Secretary of State for the Home Department v Abbas

Article 8 does not impose a positive obligation on a Convention state to admit a foreign national who is outside its territory so that the person may develop a private life by visiting relatives. The limited positive obligation recognised in entry cases concerning family life does not extend to private life. Family life is unitary and may engage the rights of family members already within the state, whereas private life encompasses diverse individual interests and supplies no equivalent jurisdictional basis.

A person abroad who seeks entry for private-life purposes is ordinarily outside the state's jurisdiction under article 1. Article 8 is therefore not engaged and no proportionality assessment arises. Domestic courts must not expand Convention rights beyond the clear and constant Strasbourg jurisprudence.

A Pakistani national applied for entry clearance so that he, his wife and their children could visit his uncle and grandmother in the United Kingdom. The application was refused under the Immigration Rules because of an earlier finding of deception and because the Entry Clearance Officer was not satisfied that the family would leave after the visit.

The First-tier Tribunal found that no qualifying family life existed but allowed the human-rights appeal on the basis that visiting the relatives formed part of the applicant's private life under article 8 of the European Convention on Human Rights. The Upper Tribunal dismissed the Secretary of State's appeal.

The central issue was whether article 8 imposed a positive obligation to admit an adult who was outside the United Kingdom so that he could visit an elderly relative and develop his private life.

1. Appeal allowed. Article 8 of the European Convention on Human Rights did not impose a positive obligation on a Convention state to admit a foreign national for the purpose of developing a private life. No Strasbourg authority recognised such an obligation. Extending article 8 in that way would represent a substantial and impermissible expansion of the Convention's reach in immigration matters: paras 18–22, 27.

2. The limited Strasbourg jurisprudence permitting a person abroad to rely on family life was founded on the unitary character of a family and the presence within the state of a family member whose rights were affected. The rights of the family unit must be considered as a whole. The same reasoning could not apply to the multifarious aspects of an individual's private life: paras 16–20, 25.

3. The decision in Singh v Secretary of State for the Home Department [2015] EWCA Civ 630 did not establish that a person abroad could invoke private life to gain entry. It concerned settled adults resisting removal after developing a private life in the United Kingdom. The Upper Tribunal had therefore misunderstood that authority: para 15.

4. Under the principle stated in Ullah v Special Adjudicator [2004] 2 AC 323, domestic courts should keep pace with the clear and constant Strasbourg jurisprudence, but should not move beyond it. The tribunals had out-paced Strasbourg by recognising a novel positive obligation: paras 21–22.

5. The respondent and his family were outside the jurisdiction of the United Kingdom for article 1 purposes. Convention jurisdiction is primarily territorial. None of the exceptional bases for exercising jurisdiction outside national territory applied. Unlike a family-life case, there was no person within the United Kingdom whose relevant Convention rights supplied a jurisdictional connection: paras 23–25.

6. Article 8 was not engaged. No proportionality question therefore arose, and the First-tier Tribunal should have dismissed the human-rights appeal. The Court of Appeal set aside the Upper Tribunal's order upholding that decision: para 27. Ryder SPT and Gloster LJ agreed with Burnett LJ.

1. Court of Appeal (Civil Division): Allowed the Secretary of State's appeal and held that article 8 was not engaged. The First-tier Tribunal should have dismissed the respondent's appeal: [2017] EWCA Civ 1393.
2. Upper Tribunal (Immigration and Asylum Chamber): Dismissed the Secretary of State's appeal, holding that the First-tier Tribunal had made no error of law.
3. First-tier Tribunal: Allowed the respondent's human-rights appeal against refusal of entry clearance, finding that refusal disproportionately interfered with his private life under article 8 of the European Convention on Human Rights.