Leave to remain: Spouses have rights too, Court of Session affirms
28 April 2015
Mirza v The Secretary of State for the Home Department  CSIH 28, 17 April 2015 – read judgment
On the same day as it handed down judgment in the Khan case (see Fraser Simpson’s post here), the Court of Session’s appeal chamber – the Inner House – provided further guidance on the relationship between the Immigration Rules and Article 8. Of particular interest in Mirza are the court’s comments on where the rights of a British spouse figure in the context of an application for leave to remain by his or her partner.
Mr Mirza was a citizen of Pakistan. He came to the UK on 2 April 2004 on a workholder visa which expired on 17 March 2005. He did not apply for an extension but remained in the country. In June 2004, he met his future wife – a British citizen. In May 2010, Mr Mirza applied to the Home Secretary for permission to marry, which was granted the following February. The marriage took place on 18 June 2011 and there was no suggestion that it was anything other than genuine.
On 22 January 2013 the Home Secretary refused Mr Mirza’s application for leave to remain. This was followed by a fresh decision in November 2013 in which leave was again refused. Mr Mirza accepted that, in terms of the Immigration Rules, he was not entitled to leave to remain. However, his argument was that the Home Secretary also had to consider separately whether a refusal of leave was compatible with Article 8 ECHR.
The Home Secretary’s reasoning
The Home Secretary argued that where an applicant failed to satisfy the Immigration Rules she was not required to give full consideration to the question of whether a refusal might breach Article 8. Following the approach set out by the Inner House in MS v Secretary of State for the Home Department (read that judgment here) all that was required was consideration of whether or not there was a “good arguable case” that Article 8 would be breached.
In the present case she decided that there was no evidence that the petitioner had a good arguable case that refusal of leave would lead to unjustifiably harsh consequences. Mr Mirza’s relationship with his wife had been formed when his immigration status was precarious. He had overstayed for five years before bringing himself to the attention of the Home Office. The relationship had not been protected by Article 8 until they started living together in 2010. As their family life had only lasted for three years, removal would not be an unjustifiably harsh outcome.
The Home Secretary took into account the genuine nature of the relationship, the fact that it had lasted for six years (in one form or another), and that the petitioner’s wife would have to leave her friends, family, and job in order to continue their relationship in Pakistan. However, these factors did not outweigh the need to maintain effective immigration control or otherwise give rise to a good arguable case that refusal would produce an unjustifiably harsh outcome in breach of Article 8.
The Outer House Judgment
Following the approach in MS, the Outer House (the first instance court) found that the Home Secretary had adequately addressed the question of whether there was a “good arguable case” that refusal of leave would result in unjustifiably harsh consequences. There was no need to conduct a full separate analysis under Article 8, that having been dealt with by the question of whether there was a good arguable case for allowing Mr Mirza’s application outside of the Immigration Rules. The Home Secretary made no error of law.
The Inner House Judgment
The Inner House allowed Mr Mirza’s appeal. There were two lines of reasoning in its judgment.
The first focused on the rights of Mr Mirza’s wife. The court observed that the right to marry and found a family was a right protected by Article 12. The corollary of that right was that in an application for leave to remain in (or enter) the UK as a spouse of someone settled here, consideration had to be given to the rights of the spouse. As a British citizen, Mr Mirza’s wife could not be required to leave the UK. This did not necessitate an automatic grant of leave to remain to Mr Mirza, but the court considered (at para 19) that the wife’s right of residence here “weighed heavily in the assessment of the proportionality of the interference with the couple’s human rights to cohabit together as spouses.” The Home Secretary could not simply assert that any incompatibly with Article 8 could be avoided by the couple moving to another country. The Home Secretary had proceeded on the basis that Mr Mirza’s wife should move with him to Pakistan. This ignored the fact that she was a British citizen. The court concluded at paragraph 20 that the Home Secretary had failed to consider that the refusal of leave may cause the indefinite separation of the married couple, or whether their separation was a proportionate interference with “their fundamental right to cohabit as a married couple.” It was an error of law to ignore Mr Mirza’s wife’s rights as a British citizen.
Secondly, the court was of the view that the Home Secretary was wrong to consider whether refusal of leave would lead to unjustifiably harsh consequences. The proper question was whether the interference with private and family life was proportionate to some legitimate objective. The four-stage test was that set out by Lord Reed in Bank Mellat v HM Treasury  UKSC 39. A proper proportionality assessment involved a case-specific identification of the objective being pursued and an examination of the degree and nature of the interference.
The judgment makes clear that when considering an application for leave to remain in the UK from someone married to a British citizen, the Home Secretary must attach considerable weight to the rights of the British spouse. These had not figured in the analysis of the court below. In the post-MS context, the judgment also reiterates the need to fully consider an application for leave to remain against Article 8.
by Thomas Raine