside and remade it against her. She appealed to the Court of Appeal.

The central questions were whether the Upper Tribunal had applied the correct Article 8 approach and whether the First-tier Tribunal's original decision could nevertheless stand.

1. The appeal was allowed and the case remitted to the Upper Tribunal. Both tribunals had made material errors of law. The Article 8 decision therefore had to be remade. It was inappropriate for the Court of Appeal to perform that exercise itself.

2. The Upper Tribunal erred by according the Secretary of State's decision a margin of respect. Under Huang v SSHD [2007] 2 AC 167, the tribunal performs a merits determination and must decide the Article 8 issue for itself. The Upper Tribunal's treatment of the claim as insufficiently out of the ordinary was also inconsistent with the required approach. Although it could lawfully have rejected the claim at the engagement stage, its conclusion on that issue was not sufficiently unequivocal to uphold the decision on that basis.

3. The First-tier Tribunal misstated the threshold for engaging Article 8. The Secretary of State did not have to prove that it was reasonable for the applicant to return to the United States alone. The applicant bore the burden of showing that it would be unreasonable to expect the family to live there together. If that was not shown, or if any separation would be short-lived, the interference would not necessarily have consequences sufficiently grave to engage Article 8. The tribunal had confused that preliminary inquiry with the later proportionality questions in R (Razgar) v SSHD [2004] UKHL 27.

4. Where the Immigration Rules do not constitute a complete code, the proportionality assessment is more at large. Nevertheless, the Rules illuminate the relevant regulatory and policy context. The consistent policy restricting the relatives whom temporary migrant workers may bring to the United Kingdom was potentially important and should have formed part of the proportionality assessment. Its existence was not necessarily determinative. The First-tier Tribunal's failure to analyse that policy and the legitimate objective pursued made its decision unsustainable.

1. Court of Appeal (Civil Division): Allowed the appeal, set aside the legally erroneous determination and remitted the Article 8 decision to the Upper Tribunal for reconsideration: [2015] EWCA Civ 118.

2. Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal's decision for error of law and remade the decision against the appellant. No neutral citation is stated.

3. First-tier Tribunal: Allowed the appellant's appeals against the refusals of entry clearance and further leave to remain on Article 8 grounds. No neutral citation is stated.