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

In an immigration judicial review raising Article 8, the Tribunal must decide whether the impugned decision breaches the Convention right, rather than whether the decision-making process displays a conventional public-law error. The focus is on the outcome, save where the Convention right itself has procedural content.

Public-law considerations, including whether relevant matters were considered, may inform proportionality. They must not be substituted for the proportionality inquiry. Unlike a statutory immigration appeal, judicial review remains subject to the decision-maker’s discretionary area of judgment, with intensity varying by context. The Article 8 claim failed because the Secretary of State’s assessment of insurmountable obstacles and proportionality was lawful in outcome and the public interest outweighed the competing family and private-life interests.

The applicant, a Pakistani national whose visitor leave had expired, sought indefinite leave to remain under the Immigration Rules and Article 8 of the European Convention on Human Rights. He relied principally on his long-term relationship with a British citizen whose personal history and medical circumstances were said to make relocation to Pakistan untenable.

The Secretary of State refused the application under Appendix FM and paragraph 276ADE. The applicant sought judicial review, contending that the decision was disproportionate and inadequately reasoned. The central issue was the correct approach to an Article 8 human-rights claim brought in judicial review, and whether the refusal breached Article 8.

1. The application for judicial review was dismissed. The Tribunal held that an Article 8 challenge must be distinguished from a conventional public-law challenge. The determinative question was whether the refusal itself breached Article 8, not whether the Secretary of State had acted irrationally, failed to give reasons, or committed another public-law error.

2. In human-rights adjudication, the normal focus is the outcome of the decision-making process. Defects in process do not themselves establish incompatibility with a Convention right, unless the right in issue has procedural content. However, matters familiar in public law, such as omission of relevant considerations or reliance on irrelevant matters, can properly inform the Tribunal’s assessment of proportionality.

3. In a judicial review, the Tribunal’s proportionality function remains one of review. It is not confined to irrationality, but it is shaped by the discretionary area of judgment accorded to the primary decision-maker. The intensity of review varies with context. This differs from a statutory immigration appeal, in which the First-tier Tribunal determines the human-rights claim, including proportionality, on its merits.

4. The Secretary of State had applied the stringent but practical test of insurmountable obstacles in Appendix FM. The applicant’s partner would face hardship, disruption and anxiety on relocation, but those matters did not make the assessment disproportionate. The decision had addressed the relevant evidence and had not relied on irrelevant material.

5. The applicant also failed to establish very significant obstacles to reintegration for the purposes of paragraph 276ADE(1)(vi). Applying sections 117A and 117B of the Nationality, Immigration and Asylum Act 2002, little weight attached to private life formed while his immigration position was precarious or unlawful. Firm immigration control and the economic wellbeing of the country comfortably outweighed the competing Article 8 interests.

6. The applicant was ordered to pay the respondent’s costs, subject to written submissions. Permission to appeal was refused.

No appellate history is stated. The Upper Tribunal determined a substantive application for judicial review of the Secretary of State’s refusal of leave to remain.