Article 8 ECHR –An overview of recent decisions

Posted On: 28 February 2006

Author: Scott Blair

Download full article: Article 8 ECHR –An overview of recent decisions [pdf-206kB]

(This article has been abridged to fit on the website - to read the full article please download the PDF)

HUANG AND ARTICLE 8

Perhaps the single biggest issue in the last year has been the approach that the appellate authorities require to take  as a matter of law to the question of proportionality of interferences which engage Article 8.

In Huang v. Secretary of State for the Home Department [2005] EWCA Civ 105 the judgment of the Court was delivered by Laws LJ. This is the "big" case on this point . In Huang :-

1. Following the approach of the House of Lords in Razgar [2004] UKHL 27, and in particular the Speech of Lord Bingham of Cornhill, it was not correct to ask as a matter of law whether the Secretary of State was reasonably entitled to come to the decision that an interference with an Article 8 right would be proportionate under Article 8;
2. Therefore the correct approach was for the appellate authority to determine the matter of proportionality for itself;
3. Which meant that earlier decisions of the Court of Appeal in Edore [2003] EWCA Civ 716 and related cases and the decision in M(Croatia) [2004] UKIAT 00024 of the IAT were wrong in law;
4. However in determining the question of proportionality, policy was a matter upon which the appellate authorities should defer to the Secretary of State, subject to the Secretary of State requiring if challenged, to provide a substantively reasoned justification for the policy;
5. By contrast in determining a question of issues other than policy, such as matters of fact, there was no question of deference. Such matters did not lie within the constitutional responsibility of government;
6. The result of all of this is that the starting point lies with the Immigration Rules, conceived by the Executive and approved by Parliament. The policy of these Rules should not be questioned by the appellate authority. Deference should be shown to them as the appropriate Article 8 balance should in most cases be found in these Rules without more.
7. Although the Court leaves open the possibility that a Rule might still violate Article 8 , in cases which fell outwith the Rules, it was only where the facts where exceptional, could there be a right to remain (or enter) based on Article 8;

Huang is good for appellants on one level. The Wednesbury review found in M(Croatia) and Edore et al are gone. Instead an immigration judge has to determine for themselves the question of the proportionality of removal.

The bad news is that there is still built into that assessment deference for the Immigration Rules and related provisions such as relevant policies and concessions. If a case falls outwith these then only exceptional cases will have any prospect of success.

Huang has been appealed to the House of Lords by the Home Office (as far as I am aware) on the jurisdiction point and by the appellants on the "exceptionality" point. I am not yet aware of the date for the appeal. 

Until it is decided the following cases will have to be considered when approaching Article 8 removal, deportation and entry clearance cases. Bear in mind though that Huang and the children of Huang are not binding on the appellate authorities when sitting in Scotland or even on a video link reconsideration hearing from London!

Before we leave Huang to look at some of the cases decided since Huang, I would like to offer my own views as to the correctness of Huang. On one issue I can come straight to the point. Huang is clearly correct as a matter of law on the question of jurisdiction. The role of the appellate authorities is one of appeal not review. M(Croatia), Edore et al were plainly wrong. They imposed restrictive judicial review standards onto an appellate structure without any clear legislative intent to that effect.
         
On other aspects of Huang I have more reservations.   

The Court clearly rejected (at para. 48) the proposition that the jurisprudence of the European Court of Human Rights, and in particular, Boultif v. Switzerland (2001) 33 EHRR 1179 required the immigration appellate authority to carry out a full merits review of the merits of a removal decision to comply with Article 8 ECHR (para. 48) as opposed to a more limited form of review. This was on the footing that the Immigration Rules were the starting point for the assessment of proportionality.  This was so even although the Court had already made the observation that :-

          " 47. The decision in Boultif is striking. There is no mention of the margin of appreciation. The court determined the case by reference to its own view of the merits. It adopted a similar course on very different facts in another Article 8 case to which we were referred, namely Sen v Netherlands. We need not with respect take time with the details. ''
  

This paper was originally delivered on 6 February 2006 at a Seminar organised by LSA Glasgow, and is reproduced with their kind permission.