Article 8 in applications for leave to remain in the UK as the spouse of a British citizen
Kotecha & Anor, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2070 (Admin) (29 July 2011): The two applicants in this case were overstayers. Both entered the UK legally but stayed after their leave to remain had expired. After some years the applicants applied for leave to remain as the spouse of, in one case a British citizen, and, in the other, a Bangladeshi national with indefinite leave to remain. Both applications were refused. Both applicants had married after their leave to remain had expired, and so under UK immigration law had no right of appeal whilst they remained here. To appeal under immigration law, the applicants had to make an application for entry clearance from abroad. The instant case was a judicial review of the Secretary of State's refusals to allow the applicants to remain in the UK.
Under paragraph 284 of the Immigration Rules, which governs applications for leave to remain in the UK as a spouse or civil partner of a person present or settled in the UK, applicants must not have remained in the UK in breach of immigration laws. The refusals of the applications were thus lawful. The question was whether the decision to refuse leave to remain was compatible with Article 8 of the European Convention on Human Rights (right to family life).
Mixed nationality couples have ‘no right to set up home in whichever country they choose'ZH (Tanzania) v SSHD [2011] UKSC 4). This was decided in the European Court of Human Rights case Abdulaziz, Cabales and Balkandali v UK [1985] 7 EHRR 471. The Court did hold, however, that ‘although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective ‘respect' for family life'. This means that once a couple has set up home, state interference with that family's life must be proportionate to the legitimate immigration policy aim to be achieved. Only in the most exceptional circumstances will removal of the non-national family member from the UK violate Article 8 (Mitchell v UK (Application No. 40447/98 [1998]); Ajayi v UK (Application No. 27663/95 [1999]).
Member States enjoy a ‘margin of appreciation' to decide their own immigration policies. In particular, Article 8 cannot be considered to ‘impose on a state a general obligation to respect a married couple's choice of country for their matrimonial residence' (Y v Russia [2010] 51 EHRR 21). The English courts have kept pace with the European Court's Article 8 judgements (EB (Kosovo) v. Secretary of State for the Home Department [2008] UKHL 41).
For these reasons, given that both applicants qualified for entry clearance to the UK, the Court held there would be no undue interference with the first applicant's family life if he were made to return to Tanzania, where his application for entry clearance would take about a month to process. His wife would have the option of accompanying him there. To make the second applicant return to Bangladesh would however breach Article 8 because she would have to leave her children, or their lives would be disrupted if the family moved to Bangladesh for about a month. The first applicant's application for judicial review was dismissed. The second applicant's was allowed.
At Ergen & Sharif, our experienced lawyers can assist you whether you are making an initial or fresh application, whether you have been refused and wish to exercise a right of appeal or even where you have been denied a right of appeal.
For further information on how we can help, please contact us on 0207 569 3035 or alternatively email us at info@ergensharif.co.uk
Under paragraph 284 of the Immigration Rules, which governs applications for leave to remain in the UK as a spouse or civil partner of a person present or settled in the UK, applicants must not have remained in the UK in breach of immigration laws. The refusals of the applications were thus lawful. The question was whether the decision to refuse leave to remain was compatible with Article 8 of the European Convention on Human Rights (right to family life).
Mixed nationality couples have ‘no right to set up home in whichever country they choose'ZH (Tanzania) v SSHD [2011] UKSC 4). This was decided in the European Court of Human Rights case Abdulaziz, Cabales and Balkandali v UK [1985] 7 EHRR 471. The Court did hold, however, that ‘although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective ‘respect' for family life'. This means that once a couple has set up home, state interference with that family's life must be proportionate to the legitimate immigration policy aim to be achieved. Only in the most exceptional circumstances will removal of the non-national family member from the UK violate Article 8 (Mitchell v UK (Application No. 40447/98 [1998]); Ajayi v UK (Application No. 27663/95 [1999]).
Member States enjoy a ‘margin of appreciation' to decide their own immigration policies. In particular, Article 8 cannot be considered to ‘impose on a state a general obligation to respect a married couple's choice of country for their matrimonial residence' (Y v Russia [2010] 51 EHRR 21). The English courts have kept pace with the European Court's Article 8 judgements (EB (Kosovo) v. Secretary of State for the Home Department [2008] UKHL 41).
For these reasons, given that both applicants qualified for entry clearance to the UK, the Court held there would be no undue interference with the first applicant's family life if he were made to return to Tanzania, where his application for entry clearance would take about a month to process. His wife would have the option of accompanying him there. To make the second applicant return to Bangladesh would however breach Article 8 because she would have to leave her children, or their lives would be disrupted if the family moved to Bangladesh for about a month. The first applicant's application for judicial review was dismissed. The second applicant's was allowed.
At Ergen & Sharif, our experienced lawyers can assist you whether you are making an initial or fresh application, whether you have been refused and wish to exercise a right of appeal or even where you have been denied a right of appeal.
For further information on how we can help, please contact us on 0207 569 3035 or alternatively email us at info@ergensharif.co.uk
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