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

The Secretary of State’s power under section 1(4) of the Immigration Act 1971 permits Immigration Rules to define and exclude subcategories of dependants, subject to Convention rights. Rules made under parliamentary approval are not subject to ordinary Wednesbury review. They may be struck down only if discriminatory, manifestly unjust, made in bad faith, or oppressively or gratuitously interferential without reasonable justification. Under Article 8, a rule is unlawful only if it is incapable of proportionate application, or disproportionate in all or nearly all cases. A rule’s severe practical impact and questionable financial assessment do not alone justify striking it down where binding authority establishes that it may operate proportionately in some cases.

The claimant charity challenged the adult dependent relative provisions in Appendix FM of the Immigration Rules. The provisions required an applicant to need long-term personal care because of age, illness or disability and to be unable, even with the sponsor’s help, to obtain the required care in the country of residence. The challenge alleged that the provisions exceeded section 1(4) of the Immigration Act 1971, were unreasonable, and breached Article 8 of the European Convention on Human Rights.

The Administrative Court considered the statutory rule-making power, the common-law test applicable to Immigration Rules, and whether the challenged provisions were proportionate in general application.

1. Ultra vires. Section 1(4) of the Immigration Act 1971 authorises the Secretary of State to define the cases and restrictions governing admission within the statutory categories. Parliament imposed no duty to admit all dependants. The Secretary of State could therefore exclude adult dependants generally or exclude those who did not require personal care, or whose care could be provided in their country of origin.
2. Unreasonableness. Because the Immigration Rules derive their authority from Parliament and were approved under the negative resolution procedure, the applicable test was the narrower Kruse v Johnson standard. The challenged provisions were exceptionally difficult to satisfy but were not logically impossible to operate. They could apply without arbitrariness or unjustifiable unfairness in a limited number of cases.
3. Article 8. The rule interfered with family life in many cases. Proportionality required consideration of the importance of the objective, rational connection, less intrusive measures, and fair balance, with the third question framed by whether the limitation was one it was reasonable for the legislature to impose. The evidence raised substantial concerns, including the rule’s unexpectedly severe impact, uncertain financial estimates, and possible alternatives such as insurance or a bond.
4. Binding Court of Appeal and Supreme Court authority established that an Immigration Rule is not unlawful merely because it produces disproportionate outcomes in particular cases. It may be struck down only if it is incapable of proportionate application or disproportionate in all or nearly all cases. The claimant’s Article 8 challenge therefore failed.
5. The claim for judicial review was dismissed. Permission to appeal was granted. The claimants were ordered to pay the defendant’s costs, limited to £15,000, with execution stayed pending the appeal.

This was a first-instance judicial review. The court granted permission to appeal and stayed execution of the costs order pending determination of the appeal.