A Pakistani citizen entered the UK illegally and claimed asylum. A week before his claim was refused and he was served with removal directions, he married a British citizen of Pakistani origin. Two children were later born.
Held: Only exceptionally should an applicant for leave to remain be able to escape the requirement under the rules for entry clearance to be obtained abroad by having his substantive application to remain – whether under the rules or under article 8-determined here. Removal of one family member to his country of origin would not infringe article 8 if there are ‘no insurmountable obstacles’ to the other members also living there.
In reviewing an administrative decision made before the Act came into effect, but taking effect after, the court was not to judge the decision as if the Act had been in place. Nevertheless, when a public law decision affected fundamental rights, the court should require the decision to demonstrate a non-interference with the appellant’s human rights, or that there was a substantial justification for allowing the interference. The role of the court remained merely supervisory. The greater the interference in the rights, the greater would be the justification required. Different articles allowed interference to different extents or none. The court must keep a ‘principled distance’ between the decision-maker’s decision on the merits and the court’s adjudication. ‘When anxiously scrutinising an executive decision that interferes with human rights, the court will ask the question, applying an objective test, whether the decision-maker could reasonably have concluded that the interference was necessary to achieve one or more of the legitimate aims recognised by the Convention. When considering the test of necessity in the relevant context, the court must take into account the European jurisprudence in accordance with section 2 of the 1998 Act.’ Even where the courts are in as good a position as the Secretary of State to decide an issue which engages Convention rights, they must not do so as if they were his surrogate.
The Master of The Rolls, Lord Justice May And Lord Justice Laws
Times 09-Jan-2001, [2001] 1 WLR 840, [2000] All ER (D) 2191, [2000] EWCA Civ 315, [2001] HRLR 14, [2001] Fam Law 257, [2001] Imm AR 229, [2001] 1 FLR 756, [2001] UKHRR 307, (2001) 3 LGLR 23, [2001] ACD 38, [2001] 2 FCR 63, [2001] INLR 1
Bailii
European Convention on Human Rights 8
England and Wales
Citing:
Approved – Poku v United Kingdom ECHR 1996
. .
Cited by:
Cited – Sayania v Immigration Appeal Tribunal: Same v Secretary of State for Home Department Admn 5-Apr-2001
The claimant sought to quash the IAT refusal of leave to appeal a Special Adjudicator’s decision, which had found no exceptional compassionate circumstances. She was a British Overseas Citizen seeking to be united with her family. She asserted that . .
Appealed to – Regina (Yaser Mahmood) v Secretary of State for Home Department Admn 9-Aug-2001
The Home Secretary had served notice that the applicant was an illegal immigrant, and liable to deportation. An order had been made for the cross examination of the applicant. He had come to England to study, but soon dropped his immediate plans. He . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Followed – Regina v Secretary of State for Home Department ex parte Peter Isiko; Susan and Shemy Isiko CA 20-Dec-2000
. .
Followed – Regina v The Secretary of State for Home Department ex parte Samaroo Admn 20-Dec-2000
. .
Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
Cited – M v London Borough of Islington and Another CA 2-Apr-2004
The applicant asylum seeker had had her application refused, and was awaiting a removal order. She had a child and asked the authority to house her pending her removal.
Held: Provided she was not in breach of the removal order, the council had . .
Cited – EA (Article 8, Entry Clearance, Delay) Iraq IAT 25-Aug-2004
The applicant had entered the UK seeking sylum from Iraq. The adjudicator had allowed her appeal on Human Rights grounds, and the Secretary of State appealed. The claimant had since married in the UK, and her removal wouuld break up her married . .
Cited – Regina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
Cited – Secretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
Cited – Ekinci, Regina (on the Application of) v Secretary of State for the Home Department CA 17-Jun-2003
The appellant, a Turkish citizen entered illegally and claimed asylum. He falsely said he had not sought asylum in another EC country. He had lived in Germany for eight years, and had twice unsuccessfully claimed asylum. Shortly after arrangements . .
Cited – Chikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .
Cited – Batista v Secretary of State for The Home Department CA 29-Jul-2010
The claimant appealed against a deportation order requiring his return to Portugal. He said that when considering the effect of the order on his family, the AIT had applied the wrong test.
Held: The appeal succeeded. The test to be applied was . .
Lists of cited by and citing cases may be incomplete.
Administrative, Human Rights, Immigration
Leading Case
Updated: 10 November 2021; Ref: scu.147348