Leave to enter – Entry clearance – Spouses of British nationals – Claimant foreign nationals married to British nationals

R (on the application of Kotecha) v Secretary of State for the Home Department; R (on the application Das) v Secretary of State for the Home Department: Queen's Bench Division, Administrative Court (London) (Mr Justice Burnett): 29 July 2011

The instant cases were linked because they raised possible conflict between the law on art 8 of the European Convention on Human Rights (the Convention) in the United Kingdom and the law as applied by the Strasbourg Court. In respect of cases concerning the removal of persons from the UK, where art 8 of the Convention was raised, the concept of 'insuperable obstacles' came to be applied in the UK as a test in its own right; the approach was that absent insuperable obstacles to resettlement being established, article 8 would not assist an applicant.

The first claimant, K, who was a national of Tanzania, and the second claimant, D, who was from Bangladesh, were both overstayers having entered the UK legally. Each married after their leave had expired. Each made an application for leave to remain in the UK as the spouse of, respectively, a British citizen and, a Bangladeshi national with indefinite leave to remain. Both applications were refused by the secretary of state and there was no right of appeal because at the time when the applications had been made neither applicant had extant leave to be in the UK.

Thus the procedure open to both claimants was to leave the UK and make an application for an entry clearance on the same basis from abroad. They applied for judicial review not on the ground that the decision of the secretary of state was unlawful under the relevant immigration rule, but contending that the requirement to leave the United Kingdom amounted to a breach of the rights protected by art 8 of the Convention.

It fell to be determined whether the House of Lords had developed the law on art 8 of the Convention in the UK in a way that had parted company with Strasbourg and whether the requirement for the claimants to leave the UK mounted to a breach of the rights protected by art 8 of the Convention.

The court ruled: The House of Lords had not developed the law on art 8 of the Convention in the United Kingdom in a way that had parted company with Strasbourg. It was settled law that the essential object of art 8 was to protect the individual against arbitrary action by the public authorities.

In the context of both positive and negative obligations the state had to strike a fair balance between the competing interests of the individual and of the community as a whole. However, art 8 did not impose on a state a general obligation to respect a married couple's choice of country for their matrimonial residence or to authorise family reunion on its territory.

However, the removal of a person from a country where close members of his family were living might amount to an infringement of the right to respect for family life, as guaranteed by art 8(1) of the Convention. Relevant factors included the extent to which there might be insuperable obstacles to relocating elsewhere was a relevant factor to be considered, the burden being on the applicants to establish the obstacles; and whether settled partners were aware of their spouses' precarious immigration status as being relevant (see [21]-[22], [52] of the judgment).

Just as the proper approach to art 8 was once wrongly equated with the 'insurmountable difficulty' test so presently it might be that another inappropriate substitute for the careful weighing of factors had been found in 'reasonable to move', without an appreciation that such a test itself engaged all the factors identified by Strasbourg.

Similarly, whilst the expectation in cases involving removal of one spouse to enable an application to be made from abroad according to the rules was that comparatively rarely would it be a proportionate requirement, all depended upon the facts (see [52] of the judgment).

In the instant case, the decision in respect of K was proportionate. The nature and extent of the disruption was marginal. K would on one hypothesis be separated from his wife for a handful of weeks at most or on the other she would spend a few weeks in Tanzania with him, as did thousands of tourists from the UK each year.

On either hypothesis they would be put to some expense. The Strasbourg Court would be likely to conclude that the disruption to their lives would be so modest that art 8 would not be engaged at all. If there was an interference sufficient to engage art 8, account of the public interest in firm and fair immigration control came into the balance.

By contrast, the decision in D’s case could not be justified under art 8(2). She would have to return to Bangladesh for a period of between one and three months. She could not readily leave both her children behind; the younger being only two and the elder being six.

Taking a realistic view of the circumstances of the family, requiring D to return to Bangladesh to make her application for entry clearance was disproportionate (see [58]-[60] of the judgment). D succeeded in her application for judicial review and K failed (see [60] of the judgment).

Huang v Secretary of State for the Home Department; Kasmiri v Secretary of State for the Home Department [2007] 4 All ER 15 applied; EB (Kosovo) v Secretary of State for the Home Department [2008] 4 All ER 28 applied; R (on the application of Mahmood) v Secretary of State for the Home Department [2000] All ER (D) 2191 considered; R (on the application of Razgar) v Secretary of State for the Home Department [2004] 3 All ER 821 considered; R (on the application of Chikwamba) v Secretary of State for the Home Department [2009] 1 All ER 363 considered; Y v Russia (2010) 51 EHRR 21 considered; ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 All ER 783 considered.

Zane Malik (instructed by Malik LAw Chambers) for the claimants. Lisa Busch (instructed by Treasury solicitors) for the secretary of state.