Email in from David Jones at Garden Court Chambers:

Just wanted to drop you a line as it has been flagged up to me that Mark Wray v SSHD [2010] EWHC 3301, a case with which I have been involved, has been relied on in judgments to support interference with Article 8 rights on proportionality grounds in family life cases on the basis of the need to maintain an effective immigration control without more. The case has also been referred to on par with Ekinci v SSHD [2003] EWCA 765 as a case where “an individual is a clear threat and commits heinous crimes such that there is an obvious public interest in his removal, then such individuals have been deported even if there is the inevitable interference with family life”. (1COR Human Rights Blog)

Such reliance and such comparisons are inappropriate for the reasons outlined below, not sure whether it is worth highlighting this now (obviously post the rule changes the world of Article 8 is a changed one). In case you think its worth mentioning though the decision of the High Court was successfully appealed to the Court of Appeal (appeal reference C4/2011/0131) on the following grounds (in summary form only):

(i) that the Secretary of State and the Court below did not recognise that the best interests of the child were a primary consideration;

(ii) that in light of the facts that were conceded by the Secretary of State the fresh claim threshold should have been regarded as having been met, particularly when considered in the context of the presumption laid down by the House of Lords in Chikwamba;

(iii) that contrary to the position inferred by the Judge, the Secretary of State did not approach her determination of the case upon an assumption that the Appellant would in due course secure settled status or that the Appellant’s partner and two sons should be regarded as irremovable, which caused the Judge to err with reference to the veracity of the Secretary of State’s decision making on the fresh claim within those factual parameters;

(iv) that the errors of fact and law were perpetrated in relation to the attribution of weight to the evidence, the Appellant arguing that where the disposal of a fresh claim obliges the expression of a preference for or the weighting of evidence, particularly for the purposes of an Article 8 proportionality assessment, in circumstances where none of the material referenced falls to be disposed of as inherently unreliable, that is properly a matter for an Immigration Judge and is strongly indicative of the desirability of admitting such a claim under the paragraph 353 criteria.

Leave to appeal to the Court of Appeal was granted by Elias LJ (see: Wray v SSHD [2012] EWCA Civ 112, but not on BAILII) and in due course the Secretary of State agreed to settle the case by consent before the matter proceeded to a full hearing. Consequently, the High Court decision should not be referred to in support of Article 8 assessments unfavourable to an applicant, unless those are differentiable on fact and are referred to in that context.

Thanks, David.