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Judgments - 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) (Conjoined Appeals)

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    19.  In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80, the Privy Council, drawing on South African, Canadian and Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is proportionate:

    "whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."

    This formulation has been widely cited and applied. But counsel for the applicants (with the support of Liberty, in a valuable written intervention) suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103, from which this approach to proportionality derives. This feature is (p 139) the need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted. The House recognised as much in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, paras 17-20, 26, 27, 60, 77, when, having suggested a series of questions which an adjudicator would have to ask and answer in deciding a Convention question, it said that the judgment on proportionality

    "must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage" (see para 20).

    If, as counsel suggest, insufficient attention has been paid to this requirement, the failure should be made good.

    20.  In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar above, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test.


    21.  Mrs Huang was successful in her appeal to an adjudicator, but that decision was reversed on the Secretary of State's appeal to the Immigration Appeal Tribunal. Mr Kashmiri was unsuccessful before both the adjudicator and the Immigration Appeal Tribunal. The Court of Appeal ([2006] QB 1, para 63) found the decisions of the Tribunal in each case to be legally defective, since both, following the approach laid down in M (Croatia) v Secretary of State for the Home Department [2004] INLR 327, adopted a review approach incorrectly based on deference to the Secretary of State's view of proportionality. In the case of Mrs Huang, the Court of Appeal considered that a tribunal might, properly directing itself, find that she had a valid claim under article 8 although she could not qualify under the Rules. It therefore allowed her appeal and remitted her case to the Immigration Appeal Tribunal. In the case of Mr Kashmiri the Court of Appeal was of opinion that a tribunal properly directing itself could not have upheld his claim. It therefore dismissed his appeal.


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