Immigration marriage cases must look at both spouses' rights: Inner House

There is no rule in European human rights law that an immigrant who marries a UK national at a time when his or her immigration status is precarious, must establish some “exceptional circumstance” before removal from the UK could amount to an infringement of article 8 of the European Convention, the Inner House has ruled.

In two decisions, Lord Eassie, Lord Brodie and Lady Clark of Calton have found in favour of immigrant spouses who challenged refusals by the Home Secretary to grant leave to remain.

One case concerned Muhammad Khan, who was in the UK on a visitor visa from 2006 to 2010, and before it expired formed a relationship with a British woman whom he married in 2011. He petitioned for judicial review of two decisions to refuse him leave to remain on the ground that while his circumstances might not meet the criteria required by the policies published in the Immigration Rules, the refusal of leave constituted a breach of article 8. The Lord Ordinary held that the decision letters were vitiated by errors and reduced them, and the Advocate General on behalf of the Home Secretary reclaimed.

In the other case, Gulshahabaz Mirza sought judicial review of a similar decision issued on a reconsideration after he had begun proceedings. Mr Mirza came to the UK on a workholder visa valid between 2004 and 2005, and during that time met a British woman to whom he became engaged in 2009. The couple married in 2011 after Mr Mirza applied for and obtained permission from the Home Secretary. The decision letter challenged held that the petitioner had not made out a case for leave being given outside the Immigration Rules. The Lord Ordinary ruled that the ;latter contained no error of law and Mr Mirza reclaimed.

Lord Eassie, delivering the opinion of the court in the Mirza case, observed that the right to marry and to found a family was in itself a fundamental right protected by article 12 of the Convention, and it was inherent that right that married couples had the right to live together. It followed that in an application for leave to remain in, or to enter, the UK as a spouse of someone settled here, consideration had to be given to the rights of that other spouse. "What are in issue are the human rights of the married couple", he stated.

Mr Mirza's wife could not be required to leave the UK. While that did not require the automatic granting of his application, it was "clear that the author of the [decision] letter proceeded entirely on the basis that the petitioner’s wife should go with him to live in Pakistan", Lord Eassie ruled. "That approach ignores the fact of her native British citizenship; it fails to consider that the refusal of leave may result in the indefinite separation of the married couple and whether that indefinite separation can be justified as a proportionate interference with their fundamental right to cohabit as a married couple. We therefore consider that counsel for the petitioner is well founded in his submission that by ignoring the rights flowing to Mrs Mirza by her citizenship of the United Kingdom and assuming that she must go to Pakistan to preserve the substance of her marriage, the decision involved an error of law".

The decision taker also applied the wrong test in relation to article 8 in proceeding upon the basis whether refusal of leave to remain would lead to “unjustifiably harsh consequences”: the issue was whether the interference with private and family life could be justified by the Secretary of State as proportionate to some legitimate objective. The fact that Mr Mirza's immigration status was "precarious" did not "elide the need for a specific, individual assessment of the whole facts including the degree to which it may be said that the status of the relevant party was truly precarious" – as to which the unqualified approval to the marriage was among the relevant factors.

In the Khan case, counsel for the Advocate General accepted that the decision taker had failed to consider article 8 separately from the Immigration Rules, but argued that this was not material where the only consideration put forward was the fact of the marriage. However Lord Eassie, again speaking for the court, said it was also relevant that removal to Pakistan would have material financial and housing consequences for Mrs Khan; and, importantly, given the security situation in Pakistan, there were evident concerns for her safety.  "Further, in our opinion, any assessment of the proportionality of the refusing of leave would require to consider carefully the consequences for the petitioner’s wife of requiring her to leave the United Kingdom or forfeit the substance of her marriage."

The court also rejected the proposition "that in any case in which at the time of contracting marriage the immigration status of one of the parties was precarious (seemingly to any extent), then some 'exceptional circumstance' must be found before any question of an infringement of article 8 ECHR may arise": the Human Rughts Court decision founded on made it clear that whether an interference with private and family life might be justified by the state as proportionate to a legitimate aim depended on an evaluation of the whole circumstances of the case. The reclaiming motion was therefore refused.

Click here to view the Khan judgment.

Click here to view the Mirza judgment.