Huang v Secretary of State for the Home Department; Abu-Qulbain v Same; Kashmiri v Same

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date21 Mar 2007
Neutral Citation[2007] UKHL 11

[2007] UKHL 11

HOUSE OF LORDS

Huang (FC)
(Respondent)
and
Secretary of State for the Home Department
(Appellant)
and
Kashmiri (FC)
(Appellant)
and
Secretary of State for the Home Department
(Respondent) (Conjoined Appeals)

First Appeal: Huang

Appellant:

Monica Carss-Frisk QC

Adam Robb

(Instructed by Treasury Solicitor)

Respondent:

Nicholas Blake QC

Raza Husain

(Instructed by TRP Solicitors)

Second Appeal: Kashmiri

Rabinder Singh QC

Duran Seddon

(Instructed by Luqmani Thompson & Partners)

Monica Carss-Frisk QC

Adam Robb

(Instructed by Treasury Solicitor)

Ordered to Report

The Committee (Lord Bingham of Cornhill, Lord Hoffmann, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood) have met and considered the causes Huang (FC) (Respondent) v. Secretary of State for the Home Department (Appellant) and Kashmiri (FC) (Appellant) v. Secretary of State for the Home Department (Respondent). We have heard counsel on behalf of the appellants and respondents.

1

The following is the opinion of the Committee.

2

These two appeals have been heard together. They raise a common question on the decision-making role or function of appellate immigration authorities (adjudicators, the Immigration Appeal Tribunal, immigration judges) when deciding appeals, on Convention grounds, against refusal of leave to enter or remain, under section 65 of the Immigration and Asylum Act 1999 and Part III of Schedule 4 to that Act.

3

Mrs Huang is a Chinese citizen born on 29 March 1942. Her husband (from whom she is separated), daughter, son-in-law and two grandsons are British citizens living in this country. Mr Kashmiri is an Iranian citizen born on 4 July 1981. His parents and two siblings came to this country in 2000 and were in due course granted indefinite leave to remain as refugees, but Mr Kashmiri's claim to asylum has been refused. It is unnecessary for purposes of deciding these appeals to explore the underlying facts of these two cases, and given our conclusion on the outcome of the appeals it is undesirable to do so.

4

Mrs Huang appears before the House as a respondent in an appeal by the Secretary of State and Mr Kashmiri as an appellant in an appeal against the Secretary of State, but it is convenient to refer to them as "the applicants". Neither of the applicants qualifies for the grant of leave to remain in this country under the Immigration Rules and administrative directions currently promulgated. Both claim that the refusal of leave to remain is unlawful because incompatible with their Convention right to respect for their family life guaranteed by sections 2, 3 and 6 of and article 8 in Schedule 1 to the Human Rights Act 1998. This opinion is directed solely to the position of those who, like the applicants, do not qualify for entry under the Immigration Rules and supplementary administrative directions in force from time to time and base their claim on the family life component of article 8. For convenience we shall refer to adjudicators, the Immigration Appeal Tribunal and immigration judges, without differentiation, as "the appellate immigration authority" or "the authority".

Immigration control and human rights

5

As stated in R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Commissioner for Refugees Intervening) [2004] UKHL 55, [2005] 2 AC 1, para 11, the power to admit, exclude and expel aliens was among the earliest and most widely recognised powers of the sovereign state. But it seems unlikely that any developed state has ever enforced, or sought to enforce, a blanket rule to exclude the entry of all foreign nationals. Some exceptions were always made, and by the 1951 Geneva Convention and the 1967 Protocol, to which some 140 states are now party, states bound themselves to grant asylum to foreign nationals entitled to recognition as refugees.

6

In this country, successive administrations over the years have endeavoured, in Immigration Rules and administrative directions revised and updated from time to time, to identify those to whom, on grounds such as kinship and family relationship and dependence, leave to enter or remain should be granted. Such rules, to be administratively workable, require that a line be drawn somewhere. Thus, for example, rule 317, relevant to the claim of Mrs Huang, makes provision for the admission of a parent, grandparent, or other dependent relative of any person present and settled in the United Kingdom if (among other grounds) she is a mother or grandmother who is a widow aged 65 years or over. Mrs Huang does not qualify under this head since she was not, when the decision was made, aged 65 or over and she is not a widow. Such a rule, which does not lack a rational basis, is not to be stigmatised as arbitrary or objectionable. But an applicant's failure to qualify under the Rules is for present purposes the point at which to begin, not end, consideration of the claim under article 8. The terms of the Rules are relevant to that consideration, but they are not determinative.

7

Although the United Kingdom ratified the European Convention on Human Rights in 1951, the Convention did not for some years exert any significant influence on British law and practice in the immigration field. In Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, 493, para 57, eminent leading counsel on behalf of Her Majesty's Government contended before the European Court in Strasbourg that matters of immigration control lay outside the scope of article 8 so that no complaint based on the application of immigration control could succeed under that article, either alone or in conjunction with a claim of discrimination under article 14. That argument was rejected (pp 494-495, paras 59-60) and the applicability of article 8 to immigration control has since been accepted.

8

In the Human Rights Act 1998 Parliament not only enabled but required the Convention rights set out in Schedule 1 to the Act (including article 8) to be given effect as a matter of domestic law in this country. It did so (section 2) by requiring courts or tribunals determining a question which had arisen in connection with a Convention right to take into account any relevant Strasbourg jurisprudence, by requiring legislation, where possible, to be read compatibly with Convention rights (section 3) and, most importantly, by declaring it unlawful (section 6) for a public authority to act in a way incompatible with a Convention right. Thus immigration officers, the appellate immigration authority and the courts, as public authorities (section 6(3)), act unlawfully if they do not (save in specified circumstances) act compatibly with a person's Convention right under article 8. The object is to ensure that public authorities should act to avert or rectify any violation of a Convention right, with the result that such rights would be effectively protected at home, thus (it was hoped) obviating or reducing the need for recourse to Strasbourg.

9

Two important steps were taken to ensure compliance with this new domestic legal obligation. The first was to amend (Cm 4851, September 2000) the then current Immigration Rules so as to require immigration officers, entry clearance officers and all staff of the Home Office Immigration and Nationality Directorate to carry out their duties in compliance with the provisions of the Human Rights Act 1998. It is these officers who ordinarily decide, in the first instance, whether leave to enter or remain in the country should be granted.

10

The second important step was to enact section 65 of and certain paragraphs of Schedule 4 to the Immigration and Asylum Act 1999. Section 65 lies at the heart of these appeals and must be quoted in full:

"65.–(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision unless he has grounds for bringing an appeal against the decision under the Special Immigration Appeals Commission Act 1997.

(2) For the purposes of this Part, an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.

(3) Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant's entitlement to enter or remain in the United Kingdom, acted in breach of the appellant's human rights.

(4) The adjudicator, or the Tribunal, has jurisdiction to consider the question.

(5) If the adjudicator, or the Tribunal, decides that the authority concerned acted in breach of the appellant's human rights, the appeal may be allowed on that ground.

(6) No appeal may be brought under this section by any person in respect of a decision if–

(7) "Authority" means–

  • (a) the Secretary of State;

  • (b) an immigration officer;

  • (c) a person responsible for the grant or refusal of entry clearance."

Section 65 was supplemented by paragraphs 21 and 22 of Part III of Schedule 4 to the 1999 Act which, so far as relevant, provided:

"21.–(1) On an appeal to him under Part IV, an adjudicator must allow the appeal if he considers–

  • (a) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable...

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