Pakistani man who married British woman wins human rights challenge over leave to remain

Muhammad Irfan Khan brought a petition for judicial review,arguing that the refusal of leave to remain in the UK as a spouse of a British national constituted a breach of his right to a private and family life under article 8 of the European Convention on Human Rights (ECHR).

The Lord Ordinary ruled that two refusal letters by the Home Secretary should be reduced and the Advocate General for Scotland– representing the Secretary of State –appealed, but judges in the Inner House of the Court of Session upheld the decision of the Lord Ordinary.

Lord Eassie (pictured), Lord Brodie and Lady Clark of Calton heard that the petitioner came to the UK in July 2006 on a visitor visa which was valid until November 2010.

Shortly before the visa expired, he met shop assistant Jacqueline Tough and formed a friendship with her. Their friendship developed and they started to live together in May 2011, before getting married in September 2011.

In November 2011 the petitioner applied for leave to remain in the UK as the spouse of a British national, but by a letter written on behalf of the Secretary of State in January 2012–“the first refusal letter” – the petitioner’s application was refused.

The petitioner then made further representations to the Secretary of State and asked for reconsideration of his application, but “the second refusal letter” in March 2013 maintained her refusal to grant leave to the petitioner after concluding that, in terms of the Immigration Rules, there were no “insurmountable obstacles” to the petitioner and his wife continuing their family life together in Pakistan.

The petitioner challenged both refusal decisions and the Lord Ordinary held that while the test of “insurmountable obstacles” may be set by the Immigration Rules, that test was not to be equiparated with the requirement under article 8 ECHR, that the interference with the private and family life in question must be proportionate, and that the refusal letter did not attempt any such assessment of proportionality.

On appeal, counsel for the Advocate General accepted that the second refusal letter failed to give any consideration outwith the Immigration Rules to the rights of the petitioner and his wife under article 8 ECHR, and that the omission was an“error in law,” but it was argued that the error was“not material”.

It was submitted that the family life created by the marriage had been created at a time at which the petitioner’s immigration status was“precarious”and before the removal from the country of a party to a marriage could be judged to be in breach of article 8 ECHR it was essential that there be“exceptional circumstances”.

The only matter put forward by the petitioner was the fact of his marriage, not any exceptional circumstances and therefore the outcome would inevitably be the refusal of the petitioner’s application.

However, the appeal judges ruled that the Advocate General’s reclaiming motion was“not well founded”.

Delivering the opinion of the court, Lord Eassie said:“First, as was pointed out by counsel for the petitioner, it is not correct to say that the only matter put forward by the petitioner is the mere fact of his marriage.

“As is evident from the representations made by the petitioner, removal to Pakistan would have material financial and housing consequences for the petitioner’s wife; and, importantly, the petitioner had pointed out that, given the security situation in Pakistan, there were evident concerns for the safety of his wife (who is, of course, a woman born and brought up in the United Kingdom of British parents).

“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.

“Secondly, we are not able to accept the proposition advanced by counsel for the Advocate General 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.”

Counsel sought to base this proposition on the final sentence of a passage within paragraph 39 of the judgment of the European Court of Human Rights in the 2007 case of Rodrigues da Silva, Hoogkamer v The Netherlands.

Lord Eassie said:“As is plain from a reading of the passage as a whole, whether an interference with private and family life may be justified by the State as proportionate to a legitimate aim depends upon an evaluation of the whole circumstances of the case.”

He added:“In these circumstances we consider that counsel for the petitioner was well founded in his submission that one simply could not say that anyone properly carrying out the proportionality assessment required by article 8 ECHR in this case would inevitably conclude that the interference with the private and family life of both the petitioner and his wife was proportionate.

“Accordingly, we consider that the reclaiming motion must be refused and that the court should adhere to the interlocutor of the Lord Ordinary.”

Andy Knox, a senior solicitor at Hamilton Burns WS (pictured right) criticised the UK government’s attempts to narrow the scope of the ECHR for the purposes of the Immigration Rules.

He said: “Time and time again the Secretary of State for the Home Department attempts to codify the parameters of Article 8 of the European Convention on Human Rights and shoehorn a vast body of ECHR jurisprudence into the restrictive parameters of the Immigration Rules.

“The policy mandarins at the Home Office appear to have convinced themselves that this is a perfectly legitimate task.

“What they do not appear able to grasp, is the fact that the ECHR is an international treaty that the UK government is bound to adhere to by virtue of section 6(1) of the Human Rights Act 1998.

“Courts and Tribunals throughout the UK are duty bound to consider the jurisprudence of the ECHR as an independent separate consideration.

“This careful judgement from the Inner House simply confirms that the Higher Courts are under no obligation to restrict their consideration of ECHR principles through a narrow lens carefully selected by the Secretary of State, designed primarily to achieve her own policy aims.”