BRITCITS v The Secretary of State for the Home Department

An immigration rule may be struck down for incompatibility with article 8 only if it cannot be applied without violating article 8 in all or nearly all cases. It is enough that the rule can operate lawfully because article 8 is not engaged or because an interference is justified and proportionate.

Family life between adult relatives does not arise from blood ties and ordinary affection alone. The relationship must display more than normal emotional ties.

A statutory requirement to make rules for admitting dependants does not require the admission of every category of dependant or prescribe a minimum width for the route. Eligibility may be restricted, provided that the rules promote the statutory purpose and are rational.

BRITCITS, a charity representing sponsors and applicants affected by family-migration rules, sought judicial review of the rules governing admission of adult dependant relatives. The challenged provisions required an applicant to need long-term personal care and to be unable, despite the sponsor’s assistance, to obtain the required care in the country of residence.

Mitting J dismissed challenges alleging that the rules exceeded the power conferred by the Immigration Act 1971, were irrational under common-law principles, and were incompatible with article 8 of the Convention. He granted permission to appeal.

The principal questions were whether the rules defeated the statutory policy, operated as an irrational or practically impossible gateway, or were inherently incompatible with article 8 in all or nearly all cases.

1. Appeal dismissed. The challenged adult dependant relative rules were within the statutory power, rational and capable of operating compatibly with article 8.
2. The care available in the applicant’s country must be reasonable from the perspectives of both provider and applicant and must meet the level required by that particular applicant. The assessment is objective. Accessibility, geographical location, quality of care and emotional or psychological requirements supported by expert medical evidence may all be relevant. It was therefore incorrect to treat failure under the rules as practically inevitable.
3. The Padfield challenge failed. Section 1(4) of the Immigration Act 1971 requires rules making provision for dependants, but expressly permits restrictions. It neither requires admission of all dependants or any particular category nor imposes a minimum width upon the route. The duty identified in Munir had been fulfilled. Section 1(1) did not confer a constitutional right upon a British citizen to live in the United Kingdom with a non-EEA relative lacking a right of abode.
4. The rules were unlike the provision invalidated in Manshoora Begum. They were neither a pretence incapable of fulfilment nor partial and unequal between classes. They rationally implemented the objectives of reducing public health and social-care costs while admitting applicants whose needs could only reasonably and adequately be met in the United Kingdom. Prior consultation, parliamentary debate and approval were highly relevant, though not conclusive, when assessing common-law unreasonableness.
5. Family life under article 8 does not automatically exist whenever an adult child wishes to care for an elderly parent. Blood ties, concern and ordinary affection are insufficient without more than normal emotional ties. The relationship’s history, closeness, dependency, cultural setting, age, health and vulnerability may be relevant.
6. An immigration rule is not itself required to guarantee article 8 compliance in every individual case. It may be quashed only where it is incapable of proportionate operation and inherently unjustified in all or nearly all cases. Sales LJ, with whom Davis LJ agreed, explained that where engagement of article 8 is itself disputed, the question is whether the rule is incapable of application without violating article 8. A rule must stand if it can operate lawfully in some cases because article 8 is not engaged or because an interference is justified and proportionate.

1. Court of Appeal (Civil Division): Dismissed the appeal and upheld the refusal of judicial review.
2. High Court, Administrative Court: Mitting J dismissed the application for judicial review by order dated 20 April 2016, but granted permission to appeal.