The latest instalment of President McCloskey’s Massive Open Online Course (“MOOC“) on immigration judicial review is aimed as much at judges as lawyers. In R (on the application of SA) v Secretary of State for the Home Department (human rights challenges: correct approach) IJR [2015] UKUT 536 (IAC) we are instructed in the distinction between public law and human rights challenges to a decision.

I mock, but the determination is something of an academic tour de force. Its heart lies at paragraph 31:

Implicit in the decisions in Daly and Huang is the proposition that where human rights issues fall to be decided in judicial review proceedings the function of the Upper Tribunal (and, for that matter, the Administrative Court) does not equate with that of the FtT in statutory appeals. Rather, in adjudicating on questions of proportionality, the function remains one of review. That said, it is appropriate to emphasise that the standard of review is not that of irrationality and, further, the latitude, or discretionary area of judgment, to be accorded to the Secretary of State will vary according to the context. Thus the scale of intensity of review is a sliding one. A case warranting high intensity review could, in the abstract, differ little in substance from an FtT merits appeal. The extent to which these two distinct methods of judicial superintendence merge will depend upon further developments in the law. One of the modest aims of this judgment is to highlight the distinction.

On this sliding standard of review, the President finds no basis for interfering with the Secretary of State’s decision. The key question on the facts was whether relocation of the Applicant and his partner to Pakistan was disproportionate and, in answering that question, whether there were “insurmountable obstacles” to such relocation, those words being interpreted thus:

As the most recent learning on the test of insurmountable obstacles, contained in the decision of the Court of Appeal in R (on the application of Agyarko and others) v Secretary of State for the Home Department [2015] EWCA Civ 440, makes clear, this phrase as used in the Rules is intended to have the same meaning as in the Strasbourg jurisprudence, illustrated in Jeunesse v The Netherlands [2015] 60 EHRR 17 at [117]. Giving the judgment of the Court, Sales LJ highlighted two particular features of the insurmountable obstacles criterion. First, while imposing a stringent test, it is to be interpreted ” in a sensible and practical rather than a purely literal way”: see [23]. Second, this criterion is not simply a factor to be taken into account. Rather, it is a condition which must be satisfied if a claim under the Rules is to succeed.

For the Free Movement write up of Jeunesse see Strasbourg decides important case on respect for family life.

It is a hard outcome for the Appellant and his partner, for whom the President accepts “settling in Pakistan will undoubtedly involve hardship, disruption, anxiety and various challenges.” She had been in care from a young age and experienced a very difficult youth, and she credited her partner with having fundamentally transformed her life. That life will now need to be made abroad or they will need to separate; they appear to have no prospect of satisfying the spouse minimum income threshold.

The headnote to SA reads:

(i) Tribunals should be alert to distinguish between human rights grounds and public law grounds.

(ii) In judicial review challenges which include Article 8 ECHR grounds, the question is not whether the impugned decision is vitiated by one or more of the established public law misdemeanours. Rather, the question is whether a breach of Article 8 has been demonstrated.

(iii) Provided that the above distinction is appreciated, judicial adjudication of issues of proportionality may legitimately be informed by public law principles.

(iv) The tribunal’s approach to proportionality in immigration judicial reviews and immigration appeals differs. In judicial review, the role of the Tribunal is limited by the principle of the discretionary area of judgment, albeit the intensity of review will invariably depend upon the context. This inhibition does not apply in statutory appeals: Huang v SSHD.

(v) In human rights cases, the focus of the court or tribunal is always on the product of the decision making process under scrutiny, rather than the process itself, except where Convention rights which have a procedural content are engaged.

Zane Malik of Counsel represented the Secretary of State. His recent loss as the appellant’s representative in Giri was cited quite extensively by the President. Ms I Thomas of Counsel, instructed by Lloyds Solicitors, represented the appellant.