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Zahra Pabani
Zahra Pabani
Partner - Family Law
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IMMIGRATION/HUMAN RIGHTS: R (A) v Secretary of State for the Home Department [2007] EWCA Civ 655
Date:4 JUL 2007

(Court of Appeal; Sir Igor Judge, President of the Queen's Bench Division, May and Moore-Bick LJJ; 4 July 2007)

The mother arrived in the UK with her three children on a visitor's visa. When this ran out she got a student visa but thereafter remained in the UK unlawfully. She married a British citizen and subsequently applied to be allowed to stay in the UK as his wife. After a delay of 23 months, during which time she had given birth to twins fathered by her British husband, the Secretary of State refused her application and ordered her to return to Jamaica with her children: the position of A and her family was not a sufficiently compelling reason to depart from the normal practice of removing illegal over-stayers. In judicial review proceedings commenced by A the judge quashed the Secretary of State's decision, holding that it would not be proportionate to remove A temporarily to enable an application to be made from Jamaica, and that it was in breach of her rights under Art 8 European Convention for the Protection of Human Rights and Fundamental Freedoms 1950: the 23 month delay meant that family life had become established in the UK. It would be unnecessary to remove A and children to maintain proper immigration control when the Secretary of State had been guilty of an inordinate and inexcusable delay. The Secretary of State appealed.

The appeal would be allowed. Fresh evidence plus recent Court of Appeal and House of Lords authorities put the case in a different light. The balance had to be struck between Art 8 rights and need for a consistent and fair immigration policy. The delay must be extreme to the point of national disgrace before it would be inequitable to enforce the rules: A's case did not reach that extreme and the strength of her Art 8 case did not put her in the small minority of cases which would not be outweighed by the countervailing public interest. The requirement to return to Jamaica would not have breached the family's Art 8 rights.