Rules - Compatibility with human rights - Claimants appealing

R (on the application of Syed) v Secretary of State for the Home Department; Patel v Secretary of State for the Home Department: Court of Appeal, Civil Division (Sir Anthony May, Lords Justice Thomas and Elias): 7 September 2011

Two appeals were heard together. The claimant in the first appeal (the first claimant) was a national of Pakistan. The secretary of state decided not to grant his application for indefinite leave to remain in the United Kingdom under the Immigration Rules (the rules).

His application was refused on the basis that he had failed to show that he had completed 10 years continuous lawful residence in the UK, as required by paragraph 276B of the rules. The first claimant applied for judicial review of that decision. In the interim, he was granted leave to remain for three years. The claimant in the second appeal (the second claimant) was a national of India. The secretary of state refused his application for indefinite leave to remain on the basis that he had not satisfied two of the requirements of paragraph 319 of the rules. His appeals to the first tier tribunal and then the upper tribunal were both dismissed. He appealed against the decision of the upper tribunal.

The principal issue that fell to be determined was whether the rules ought to be read and given effect under section 3 of the Human Rights Act 1998 so as to make them compatible with the rights of immigrants under article 8 of the convention. The first claimant submitted that the secretary of state's decision had amounted to a disproportionate breach of his article 8 rights and that paragraph 276B of the rules should be construed as having regard and giving effect to article 8.

The second claimant submitted that the first tier tribunal had misconstrued paragraph 317 of the Immigration Rules which also ought to have been construed having regard and giving effect to article 8. The appeals would be dismissed.

It was established law that the rules contained no over-arching implicit purposes. Their only purpose was to articulate the secretary of state's specific policies with regard to immigration control from time to time, as to which there were no presumptions, liberal or restrictive.

The rules were to be construed according to their natural and ordinary meaning. In applying the policy of the rules, article 8 might have an application. In applying the rules, the secretary of state had to respect convention rights whether or not the rules specifically introduced them. In exercising her powers, whether within or outside the rules of practice, the secretary of state had to have regard and give effect to applicants' convention rights.

An immigrants' rights under article 8 of the convention had to be protected by the secretary of state and the court, whether or not that was done through the medium of the rules. The rules were not of themselves required to guarantee compliance with article 8. If a decision under the rules produced a result which was not compliant with article 8, some discretionary action outside the rules would be needed to avoid that result (see [24]-[27], [35]-[37] of the judgment).

In the instant case, the first claimant had been granted leave to remain for three years, and there had not been any arguable infringement of his article 8 rights. If a decision had been under consideration which had affected the claimant's rights under article 8, the secretary of state would have had to have regard to those rights, but that would not have required a construction of the rules which was not their natural and ordinary meaning.

The second claimant's appeal had been an incompetent appeal to the court; he had been refused permission to appeal on that ground and he had never renewed his application to appeal (see [22], [37] of the judgment). AM (Ethiopia) v Entry Clearance Officer [2008] All ER (D) 150 (Oct) considered; MD (Jamaica) v Secretary of State for the Home Department; GE (Canada) v same [2010] All ER (D) 88 (Mar) considered; Secretary of State for the Home Department v Pankina [2010] All ER (D) 196 (Jun) considered. Decision of Charles George QC [2010] EWHC 2888 (Admin) affirmed.

Zane Malik (instructed by Malik Law Chambers Solicitor) for the claimants. Matthew Barnes (instructed by the Treasury Solicitor) for the secretary of state.