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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
    1. R v A [2001] UKHL 25; [2002] 1 AC 45; [2001] 3 All ER 1; [2001] 2 WLR 1546
    2. Re S (Minors) (Care order: implementation of care plan) [2002] UKHL 10: [2002] 2 All ER 192
    3. Bellinger v Bellinger [2003] UKHL 21; [2003] 2 AC 467; [2003] 2 All ER 593
    4. Ghaidan v Mendoza [2004] UKHL 30; [2004] 2 AC 557; [2004] 3 All ER 411
    5. Aston Cantlow...Parochial Church Council v Wallbank and another [2003] UKHL 37, [2003] 3 All ER 1213
    6. R (on the application of Beer) v Hampshire Farmers Market Ltd [2004] 1 WLR 233
    7. Wainwright and another v Home Office [2003] UKHL 53, [2004] 2 AC 406, [2003] 4 All ER 969
    8. YL v Birmingham City Council and others [2007] UKHL 27, [2008] 1 AC 95
    9. R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100; [2006] 2 WLR 719
    10. Belfast City Council v Miss Behavin Ltd [2007] UKHL 19, [2007] 1 WLR 1420
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Ghaidan v Mendoza [2004] UKHL 30; [2004] 2 AC 557; [2004] 3 All ER 411

LORD NICHOLLS OF BIRKENHEAD:....

SECTION 3 OF THE 1998 ACT


[25] I turn next to the question whether s 3 of the 1998 Act requires the court to depart from the interpretation of para 2 enunciated in Fitzpatrick's case.


[26] Section 3 is a key section in the 1998 Act. It is one of the primary means by which convention rights are brought into the law of this country. Parliament has decreed that all legislation, existing and future, shall be interpreted in a particular way. All legislation must be read and given effect to in a way which is compatible with the convention rights 'so far as it is possible to do so'. This is the intention of Parliament, expressed in s 3, and the courts must give effect to this intention.


[27] Unfortunately, in making this provision for the interpretation of legislation, s 3 itself is not free from ambiguity. Section 3 is open to more than one interpretation. The difficulty lies in the word 'possible'. Section 3(1), read in conjunction with s 3(2) and s 4, makes one matter clear: Parliament expressly envisaged that not all legislation would be capable of being made convention-compliant by application of s 3. Sometimes it would be possible, sometimes not. What is not clear is the test to be applied in separating the sheep from the goats. What is the standard, or the criterion, by which 'possibility' is to be judged? A comprehensive answer to this question is proving elusive. The courts, including your Lordships' House, are still cautiously feeling their way forward as experience in the application of s 3 gradually accumulates.


[28] One tenable interpretation of the word 'possible' would be that s 3 is confined to requiring courts to resolve ambiguities. Where the words under consideration fairly admit of more than one meaning the convention-compliant meaning is to prevail. Words should be given the meaning which best accords with the convention rights.


[29] This interpretation of s 3 would give the section a comparatively narrow scope. This is not the view which has prevailed. It is now generally accepted that the application of s 3 does not depend upon the presence of ambiguity in the legislation being interpreted. Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, s 3 may none the less require the legislation to be given a different meaning. The decision of your Lordships' House in R v A [2001] UKHL 25, [2001] 3 All ER 1, [2002] 1 AC 45 is an instance of this. The House read words into s 41 of the Youth Justice and Criminal Evidence Act 1999 so as to make that section compliant with an accused's right to a fair trial under art 6. The House did so even though the statutory language was not ambiguous.


[30] From this it follows that the interpretative obligation decreed by s 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation. The question of difficulty is how far, and in what circumstances, s 3 requires a court to depart from the intention of the enacting Parliament. The answer to this question depends upon the intention reasonably to be attributed to Parliament in enacting s 3.


[31] On this the first point to be considered is how far, when enacting s 3, Parliament intended that the actual language of a statute, as distinct from the concept expressed in that language, should be determinative. Since s 3 relates to the 'interpretation' of legislation, it is natural to focus attention initially on the language used in the legislative provision being considered. But once it is accepted that s 3 may require legislation to bear a meaning which departs from the unambiguous meaning the legislation would otherwise bear, it becomes impossible to suppose Parliament intended that the operation of s 3 should depend critically upon the particular form of words adopted by the parliamentary draftsman in the statutory provision under consideration. That would make the application of s 3 something of a semantic lottery. If the draftsman chose to express the concept being enacted in one form of words, s 3 would be available to achieve convention-compliance. If he chose a different form of words, s 3 would be impotent.


[32] From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a convention-compliant meaning does not of itself make a convention-compliant interpretation under s 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But s 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it convention-compliant. In other words, the intention of Parliament in enacting s 3 was that, to an extent bounded only by what is 'possible', a court can modify the meaning, and hence the effect, of primary and secondary legislation.


[33] Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary s 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not convention-compliant. The meaning imported by application of s 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, 'go with the grain of the legislation'. Nor can Parliament have intended that s 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision convention-compliant, and the choice may involve issues calling for legislative deliberation.


[34] Both these features were present in Re S (children: care plan), Re W (children: care plan) [2002] UKHL 10, [2002] 2 All ER 192, [2002] 2 AC 291. There the proposed 'starring system' was inconsistent in an important respect with the scheme of the Children Act 1989, and the proposed system had far-reaching practical ramifications for local authorities. Again, in R (on the application of Anderson) v Secretary of State for the Home Dept [2002] UKHL 46, [2002] 4 All ER 1089, [2003] 1 AC 837 s 29 of the Crime (Sentences) Act 1997 could not be read in a convention-compliant way without giving the section a meaning inconsistent with an important feature expressed clearly in the legislation. In Bellinger v Bellinger [2003] UKHL 21, [2003] 2 All ER 593, [2003] 2 AC 467 recognition of Mrs Bellinger as female for the purposes of s 11(c) of the Matrimonial Causes Act 1973 would have had exceedingly wide ramifications, raising issues ill-suited for determination by the courts or court procedures.


[35] In some cases difficult problems may arise. No difficulty arises in the present case. Paragraph 2 of Sch 1 to the 1977 Act is unambiguous. But the social policy underlying the 1988 extension of security of tenure under para 2 to the survivor of couples living together as husband and wife is equally applicable to the survivor of homosexual couples living together in a close and stable relationship. In this circumstance I see no reason to doubt that application of s 3 to para 2 has the effect that para 2 should be read and given effect to as though the survivor of such a homosexual couple were the surviving spouse of the original tenant. Reading para 2 in this way would have the result that cohabiting heterosexual couples and cohabiting heterosexual couples would be treated alike for the purposes of succession as a statutory tenant. This would eliminate the discriminatory effect of para 2 and would do so consistently with the social policy underlying para 2. The precise form of words read in for this purpose is of no significance. It is their substantive effect which matters.


[36] For these reasons I agree with the decision of the Court of Appeal. I would dismiss this appeal.

LORD STEYN:

[37] My Lords, in my view the Court of Appeal ([2002] EWCA Civ 1533, [2002] 4 All ER 1162, [2003] Ch 380) came to the correct conclusion. I agree with the conclusions and reasons of my noble and learned friends Lord Nicholls of Birkenhead, Lord Rodger of Earlsferry and Baroness Hale of Richmond. In the light of those opinions, I will not comment on the case generally.


[38] I confine my remarks to the question whether it is possible under s 3(1) of the Human Rights Act 1998 to read and give effect to para 2(2) of Sch 1 to the Rent Act 1977 in a way which is compatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the 1998 Act). In my view the interpretation adopted by the Court of Appeal under s 3(1) was a classic illustration of the permissible use of this provision. But it became clear during oral argument, and from a subsequent study of the case law and academic discussion on the correct interpretation of s 3(1), that the role of that provision in the remedial scheme of the 1998 Act is not always correctly understood. I would therefore wish to examine the position in a general way.


[39] I attach an appendix to this opinion which lists cases where a breach of a convention right was found established, and the courts proceeded to consider whether to exercise their interpretative power under s 3 or to make a declaration of incompatibility under s 4. For the first and second lists (A and B) I am indebted to the Constitutional Law Division of the Department for Constitutional Affairs but law report references and other information have been added. The third list (C) has been prepared by Laura Johnson, my judicial assistant, under my direction. It will be noted that in ten cases the courts used their interpretative power under s 3 and in 15 cases the courts made declarations of incompatibility under s 4. In five cases in the second group the declarations of incompatibility were subsequently reversed on appeal: in four of those cases it was held that no breach was established and in the fifth case (R (on the application of Hooper) v Secretary of State for Work and Pensions [2003] EWCA Civ 813, [2003] 3 All ER 673, [2003] 1 WLR 2623) the exact basis for overturning the declaration of incompatibility may be a matter of debate. Given that under the 1998 Act the use of the interpretative power under s 3 is the principal remedial measure, and that the making of a declaration of incompatibility is a measure of last resort, these statistics by themselves raise a question about the proper implementation of the 1998 Act. A study of the case law reinforces the need to pose the question whether the law has taken a wrong turning.


[40] My impression is that two factors are contributing to a misunderstanding of the remedial scheme of the 1998 Act. First, there is the constant refrain that a judicial reading down, or reading in, under s 3 would flout the will of Parliament as expressed in the statute under examination. This question cannot sensibly be considered without giving full weight to the countervailing will of Parliament as expressed in the 1998 Act.


[41] The second factor may be an excessive concentration on linguistic features of the particular statute. Nowhere in our legal system is a literalistic approach more inappropriate than when considering whether a breach of a convention right may be removed by interpretation under s 3. Section 3 requires a broad approach concentrating, amongst other things, in a purposive way on the importance of the fundamental right involved.


[42] In enacting the 1998 Act Parliament legislated 'to bring rights home' from the European Court of Human Rights to be determined in the courts of the United Kingdom. That is what the White Paper said: see Rights Brought Home: The Human Rights Bill (Cm 3782) (October 1997) para 2.7. That is what Parliament was told. The mischief to be addressed was the fact that convention rights as set out in the European Convention, which Britain ratified in 1951, could not be vindicated in our courts. Critical to this purpose was the enactment of effective remedial provisions.

[43] The provisions adopted read as follows:


'3. Interpretation of legislation.-(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2) This section-(a) applies to primary legislation and subordinate legislation.

whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect the continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.


4. Declaration of incompatibility.-(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.


(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility ...'


If Parliament disagrees with an interpretation by the courts under s 3(1), it is free to override it by amending the legislation and expressly reinstating the incompatibility.


[44] It is necessary to state what s 3(1), and in particular the word 'possible', does not mean. First, s 3(1) applies even if there is no ambiguity in the language in the sense of it being capable of bearing two possible meanings. The word 'possible' in s 3(1) is used in a different and much stronger sense. Secondly, s 3(1) imposes a stronger and more radical obligation than to adopt a purposive interpretation in the light of the convention. Thirdly, the draftsman of the 1998 Act had before him the model of the New Zealand Bill of Rights Act which imposes a requirement that the interpretation to be adopted must be reasonable. Parliament specifically rejected the legislative model of requiring a reasonable interpretation.


[45] Instead the draftsman had resort to the analogy of the obligation under the EEC Treaty on national courts, as far as possible, to interpret national legislation in the light of the wording and purpose of directives. In Marleasing SA v La Comercial Internacional de Alimentacion SA Case C-106/89 [1990] ECR I-4135 at 4159 (para 8) the Court of Justice of the European Communities defined this obligation as follows:


'It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.'


Given the undoubted strength of this interpretative obligation under EEC law, this is a significant signpost to the meaning of s 3(1) in the 1998 Act.


[46] Parliament had before it the mischief and objective sought to be addressed, viz the need 'to bring rights home'. The linch-pin of the legislative scheme to achieve this purpose was s 3(1). Rights could only be effectively brought home if s 3(1) was the prime remedial measure, and s 4 a measure of last resort. How the system modelled on the EEC interpretative obligation would work was graphically illustrated for Parliament during the progress of the Bill through both Houses. The Lord Chancellor observed that 'in 99% of the cases that will arise, there will be no need for judicial declarations of incompatibility' and the Home Secretary said 'We expect that, in almost all cases, the courts will be able to interpret the legislation compatibly with the Convention': see 585 HL Official Report (5th series) col 840 (5 February 1998) and 306 HC Official Report (6th series) col 778 (16 February 1998). It was envisaged that the duty of the court would be to strive to find (if possible) a meaning which would best accord with convention rights. This is the remedial scheme which Parliament adopted.


[47] Three decisions of the House can be cited to illustrate the strength of the interpretative obligation under s 3(1). The first is R v A [2001] UKHL 25, [2001] 3 All ER 1, [2002] 1 AC 45 which concerned the so-called rape shield legislation. The problem was the blanket exclusion of prior sexual history between the complainant and an accused in s 41(1) of the Youth Justice and Criminal Evidence Act 1999, subject to narrow specific categories in the remainder of s 41. In subsequent decisions, and in academic literature, there has been discussion about differences of emphasis in the various opinions in R v A. What has been largely overlooked is the unanimous conclusion of the House. The House unanimously agreed on an interpretation under s 3 which would ensure that s 41 would be compatible with the convention. The formulation was by agreement set out in that case as follows (at [46]):


'The effect of the decision today is that under s 41(3)(c) of the 1999 Act, construed where necessary by applying the interpretative obligation under s 3 of the 1998 Act, and due regard always being paid to the importance of seeking to protect the complainant from indignity and from humiliating questions, the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under art 6 of the convention. If this test is satisfied the evidence should not be excluded.'


This formulation was endorsed by Lord Slynn of Hadley (at [13]) in identical wording. The other Law Lords sitting in the case expressly approved the formulation set out at [46] of my opinion: see [2001] 3 All ER 1 at [110], [140], [163] per Lord Hope of Craighead, Lord Clyde, and Lord Hutton respectively. In so ruling the House rejected linguistic arguments in favour of a broader approach. In the subsequent decisions of the House in Re S (children: care plan); Re W (children: care plan) [2002] UKHL 10, [2002] 2 All ER 192, [2002] 2 AC 291 and Bellinger v Bellinger [2003] UKHL 21, [2003] 2 All ER 593, [2003] 2 AC 467 which touched on the remedial structure of the 1998 Act, the decision of the House in the case of R v A was not questioned. And in the present case nobody suggested that R v A involved a heterodox exercise of the power under s 3.


[48] The second and third decisions of the House are Pickstone v Freemans plc [1988] 2 All ER 803, [1989] AC 66 and Litster v Forth Dry Dock and Engineering Co Ltd [1989] 1 All ER 1134, [1990] 1 AC 546 which involve the interpretative obligation under EEC law. Pickstone's case concerned s 1(2) of the Equal Pay Act 1970 (as amended by s 8 of the Sex Discrimination Act 1975 and reg 2 of the Equal Pay (Amendment) Regulations 1983, SI 1983/1794), which implied into any contract without an equality clause one that modifies any term in a woman's contract which is less favourable than a term of a similar kind in the contract of a man:


'(a) where the woman is employed on like work with a man in the same employment ... (b) where the woman is employed on work rated as equivalent with that of a man in the same employment (c) where a woman is employed on work which, not being work in relation to which paragraph (a) or (b) above applies, is, in terms of the demands made on her (for instance under such headings as effort, skill and decision), of equal value to that of a man in the same employment ...'


Lord Templeman observed ([1988] 2 All ER 803 at 813, [1989] AC 66 at 120-121):


'In my opinion there must be implied in para (c) after the word "applies" the words "as between the woman and the man with whom she claims equality". This construction is consistent with Community law. The employers' construction is inconsistent with Community law and creates a permitted form of discrimination without rhyme or reason.'


That was the ratio decidendi of the decision. Litster's case concerned regulations intended to implement an EC directive, the purpose of which was to protect the workers in an undertaking when its ownership was transferred. However, the regulations only protected those who were employed 'immediately before' the transfer. Having inquired into the purpose of the directive, the House of Lords interpreted the regulations by reading in additional words to protect workers not only if they were employed 'immediately before' the time of transfer, but also when they would have been so employed if they had not been unfairly dismissed by reason of the transfer: see [1989] 1 All ER 1134 at 1136, [1990] 1 AC 546 at 554 per Lord Keith of Kinkel. In both cases the House eschewed linguistic arguments in favour of a broad approach. Picksone's case and Litster's case involved national legislation which implemented EC directives. The Marleasing case extended the scope of the interpretative obligation to unimplemented directives. Pickstone's case and Litster's case reinforce the approach to s 3(1) which prevailed in the House in the rape shield case.


[49] A study of the case law listed in the Appendix to this judgment reveals that there has sometimes been a tendency to approach the interpretative task under s 3(1) in too literal and technical a way. In practice there has been too much emphasis on linguistic features. If the core remedial purpose of s 3(1) is not to be undermined a broader approach is required. That is, of course, not to gainsay the obvious proposition that inherent in the use of the word 'possible' in s 3(1) is the idea that there is a Rubicon which courts may not cross. If it is not possible, within the meaning of s 3, to read or give effect to legislation in a way which is compatible with convention rights, the only alternative is to exercise, where appropriate, the power to make a declaration of incompatibility. Usually, such cases should not be too difficult to identify. An obvious example is R (on the application of Anderson) v Secretary of State for the Home Dept [2002] UKHL 46, [2002] 4 All ER 1089, [2003] 1 AC 837. The House held that the Home Secretary was not competent under art 6 of the convention to decide on the tariff to be served by mandatory life sentence prisoners. The House found a s 3(1) interpretation not 'possible' and made a declaration under s 4. Interpretation could not provide a substitute scheme. Bellinger's case is another obvious example. As Lord Rodger of Earlsferry observed 'in relation to the validity of marriage, Parliament regards gender as fixed and immutable': see [2003] 2 All ER 593 at [83], [2003] 2 AC 467 at [83]. Section 3(1) of the 1998 Act could not be used.


[50] Having had the opportunity to reconsider the matter in some depth, I am not disposed to try to formulate precise rules about where s 3 may not be used. Like the proverbial elephant such a case ought generally to be easily identifiable. What is necessary, however, is to emphasise that interpretation under s 3(1) is the prime remedial remedy and that resort to s 4 must always be an exceptional course. In practical effect there is a strong rebuttable presumption in favour of an interpretation consistent with convention rights. Perhaps the opinions delivered in the House today will serve to ensure a balanced approach along such lines.


[51] I now return to the circumstances of the case before the House. Applying s 3 the Court of Appeal interpreted 'as his or her wife or husband' in the statute to mean 'as if they were his wife or husband'. While there has been some controversy about aspects of the reasoning of the Court of Appeal, I would endorse the reasoning of the Court of Appeal on the use of s 3(1) in this case. It was well within the power under this provision.

R v Horncastle [2009] UKSC 14, [2010] 2 AC 373

LORD PHILLIPS OF WORTH MATRAVERS PSC

10 Mr Tim Owen QC, for Mr Horncastle and Mr Blackmore, submitted that we should treat the judgment of the Chamber in Al-Khawaja as determinative of the success of these appeals. He submitted that this was the appropriate response to the requirement of section 2(1) of the Human Rights Act 1998 *432 that requires a court to "take into account" any judgment of the European Court of Human Rights in determining any question to which such judgment is relevant. He submitted that the decision of the House of Lords in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 exemplified the correct approach to a decision of the European court. In that case the committee held itself bound to apply a clear statement of principle by the Grand Chamber in respect of the precise issue that was before the committee. Mr Owen submitted that we should adopt precisely the same approach to the decision of the Chamber in Al-Khawaja .

11 I do not accept that submission. The requirement to "take into account" the Strasbourg jurisprudence will normally result in the domestic court applying principles that are clearly established by the Strasbourg court. There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between the domestic court and the Strasbourg court. This is such a case.

12 In recognition of the importance of these appeals for English criminal procedure the Criminal Division of the Court of Appeal sat five strong in a composition that included the Vice-President and other senior judges with extensive experience of the criminal process. The court was thus particularly well qualified to consider the questions at the heart of these appeals. These questions are: (i) whether the regime enacted by Parliament in relation to the admission of the evidence of an absent witness at a criminal trial will result in an unfair trial and, if not, (2) whether the Strasbourg jurisprudence none the less requires the court to apply that regime in a manner contrary to the intention of Parliament.

13 The Court of Appeal carried out an extensive survey of both domestic and Strasbourg jurisprudence. They concluded that the statutory regime produced a fair trial and that the Strasbourg jurisprudence did not require the court to apply that regime in a manner contrary to Parliament's intention. I endorse those conclusions and almost all the reasoning that led to them. I commend the Court of Appeal's judgment and shall, in places, borrow from it. This judgment should be read as complementary to that of the Court of Appeal, not as a substitute for it.

.....

107 I concur in these conclusions reached by the Court of Appeal and the reasons for those conclusions so clearly and compellingly expressed. The jurisprudence of the Strasbourg court in relation to article 6(3)(d) has developed largely in cases relating to civil law rather than common law jurisdictions and this is particularly true of the sole or decisive rule. In the course of the hearing in Al-Khawaja , Sir Nicolas Bratza observed that both parties had accepted the sole or decisive test which appears in Lucà and other cases as an accurate summary of the court's case law. He asked whether there was any authority of the court which gave any scope for counterbalancing factors in a sole or decisive case. Mr Perry for the Government conceded that he was not aware of any direct authority on the point. The court then applied the sole or decisive rule in reliance on the pre-existing case law. But as I have shown that case law appears to have developed without full consideration of the safeguards against an unfair trial that exist under the common law procedure. Nor, I suspect, can the Strasbourg court have given detailed consideration to the English law of admissibility of evidence, and the changes made to that law, after *459 consideration by the Law Commission, intended to ensure that English law complies with the requirements of article 6(1) (3)(d) .

___________________________________________________________________________

Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104

LORD NEUBERGER MR

24 The issues identified in the argument for Mr Pinnock are by no means novel. It is therefore necessary for the court to look briefly at the decisions of the House of Lords which deal with them and then, in a little more detail, at the relevant decisions of the European court.

The House of Lords cases

25 In three relatively recent cases the House of Lords held that it was not open to a residential occupier, against whom possession was being sought by a local authority, to raise a proportionality argument under article 8 . In other words, the House rejected points (e) and (f) in the outline of the argument for Mr Pinnock in para 23 above. Point (g) therefore did not arise. For this reason, the Court of Appeal and Judge Holman were bound to come to the conclusions which we have summarised in paras 19 and 20 above.

26 The three decisions of the House of Lords are: Harrow London Borough Council v Qazi [2004] 1 AC 983 , Kay v Lambeth London Borough Council [2006] 2 AC 465 , and Doherty v Birmingham City Council (Secretary of State for Communities and Local Government intervening) [2009] AC 367 . In each of them the defendants were residential occupiers of properties owned by a local authority but, for one reason or another, they were not secure tenants and, having had any right to continue to occupy the respective properties brought to an end in accordance with domestic law, they were trespassers. So, in accordance with domestic law, the defendants could raise no defence to the local authority's claim for possession. In each case, however, the defendants contended that they should be able to rely on the argument that, even though they were trespassers with no defence to a claim for possession under domestic law, they had the right to have the proportionality of the loss of their home taken into account by virtue of their article 8 Convention rights.....

27 In Harrow London Borough Council v Qazi [2004] 1 AC 983 and in Kay v Lambeth London Borough Council [2006] 2 AC 465 , albeit in each case by a bare majority, the House decided that "a defence which does not challenge the law under which the possession order is sought as being incompatible with article 8 but is based only on the occupier's personal circumstances should be struck out": Kay v Lambeth London Borough Council [2006] 2 AC 465 , 516-517, para 110, per Lord Hope of Craighead, with whom Lord Scott of Foscote, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood agreed. This observation applied to claims against trespassers, just as much as to claims against current or former tenants or licensees. At the end of the same paragraph Lord Hope explained that, following Wandsworth London Borough Council v Winder [1985] AC 461 , in principle, it would be open to a defendant "to challenge the decision of a local authority to recover possession as an improper exercise of its powers at common law" on the traditional judicial review ground "that it was a decision that no reasonable person would consider justifiable".

28 In Doherty v Birmingham City Council [2009] AC 367 the law as stated in para 110 of Kay v Lambeth London Borough Council was substantially reaffirmed. On the article 8 point Lord Mance, however, dissented, at para 132, and Lord Walker of Gestingthorpe displayed less than whole-hearted enthusiasm, at paras 107-108. The law on the judicial review point was affirmed by Lord Hope, Lord Walker, and Lord Mance, at paras 56, 123 and 157 respectively. Nevertheless, in the light of the developments in the Strasbourg jurisprudence which we describe below, the House developed the law by acknowledging that the traditional approach to judicial review would have to be expanded, particularly to permit the court to make its own assessment of the relevant facts: [2009] AC 367 , especially at para 68, per Lord Scott, and at para 138, per Lord Mance.

29 In both Harrow London Borough Council v Qazi [2004] 1 AC 983 and Kay v Lambeth London Borough Council [2006] 2 AC 465 , Lord *120 Bingham of Cornhill (dissenting along with Lord Steyn in the former case, and with Lord Nicholls of Birkenhead and Lord Walker in the latter) accepted that it should be open, as a matter of principle, to a residential occupier, against whom a local authority is seeking possession, to raise an article 8 proportionality argument based on the facts of the particular case. However, in Harrow London Borough Council v Qazi [2004] 1 AC 983 , para 25 Lord Bingham said that, if this was right, "the occasions on which a court would be justified in declining to make a possession order would be very highly exceptional". He effectively repeated this view in Kay v Lambeth London Borough Council [2006] 2 AC 465 , para 29, where he suggested that only in "rare and exceptional cases" would an article 8 proportionality challenge "not be futile".

The Strasbourg jurisprudence

30 Mr Pinnock contends that, exceptionally, it is appropriate for this nine-judge court to depart from the majority view in these cases because there is now a consistent series of decisions of the European court which unambiguously supports the minority view in the earlier House of Lords decisions, and there is no good reason not to follow that series of decisions. We must therefore examine them.

31 In Connors v United Kingdom (2004) 40 EHRR 189 , gipsies had initially been permitted to locate their caravan on a piece of land owned by a local authority but their right of occupation was brought to an end because the local authority considered that they were committing a nuisance. The local authority then successfully brought summary proceedings for possession on the ground that they were trespassers and had no right to remain in occupation of the land. Before the First Section of the European court the gipsies successfully contended that the proceedings violated their rights under article 8 .

32 Although the local authority's decision to evict the gipsies was susceptible to judicial review, the European court considered, at para 92, that this procedure was insufficient to satisfy the requirements of article 8 because "the local authority was not required to establish any substantive justification for evicting [the gipsies], and on this point judicial review could not provide any opportunity for an examination of the facts in dispute between the parties."

33 In a passage, at paras 81-83, which has often been quoted verbatim in subsequent decisions, the European court said:

"81. An interference will be considered 'necessary in a democratic society' for a legitimate aim if it answers a 'pressing social need' and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the court for conformity with the requirements of the Convention.

"82. In this regard, a margin of appreciation must, inevitably, be left to the national authorities ... This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions ... Where general social and economic policy considerations have arisen in the context of article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant.

"83. The procedural safeguards available to the individual will be especially material in determining whether the respondent state has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by article 8."

34 In Blecic v Croatia (2004) 41 EHRR 185 , the First Section of the European court held that there had been no violation of the applicant's article 8 rights in circumstances where her protected tenancy of her home had been terminated by the Croatian court on the ground that she had ceased to occupy it for ten months during 1991-1992. Her case was that it had been her home since 1953, and that her absence had been attributable to armed conflict in Dalmatia, but it was held that it had been her "personal decision ... to leave". The European court said, at para 65:

"State intervention in socio-economic matters such as housing is often necessary in securing social justice and public benefit. In this area, the margin of appreciation available to the state in implementing social and economic policies is necessarily a wide one. The domestic authorities' judgment as to what is necessary to achieve the objectives of those policies should be respected unless that judgment is manifestly without reasonable foundation. Although this principle was originally set forth in the context of complaints under article 1 of Protocol No 1 ... the state enjoys an equally wide margin of appreciation as regards respect for the home in circumstances such as those prevailing in the present case, in the context of article 8. Thus, the court will accept the judgment of the domestic authorities as to what is necessary in a democratic society unless that judgment is manifestly without reasonable foundation, that is, unless the measure employed is manifestly disproportionate to the legitimate aim pursued."

The case then went to the Grand Chamber, which held that, ratione temporis, the court had had no jurisdiction to hear it. The Grand Chamber said nothing, however, to cast doubt on what the First Section had said in the passage which we have quoted: (2005) 43 EHRR 1038 .

35 In McCann v United Kingdom (2008) 47 EHRR 913 the county court made an order for possession against a man who occupied his home as a joint tenant with his estranged wife, on the ground that the tenancy had been determined by a notice to quit which she had served at the request of the local authority landlord and without reference to her husband. The European court (Fourth Section) rejected the contention that the reasoning in Connors v United Kingdom 40 EHRR 189 , paras 81-83, was

"confined only to cases involving the eviction of gipsies or cases where the applicant sought to challenge the law itself rather than its application in his particular case": 47 EHRR 913, para 50.

The court continued:

"The loss of one's home is the most extreme form of interference with the right for respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under [article 8], notwithstanding that, under domestic law, his right of occupation has come to an end."

36 At para 54, the European court considered and rejected the contention that "the grant of the right to the occupier to raise an issue under article 8 would have serious consequences for the functioning of the system or for the domestic law of landlord and tenant", citing and confirming the view of Lord Bingham in Kay v Lambeth London Borough Council [2006] 2 AC 465 , para 29 to the effect that "only in very exceptional cases" could

"an applicant ... succeed in raising an arguable case which would require a court to examine the issue". The court also said that "in the great majority of cases, an order for possession could continue to be made in summary proceedings."

37 In Cosic v Croatia (2009) 52 EHRR 1098 the Croatian state had obtained an order evicting the applicant from her home, which she had ceased to have any right to occupy as a matter of domestic law. After quoting and considering Connors v United Kingdom 40 EHRR 189 , paras 81-83, the European court (First Section) pointed out, at para 21, that the national courts had based their decision "exclusively on the [domestic] applicable laws" and had

"thus confined themselves to finding that occupation by the appellant was without legal basis [and] made no further analysis as to the proportionality of the measure to be applied against the applicant"

The court immediately went on to say that the Convention required that the eviction order was "proportionate ... to the legitimate aim pursued", and that "no legal provision of domestic law should be interpreted and applied in a manner incompatible with Croatia's obligations under the Convention".

38 In paras 22 and 23, the European court concluded that article 8 had been violated since "the applicant [had not been] afforded [the] possibility" of having

"the proportionality and reasonableness of the measure [viz, an order of court evicting her from her home] determined by an independent tribunal in the light of the relevant principles under article 8"

39 In Zehentner v Austria (2009) 52 EHRR 739 the European court (First Section) had to consider the effect of article 8 in the context of an order evicting the applicant from her home following a "judicial sale", after the making of the Austrian equivalent of a charging order. The procedural circumstances were rather unusual, but the court held, at para 54, that "the judicial sale and the applicant's eviction are to be seen as a whole." Importantly, for present purposes, at paras 52-59, the court reaffirmed the approach in Connors v United Kingdom 40 EHRR 189 and McCann v United Kingdom 47 EHRR 913 . In particular, the court also stated, at para 59, that a person at risk of eviction from their home should "be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under article 8 ."

....

41 Finally, there is Kay v United Kingdom [2011] HLR 13 in which the European court (Fourth Section) gave its judgment after the conclusion of the oral argument in this case. We then received written submissions on the decision from the parties. In that case the application was made to the Strasbourg court by the unsuccessful appellants in Kay v Lambeth London Borough Council [2006] 2 AC 465 . They had no security of tenure in their homes and their defences to claims for possession brought by the local authority-based on the contention that it was disproportionate to deprive them of their homes in the light of article 8 -had been struck out. After carefully considering the various views expressed in the House of Lords in Kay v Lambeth London Borough Council [2006] 2 AC 465 and Doherty v Birmingham City Council [2009] AC 367, and the relevant decisions of the Court of Appeal , the European court stated, at paras 65-68, that the principles laid down in Connors v United Kingdom 40 EHRR 189 and McCann v United Kingdom 47 EHRR 913 applied .

42 The European court then stated, at para 73:

"The court welcomes the increasing tendency of the domestic courts to develop and expand conventional judicial review grounds in the light of article 8 . A number of their Lordships in Doherty alluded to the possibility for challenges on conventional judicial review grounds in cases such as the applicants' to encompass more than just traditional Wednesbury grounds (see Lord Hope, at para 55; Lord Scott, at paras 70 and 84 to 85; and Lord Mance, at paras 133 to 135 of the House of Lords judgment). However, notwithstanding these developments, the court considers that at the time that the applicants' cases were considered by the domestic courts, there was an important distinction between the majority and minority approaches in the House of Lords, as demonstrated by the opinions in Kay itself. In McCann , the court agreed with the minority approach [in Kay v Lambeth London Borough Council [2006] 2 AC 465 ] although it noted that, in the great majority of cases, an order for possession could continue to be made in summary proceedings and that it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue."

43 Accordingly, in the next paragraph of its judgment, the European court concluded:

"In conclusion, the Kay applicants' challenge to the decision to strike out their article 8 defences failed because it was not possible at that time to challenge the decision of a local authority to seek a possession order on the basis of the alleged disproportionality of that decision in light of personal circumstances. Accordingly, for the reasons given in McCann , the court concludes that the decision by the county court to strike out the applicant's article 8 defences meant that the procedural safeguards required by article 8 for the assessment of the proportionality of the interference were not observed. As a result, the applicants were dispossessed of their homes without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that there has been a violation of article 8 of the Convention in the instant case."

44 The European court was therefore saying that, in so far as the law had subsequently been developed in Doherty v Birmingham City Council [2009] AC 367 , this development could not be relied on by the United Kingdom in Kay v United Kingdom [2011] HLR 13 .

Conclusion on the first issue

45 From these cases, it is clear that the following propositions are now well established in the jurisprudence of the European court: (a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8 , even if his right of occupation under domestic law has come to an end: McCann v United Kingdom 47 EHRR 913 , para 50; Cosic v Croatia 52 EHRR 1098 , para 22; Zehentner v Austria 52 EHRR 739 , para 59; Paulic v Croatia given 22 October 2009 , para 43; and Kay v United Kingdom [2011] HLR 13 , paras 73-74. (b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i e, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues: Connors v United Kingdom 40 EHRR 189 , para 92; McCann v United Kingdom 47 EHRR 913 , para 53; Kay v United Kingdom [2011] HLR 13 , paras 72-73. (c) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with: Zehentner v Austria 52 EHRR 739 , para 54. (d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains-for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied. Although it cannot be described as a point of principle, it seems that the European court has also franked the view that it will only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the applicant has no right under domestic law to *125 remain: McCann v United Kingdom 47 EHRR 913 , para 54; Kay v United Kingdom , para 73.

46 We have referred in a little detail to the European court jurisprudence. This is because it is important for the court to emphasise what is now the unambiguous and consistent approach of the European court, when we have to consider whether it is appropriate for this court to depart from the three decisions of the House of Lords.

47 As we have already explained, the House of Lords decisions have to be seen against the backdrop of the evolving Strasbourg jurisprudence. So, for instance, the first of the House of Lords decisions, Harrow London Borough Council v Qazi [2004] 1 AC 983 , came before any of the European court judgments. Kay v Lambeth London Borough Council [2006] 2 AC 465 was decided after Connors v United Kingdom 40 EHRR 189 . But, viewed without the benefit of subsequent European court jurisprudence, the reasoning in Connors v United Kingdom could have been interpreted as applying only to gipsies. Indeed one point made on the applicant's behalf was that gipsies occupying sites owned by local authorities were not given any rights of security of tenure, unlike occupiers of flats or houses owned by local authorities, who were secure tenants. Although McCann v United Kingdom 47 EHRR 913 had been decided by the time of Doherty v Birmingham City Council [2009] AC 367 , it would have been inappropriate for a five-judge court, at least in the particular circumstances, to depart substantially from the decision of the seven-judge court in Kay v Lambeth London Borough Council [2006] 2 AC 465 . Importantly, the judgments in Cosic v Croatia 52 EHRR 1098 , Zehentner v Austria 52 EHRR 739 , Paulic v Croatia given 22 October 2009 and Kay v United Kingdom [2011] HLR 13 were all given after the last of the three House of Lords decisions.

48 This court is not bound to follow every decision of the European court. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the court to engage in the constructive dialogue with the European court which is of value to the development of Convention law: see eg R v Horncastle [2010] 2 AC 373 . Of course, we should usually follow a clear and constant line of decisions by the European court: R (Ullah) v Special Adjudicator [2004] 2 AC 323 . But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed out in Doherty v Birmingham City Council [2009] AC 367 ,para 126, section 2 of the 1998 Act requires our courts to "take into account" European court decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line.

49 In the present case there is no question of the jurisprudence of the European court failing to take into account some principle or cutting across our domestic substantive or procedural law in some fundamental way. That is clear from the minority opinions in Harrow London Borough Council v Qazi [2004] 1 AC 983 and Kay v Lambeth London Borough Council [2006] 2 AC 465 , and also from the fact that our domestic law was already moving in the direction of the European jurisprudence in Doherty v Birmingham City Council [2009] AC 367 . Even before the decision in Kay v United Kingdom [2011] HLR 13 , we would, in any event, have been of the opinion that this court should now accept and apply the minority view of the House of Lords in those cases. In the light of Kay v United Kingdom that is clearly the right conclusion. Therefore, if our law is to be compatible with article 8 , where a court is asked to make an order for possession of a person's home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact.

Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167

LORD BINGHAM OF CORNHILL

1 The following is the opinion of the committee.

...

13 In the course of his justly-celebrated and much-quoted opinion in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 , paras 26-28, Lord Steyn pointed out that neither the traditional approach to judicial review formulated in Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223 nor the heightened scrutiny approach adopted in R v Ministry of Defence, Ex p Smith [1996] QB 517 had provided adequate protection of Convention rights, as held by the Strasbourg court in Smith and Grady v United Kingdom (1999) 29 EHRR 493 . Having referred to a material difference between the Wednesbury and Smith approach on the one hand and the proportionality approach applicable where Convention rights are at stake on the other, he said, at para 28: "This does not mean that there has been a shift to merits review." This statement has, it seems, given rise to some misunderstanding. The policy attacked in Daly was held to be ultra vires the Prison Act 1952 (para 21) and also a breach of article 8 . With both those conclusions Lord Steyn agreed: para 24. They depended on questions of pure legal principle, on which the House ruled. Ex p Smith was different. It raised a rationality challenge to the recruitment policy adopted by the Ministry of Defence which both the Divisional Court and the Court of Appeal felt themselves bound to dismiss. The point which, as we understand, Lord Steyn wished to make was that, although the Convention calls for a more exacting standard of review, it remains the case that the judge is not the primary decision-maker. It is not for him to decide what the recruitment policy for the armed forces should be. In proceedings under the Human Rights Act 1998 , of course, the court would have to scrutinise the policy and any justification advanced for it to see whether there was sufficient justification for the discriminatory treatment. By contrast, the appellate immigration authority, deciding an appeal under section 65 , is not reviewing the decision of another decision-maker. It is deciding whether or not it is unlawful to refuse leave to enter or remain, and it is doing so on the basis of up-to-date facts.

The task of the appellate immigration authority

14 Much argument was directed on the hearing of these appeals, and much authority cited, on the appellate immigration authority's proper approach to its task, due deference, discretionary areas of judgment, the margin of appreciation, democratic accountability, relative institutional competence, a distinction drawn by the Court of Appeal between decisions based on policy and decisions not so based, and so on. We think, with respect, that there has been a tendency, both in the arguments addressed to the courts and in the judgments of the courts, to complicate and mystify what is not, in principle, a hard task to define, however difficult the task is, in practice, to perform. In describing it, we continue to assume that the *185 applicant does not qualify for leave to enter or remain under the rules, and that reliance is placed on the family life component of article 8 .

15 The first task of the appellate immigration authority is to establish the relevant facts. These may well have changed since the original decision was made. In any event, particularly where the applicant has not been interviewed, the authority will be much better placed to investigate the facts, test the evidence, assess the sincerity of the applicant's evidence and the genuineness of his or her concerns and evaluate the nature and strength of the family bond in the particular case. It is important that the facts are explored, and summarised in the decision, with care, since they will always be important and often decisive.

16 The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2) . There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on. In some cases much more particular reasons will be relied on to justify refusal, as in Samaroo v Secretary of State for the Home Department [2002] INLR 55 where attention was paid to the Secretary of State's judgment that deportation was a valuable deterrent to actual or prospective drug traffickers, or R (Farrakhan) v Secretary of State for the Home Department [2002] QB 1391 , an article 10 case, in which note was taken of the Home Secretary's judgment that the applicant posed a threat to community relations between Muslims and Jews and a potential threat to public order for that reason. The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed. It is to be noted that both Samaroo and Farrakhan (cases on which the Secretary of State seeks to place especial reliance as examples of the court attaching very considerable weight to decisions of his taken in an immigration context) were not merely challenges by way of judicial review rather than appeals but cases where Parliament had specifically excluded any right of appeal.

17 Counsel for the Secretary of State nevertheless put his case much higher even than that. She relied by analogy on the decision of the House in Kay v Lambeth London Borough Council [2006] 2 AC 465 , where the House considered the article 8 right to respect for the home. It held that the right of a public authority landlord to enforce a claim for possession under domestic law against an occupier whose right to occupy (if any) had ended and who was entitled to no protection in domestic law would in most cases automatically supply the justification required by article 8(2) , and the courts *186 would assume that domestic law struck the proper balance, at any rate unless the contrary were shown. So here, it was said, the appellate immigration authority should assume that the Immigration Rules and supplementary instructions, made by the responsible minister and laid before Parliament, had the imprimatur of democratic approval and should be taken to strike the right balance between the interests of the individual and those of the community. The analogy is unpersuasive. Domestic housing policy has been a continuing subject of discussion and debate in Parliament over very many years, with the competing interests of landlords and tenants fully represented, as also the public interest in securing accommodation for the indigent, averting homelessness and making the best use of finite public resources. The outcome, changed from time to time, may truly be said to represent a considered democratic compromise. This cannot be said in the same way of the Immigration Rules and supplementary instructions, which are not the product of active debate in Parliament, where non-nationals seeking leave to enter or remain are not in any event represented.....

Proportionality

19 In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80, the Privy Council , drawing on South African, Canadian and Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is proportionate:

"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."

This formulation has been widely cited and applied. But counsel for the applicants (with the support of Liberty, in a valuable written intervention) suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103 , from which this approach to proportionality derives. This feature is (p 139) the need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted. The House recognised as much in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 , paras 17-20, 26, 27, 60, 77, when, having suggested a series of questions which an adjudicator would have to ask and answer in deciding a Convention question, it said that the judgment on proportionality:

"must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage." (see para 20).

If, as counsel suggest, insufficient attention has been paid to this requirement, the failure should be made good.

20 In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8 . If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets *188 a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar , para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test.

__________________________________________________________________________________

Regina (Aguilar Quila and another) v Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621

LORD WILSON JSC

A. Introduction

1 These two appeals relate to one of the rules currently in force by which the appellant, the Secretary of State for the Home Department, determines an application for a visa to enter or remain in the United Kingdom made by the spouse of a person who is present and settled in the UK ("a marriage visa").

2 The Secretary of State appeals against the order of the Court of Appeal dated 21 December 2010 (Sedley, Pitchford and Gross LJJ) [2011] 3 All ER 81 by which it declared that her application of the rule so as to refuse marriage visas to the two effective claimants was unlawful as being-so the majority concluded-in breach of their rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms . In effect pursuant to supplementary orders made by the Court of Appeal the Secretary of State has now granted marriage visas to each of the two claimants. But her appeals to this court, although academic for them, retain a general importance which has justified their continued prosecution.

3 The rule is rule 277 of the Statement of Changes in Immigration Rules (1994) (HC 395). The version of the rule which, as amended by paragraph 11 of the Statement of Changes in Immigration Rules (2003) (HC 538), paragraph 4 of the Statement of Changes in Immigration Rules (2004) (HC 164), paragraph 24 of the Statement of Changes in Immigration Rules (2005) (HC 582) and paragraph 85 of the Statement of Changes in Immigration Rules (2008) (HC 1113), came into force on 27 November 2008 was as follows:

"Nothing in these Rules shall be construed as permitting a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as a spouse or civil partner of another if either the applicant or the sponsor will be aged under 21 ... on the date of arrival in the United Kingdom or (as the case may be) on the date on which the leave to remain or variation of leave would be granted."

That rule therefore governed "a spouse or civil partner". There were parallel rules which governed "a fiancé(e) or proposed civil partner" ( rule 289AA , as inserted by paragraph 19 of HC 538 and amended by paragraph 26 of HC 582) and "an unmarried or same-sex partner": rule 295AA , as inserted by paragraph 20 of HC 538 and amended by paragraph 27 of HC 582.

...

5 Prior to 27 November 2008 rule 277 -like the parallel rules-was in the same terms save only that its reference to age was "under 18" rather than "under 21". Such had been the rule since December 2004, when the minimum age for the applicant had been raised from 16 to 18 so as to become the same as the minimum age for the sponsor, which had been raised to the same extent in April 2003.

6 With effect from 6 April 2010 rule 277 -like the parallel rules-was amended in a small and largely irrelevant respect by paragraph 47 of the Statement of Changes in Immigration Rules (2010) (HC 439). After the words "under 21" were inserted, in parenthesis, the words "or aged under 18 if either party is a serving member of HM Forces".

7 The appeals require focus upon the Secretary of State's purpose in amending rule 277 so as to provide that, with effect from 27 November 2008, a marriage visa should not-in the absence of exceptional, compassionate circumstances which would attract the exercise of her *633 discretion outside the ambit of the rules-be granted until both the sponsor and the applicant had attained the age of 21.

8 The Secretary of State's purpose is clear. It was not to control immigration. It was to deter forced marriages. At the heart of the appeals is her analysis of the nexus between entry into a forced marriage and the increase in the minimum ages requisite for the grant of a marriage visa. No one could contend that the nexus is very obvious.

B. Forced marriage

9 A forced marriage is a marriage into which one party enters not only without her or his free and full consent but also as a result of force including coercion by threats or by other psychological means: section 63A(4)(6) of the Family Law Act 1996 , inserted into it by section 1 of the Forced Marriage (Civil Protection) Act 2007 . The forcing of a person into marriage is a gross and abhorrent violation of her or his rights under, for example, article 16.2 of the Universal Declaration of Human Rights 1948 , article 23.3 of the International Covenant on Civil and Political Rights 1966 and article 12 of the Convention. A forced marriage is entirely different from an arranged marriage in which, in conformity with their cultural expectations, two persons consent to marry each other pursuant to an arrangement negotiated between their respective families. The prevalence of forced marriage within sections of our community in the UK has come increasingly to the attention of a shocked public during, say, the last 12 years as victims of it, or witnesses to it, have at last and less infrequently summoned the courage to report it. In 1999 the Home Office established a Forced Marriage Working Group, which published its findings in 2000. Parliament has responded actively to revelation of the problem by enactment of the 2007 Act, which provides the court with a flexible jurisdiction to make orders protective of a person who may be, or has been, forced into marriage. Under renewed discussion is whether there is any value in also making the act of forcing a person into marriage into a specific criminal offence. The other main instrument of the state's response to the revelation of the problem has been the creation in 2005 by the Home Office and the Foreign and Commonwealth Office of the Forced Marriage Unit ("the FMU").

10 In November 2008 the Secretary of State published guidance The Right to Choose: Multi-agency statutory guidance for dealing with forced marriage under section 63Q of the Family Law Act 1996 , as inserted by section 1 of the 2007 Act. It was for the benefit of those exercising public functions potentially relevant to instances of forced marriage. In the guidance the Secretary of State addressed the motives of those who forced a person to marry in the following terms, at para 36:

"Some of the key motives that have been identified are:

  1. Controlling unwanted sexuality (including perceived promiscuity, or being lesbian, gay, bisexual or transgender)-particularly the behaviour and sexuality of women.
  2. Controlling unwanted behaviour, for example, alcohol and drug use, wearing make-up or behaving in a 'westernised manner'.
  3. Preventing 'unsuitable' relationships, eg outside the ethnic, cultural, religious or caste group.
  4. Protecting 'family honour' or 'izzat'.
  5. Responding to peer group or family pressure.
  6. Attempting to strengthen family links.
  7. Achieving financial gain.
  8. Ensuring land, property and wealth remain within the family.
  9. Protecting perceived cultural ideals.
  10. Protecting perceived religious ideals which are misguided.
  11. Ensuring care for a child or vulnerable adult with special needs when parents or existing carers are unable to fulfil that role.
  12. Assisting claims for UK residence and citizenship.
  13. Long-standing family commitments."

Thus "Assisting claims for UK residence and citizenship" was one of 13 suggested motives.

11 Data included in the guidance or otherwise provided by the FMU suggest the following.

  1. (a) most persons forced into marriage in the UK are female;
  2. (b) for example 86% of the 815 possible cases of forced marriage considered by the FMU between September 2009 and February 2010 related to female victims;
  3. (c) most victims are aged between 13 and 29;
  4. (d) more particularly, of the 145 cases in 2005 in which the FMU provided direct support (as opposed to general or preliminary advice) to victims or potential victims of forced marriage, 44, ie 30%, related to victims aged between 18 and 20; in 2006 the number of victims of that age was again 44 albeit out of 167 cases, ie 26%; and in 2007 the number was 69 out of 212 cases, ie 33%;
  5. (e) it is usually the parents (or one of them) of the victim who apply the force;
  6. (f) most victims are members of South Asian families; and
  7. (g) for example, of the cases in which the FMU gave general or preliminary advice in 2008, 2009 and 2010, over 70% related to families of Pakistani, Bangladeshi or (to a much lesser extent) Indian origin.

C. The facts

12 Mr Aguilar Quila, the first claimant, is a national of Chile who was born on 12 July 1990. His wife, Ms Amber Aguilar, is a British citizen who was born on 25 April 1991 and who until 2009 lived in England. They began a relationship in 2006 when, with his parents, Mr Aguilar Quila was living temporarily in London. Later, on 17 August 2008, he returned to the UK on a student visa which was expressed to expire on 3 August 2009. In September 2008 they became engaged and on 22 November 2008 they were married. The Secretary of State acknowledges that they married because they were in love. By then they were aware of the imminent change in the rule; but even under the old rule Mr Aguilar Quila was not then entitled to a marriage visa because, although he had attained the age of 18, his wife would not attain it until 25 April 2009.....

16 In August 2010 Mr Aguilar Quila and his wife, who had been staying with his family in cramped conditions in Santiago, moved to Ireland, where she embarked on a course at University College, Dublin. The paradox that Mr Aguilar Quila and his wife were entitled to live in Ireland but not in the UK arose from the fact that, as an EEA citizen exercising treaty rights to live in an EU state, Mr Aguilar Quila's wife had a right to live there with him. In February 2011 the Secretary of State granted the marriage visa to Mr Aguilar Quila with the result that, with his wife, he moved back to the UK....

D. The genesis of the amendment to rule 277

19 On 22 September 2003 the Council of the European Union adopted Directive 2003/86/EC on the right to family reunification. Its purpose was to determine the conditions under which third country nationals, ie not citizens of the EU, who were residing lawfully in an EU state could, by sponsorship, secure entry to it for their spouses and other family members. It did not address, even implicitly, how an EU state should respond to such requests when made by one of its own citizens or by a citizen of another EU state. Article 4(5) provided:

"In order to ensure better integration and to prevent forced marriages member states may require the sponsor and his/her spouse to be of a minimum age, and at maximum 21 years, before the spouse is able to join him/her."

20 The UK, Ireland and Denmark were not bound by the Directive....

22 In the above circumstances it was entirely appropriate that the Secretary of State should examine whether the minimum ages for a marriage visa should be raised to 21 or 24 in the UK.....

25 In December 2007 the Secretary of State issued a consultation paper entitled Marriage to Partners From Overseas . The main questions were whether, in order to reduce the incidence of forced marriage, the minimum ages for a marriage visa should be increased to 21. A subsidiary question was whether a person should be required to declare her intention to be a sponsor prior to departure from the UK in order to contract a marriage abroad.

26 On 13 June 2008 the Home Affairs Select Committee of the House of Commons (Sixth Report of Session 2007-2008) published a report entitled Domestic Violence, Forced Marriage and "Honour"-Based Violence (HC 263-I). It was a magisterial report upon various types of domestic abuse in the UK and it extended far beyond the subject of forced marriage. But the report included a section on the question which the Secretary of State had put out for consultation. It noted that the use of visa application rules in order to tackle forced marriage was controversial. It concluded as follows:

"110. The testimony we heard from forced marriage survivors suggests that the desire to procure a marriage visa for a spouse can be an important factor in forced marriage. When we asked for their views on this issue, survivors told us that raising the age of sponsorship for marriage visas from 18 to 21 could better equip victims to refuse an unwanted marriage. However, associated with such a change is a significant risk that young people would be kept abroad for sustained periods between a marriage and being able to return to the UK with their spouse.

"111. We have not seen sufficient evidence to determine whether or not raising the age of sponsorship would have a deterrent effect on forced marriage. Given the potential risks involved, we urge the Government to ensure that any changes it proposes to its policy on visa application procedures in respect of sponsorship are based on further research and conclusive evidence as to the effect of those changes. This evidence must demonstrate that any changes will not inadvertently discriminate against any particular ethnic groups."

27 In July 2008, in the light, inter alia, of the responses to the consultation, the Secretary of State issued her proposals for reform in a report entitled Marriage Visas: The Way Forward. Although there were proposed provisions which would equip applicants for marriage visas with greater knowledge of English, its main proposal was to increase the minimum ages from 18 to 21....Then the report quoted the urgent request recently made by the Home Affairs Select Committee that no increase in the minimum ages be made without conclusive evidence that it would deter forced marriage and not be discriminatory. The report's response was as follows, at para 3.8:

"We believe there is such conclusive evidence because reports of forced marriage peak sharply at ages 18 and above. By age 21, reports of forced marriage begin to decline sharply."

There was then a reference, in tabular form, to the statistics provided by the FMU about the age of victims of forced marriage, to which I have referred in para 11(d) above. But the response at para 3.8 above to the Select Committee's call for conclusive evidence was wholly inadequate: for the call had been for evidence not about the age of victims of forced marriage but about whether an increase in the minimum ages for a marriage visa would deter it....

28....There was no attempt in the document to explain why the Secretary of State had concluded that the increase would indeed be proportionate in the light of its effect on those who entered into marriages which were not forced and of whom at least one was aged between 18 and 21. There was no attempt even to address the size of that constituency.....

F. Justification under article 8.2

44 The burden is upon the Secretary of State to establish that the interference with the rights of the claimants under article 8 , wrought by the amendment to rule 277 effective from 27 November 2008 ("the amendment"), was justified under paragraph 2 of the article: see Marcic v Thames Water Utilities Ltd [2004] 2 AC 42 , para 37. But in an evaluation which transcends matters of fact it is not in my view apt to describe the requisite standard of proof as being, for example, on the balance of probabilities.

45 The amendment had a legitimate aim: it was "for the protection of the rights and freedoms of others", namely those who might otherwise be forced into marriage. It was "in accordance with the law." But was it "necessary in a democratic society"? It is within this question that an assessment of the amendment's proportionality must be undertaken. In Huang v Secretary of State for the Home Department [2007] 2 AC 167 , Lord Bingham of Cornhill suggested, at para 19, that in such a context four questions generally arise, namely: (a) is the legislative objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community? In the present case the requisite inquiry may touch on question (b) but the main focus is on questions (c) and (d).

46 But what is the nature of the court's inquiry? In R (SB) v Governors of Denbigh High School [2007] 1 AC 100 Lord Bingham of Cornhill said, at para 30:

"it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting ... There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test ... The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time ... Proportionality must be judged objectively, by the court ..."

Lord Brown of Eaton-under-Heywood JSC's call, at para 91 below, for the courts in this context to afford to government a very substantial area of discretionary judgment is at odds with my understanding of the nature of their duty. Indeed, in Huang's case [2007] 2 AC 167 , Lord Bingham proceeded to explain, at para 16, that it would be wrong to afford "deference" to the judgments of the Secretary of State on matters related to the above questions albeit that appropriate weight had to be given to them to the extent, in particular, that she was likely to have had access to special sources of knowledge and advice in connection with them. He added, at para 17, that, notwithstanding the limited right of Parliament to call upon the Secretary of State to reconsider proposed changes in the Immigration Rules provided by section 3(2) of the Immigration Act 1971 , it would go too far to say that any changes ultimately made had the imprimatur of democratic approval such as would be relevant in particular to any answer to question (d) set out in para 45 above.

47 In the present appeals the questions identified above fall upon two sides. One side asks whether, and if so to what extent, the amendment is likely to have deterred, and to continue to deter, forced marriages. The other side asks how many parties to unforced marriages are likely to be condemned by the amendment to suffer the interference with their rights exemplified in the two cases before the court.

48 The Secretary of State's contention that the amendment is likely to deter forced marriages remains based upon the four bullet points included in para 34 of her report entitled Marriage Visas: The Way Forward , set out in para 27 above. Her main suggestion is that the passage of up to three years should strengthen the ability of either the intended or the actual victim of a forced marriage to resist either entry into it or her later act of sponsorship which, were she to have remained living in the UK, would enable the spouses to cohabit here. The suggestion is tenable. But ten other questions arise and, since they are but questions, there is no need for me to identify in the materials and submissions presented to the court the source from which they come. In what follows I will, for convenience, take the victim of a forced marriage to be a girl present and settled in the UK whose parents force her to marry a man resident abroad without a pre-existing right of abode in the UK.

49 The ten questions are as follows.

  1. (a) Of the 13 motives for forcing a marriage suggested in para 36 of the guidance published by the Secretary of State in November 2008, set out in para 10 above, how prevalent in the genesis of forced marriages is that of "Assisting claims for UK residence and citizenship"?
  2. (b) From the fact that a forced marriage has precipitated an application for a marriage visa does it follow that the motive behind it was immediately to secure the visa and that, were it not immediately available, the marriage would not have occurred?
  3. (c) Even if by virtue of the amendment, the ages of the girl and/or of the man were such as to preclude the grant of a marriage visa for up to three years, might the parents nevertheless force the girl into the marriage in order, for example, to prevent her from entering into a consensual marriage which they regarded as unsuitable?
  4. (d) Even if the effect of the amendment were to preclude the immediate grant of a marriage visa, might the girl nevertheless be forced to marry the man abroad and thereupon be kept under control abroad until their ages were such as to enable her successfully to sponsor his application for a visa?
  5. (e) In the example at (d) might the girl kept under control abroad there have a lesser opportunity to escape from the forced marriage than if the rules had enabled her to set up home with the man in the UK immediately following the marriage?
  6. (f) Alternatively to the example at (d), might the girl be brought to the UK following the forced marriage and be kept under control in the UK until *645 their respective ages were such as to enable her successfully to sponsor the man's application for a visa?
  7. (g) Even if the preclusion of the grant of a marriage visa for up to three years were to deter her parents from forcing the girl to marry at that stage, might the result be an increased intensity of control on their part over her for that period-whether by moving her abroad or by continuing to keep her in the UK-and, in either event, would her increasing maturity be likely to enable her to combat it?
  8. (h) How readily could one or more false certificates of birth be obtained which would deceive the immigration authorities into accepting that the girl and the man were both aged over 21?
  9. (i) Might the effect of the amendment be to precipitate a swift pregnancy in the girl, following the forced marriage and an act or acts of rape, such as might found an application for a discretionary grant of a marriage visa by reference to exceptional, compassionate circumstances?
  10. (j) Even if the effect of the amendment were to deter her parents from forcing the girl to marry a man resident abroad without a pre-existing right of abode in the UK, might they instead force her to marry a man with UK or EU citizenship or some other pre-existing right of abode in the UK?

50 The ten questions are not easily answered.....In June 2008 the Home Affairs Select Committee urged the Secretary of State not to introduce the amendment until, following further research, there was conclusive evidence about its effect. But she proceeded to introduce it. The questions remain unanswered. The Secretary of State has failed to demonstrate that, when she introduced it, she had robust evidence of any substantial deterrent effect of the amendment upon forced marriages.

51 I turn to unforced marriages. What was the likely scale of the inevitably detrimental effect of the amendment on unforced marriages. A subsidiary question, raised by the Home Affairs Select Committee in June 2008, was whether the detrimental effect was likely to be visited disproportionately upon members of communities with a tradition of marriage at a young age.

52 In this regard the evidence of the Secretary of State in these proceedings was provided by Ms Smith, Deputy Director of Immigration Policy. She said:

"17. The question of proportionality in terms of the impact upon couples intending to enter a marriage that was not forced where one or both of the couple are aged under 21 was considered carefully when drafting the policy ..."

"20. ... the numbers affected by the rule change constituted a very small proportion of those applying for marriage visas for the UK. In 2006, for example, 7% (3,420) of spouses granted leave to enter the UK were aged between 18 and 20 and 2·5% (520) of people granted leave to remain in the UK as a spouse were within this age group. In 2007, 2·7% (1,245) of spouses granted leave to enter and 2·6% (700) of spouses granted leave to remain in the UK as a spouse were aged 18 to 20 ...

"21. We concluded that as the policy would affect less than 3% of those granted both leave to enter and leave to remain in the UK as a spouse in 2007, and as the evidence demonstrated that the rates of forced marriage were highest amongst those aged 17-20 in 2005-2008, the policy would represent a proportionate response to the issue of forced marriage, and the importance of protecting the rights and freedoms of vulnerable persons who might be forced into marriage would outweigh the significance of any adverse impact on particular communities or age groups ..."

53 But it establishes nothing to note first that 3,940 and 1,945 marriage visas were granted in 2006 and 2007 respectively to those aged between 18 and 20; second that at any rate the figure for 2007 was less than 3% of all marriage visas granted in that year (therefore presumably amounting to about 65,000); and that the rates of forced marriage were highest (ie about 30%: see para 11(d) above) among those aged between 17 or 18 and 20. To deny marriage visas to 3,940 or even only to 1,945 applicants in a year is, irrespective of percentages, to deny them in a vast number of cases. The relevant question relates to the likely size of forced marriages within these numbers.

54 The evidence does not begin to provide an answer to this question....

58 I would, in conclusion, acknowledge that the amendment is rationally connected to the objective of deterring forced marriages. So the Secretary of State provides a satisfactory answer to question (b) set out in para 45 above. But the number of forced marriages which it deters is highly debatable. What seems clear is that the number of unforced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters. Neither in the material which she published prior to the introduction of the amendment in 2008 nor in her evidence in these proceedings has the Secretary of State addressed this imbalance-still less sought to identify the scale of it. Even had it been correct to say that the scale of the imbalance was a matter of judgment for the Secretary of State rather than for the courts, it is not a judgment which, on the evidence before the court, she has ever made. She clearly fails to establish, in the words of question (c), that the amendment is no more than is necessary to accomplish her objective and, in the words of question (d), that it strikes a fair balance between the rights of the parties to unforced marriages and the interests of the community in preventing forced marriages. On any view it is a sledge-hammer but she has not attempted to identify the size of the nut. At all events she fails to establish that the interference with the rights of the claimants under article 8 is justified.

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Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591

LORD CARNWATH JSC (with whom LORD NEUBERGER OF ABBOTSBURY PSC, BARONESS HALE OF RICHMOND DPSC and LORD WILSON JSC agreed)

1 The central issue in this appeal is whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the claimant of British citizenship because to do so would render him stateless. This turns on whether (within the meaning of article 1(1) of the 1954 Convention relating to the Status of Stateless Persons) he was "a person who is not considered as a national by any state under the operation of its law". If this issue is decided against him he also seeks to argue that the decision was disproportionate and therefore unlawful under European law.

Background

2 The claimant was born in Vietnam in 1983 and thus became a Vietnamese national. In 1989, after a period in Hong Kong, the family came to the UK, claimed asylum and were granted indefinite leave to remain. In 1995 they acquired British citizenship. Although none of them has ever held Vietnamese passports, they have taken no steps to renounce their Vietnamese nationality. The claimant was educated in this country and attended college in Kent. At 21 he converted to Islam. Between December 2010 and July 2011 he was in the Yemen, where, according to the security services but denied by him, he is said to have received terrorist training from Al Qaida. It is the assessment of the security services that at liberty he would pose an active threat to the safety and security of this country. That assessment has not yet been subject to judicial examination.

3 On 22 December 2011 the Secretary of State served notice of her decision to make an order under section 40(2) of the British Nationality Act 1981 , as substituted by section 56(1) of the Immigration, Asylum and Nationality Act 2006 , depriving the claimant of his British citizenship, being satisfied that this would be "conducive to the public good". She considered that the order would not make him stateless (contrary to section 40(4) , as substituted by section 4(1) of the Nationality, Immigration and Asylum Act 2002 ) because he would retain his Vietnamese citizenship. The order was made later on the same day and served on the claimant, followed by notice of her decision to deport him to Vietnam. Thereafter, the Vietnamese Government has declined to accept him as a Vietnamese citizen.....

94 In a judgment in Kennedy v Information Comr [2014] 2 WLR 808 , paras 55-56, with which Lord Neuberger of Abbotsbury PSC and Lord Clarke of Stone-cum-Ebony JSC agreed, and with the reasoning in which I understand Lord Toulson JSC also to have agreed (para 150), I concluded that there would be no real difference in the context of that case between the nature and outcome of the scrutiny required under common law and under article 10 of the Convention on Human Rights , if applicable. The judgment noted (para 51) that: "The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so-called Wednesbury principle: see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223 . The nature of judicial review in every case depends on the context."

95 The judgment also endorsed (in para 54) Professor Paul Craig's conclusion (in "The Nature of Reasonableness" (2013) 66 CLP 131) that "both reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision maker's view depending on the context" and continued:

"The advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages. There seems no reason why such factors should not be relevant in judicial review even outside the scope of Convention and EU law. Whatever the context, the court deploying them must be aware that they overlap potentially and that the intensity with which they are applied is heavily dependent on the context. In the context of fundamental rights, it is a truism that the scrutiny is likely to be more intense than where other interests are involved."

96 In short, proportionality is-as Professor Dr Lübbe-Wolff (former judge of the Bundesverfassungsgericht which originated the term's modern use) put it in The Principle of Proportionality in the Case Law of the German Federal Constitutional Court (2014) 34 HRLJ 12 , 16-17-"a tool directing attention to different aspects of what is implied in any rational assessment of the reasonableness of a restriction", "just a rationalising heuristic tool". She went on, at p 16: "Whether it is also used as a tool to intensify judicial control of state acts is not determined by the structure of the test but by the degree of judicial restraint practised in applying it." Whether under EU, Convention or common law, context will determine the appropriate intensity of review: see also Kennedy v Information Comr [2014] 2 WLR 808 , para 54.

97 The present appeal concerns a status which is as fundamental at common law as it is in European and international law, that is the status of citizenship. Blackstone ( Commentaries on the Laws of England 15th ed (1809), vol 1, p 137) states the position as follows:

"A natural and regular consequence of this personal liberty is, that every Englishman may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law. The king indeed, by his royal prerogative, may issue out his writ ne exeat regnum, and prohibit any of his subjects from going into foreign parts without licence ... But no power on earth, except the authority of parliament, can send any subject of England out of the land against his will; no, not even a criminal. For exile, and transportation, are punishments at present unknown to the common law ..."

The last two sentences of this passage were cited and approved by Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453 , paras 43-44. In the same case, para 70, Lord Bingham of Cornhill identified the relevant principles by the following quotations, in terms with which the Secretary of State did not quarrel:

"Sir William Holdsworth, A History of English Law, (1938) , vol X, p 393, states: 'The Crown has never had a prerogative power to prevent its subjects from entering the kingdom, or to expel them from it.' Laws LJ, in para 39 of his Bancoult (No 1) judgment which the Secretary of State accepted, cited further authority: 'For my part I would certainly accept that a British subject enjoys a constitutional right to reside in or return to that part of the Queen's dominions of which he is a citizen. Sir William Blackstone says in Commentaries on the Laws of England , 15th ed (1809), vol 1, p 137: 'But no power on earth, except the authority of Parliament, can send any subject of England out of the land against his will; no, not even a criminal.' Compare Chitty, A Treatise on the law of the Prerogatives of the Crown and the Relative Duties and Rights of the Subject (1820) , pp 18, 21. Plender, International Migration Law , 2nd ed (1988), ch 4, p 133 states: 'The principle that every state must admit its own nationals to its territory is accepted so widely that its existence as a rule of law is virtually beyond dispute ...' and cites authority of the European Court of Justice in Van Duyn v Home Office (Case 41/74) [1975] Ch 358 , 378-379 in which the court held that 'it is a principle of international law ... that a state is precluded from refusing its own nationals the right of entry or residence'. Dr Plender further observes, International Migration Law , p 135: 'A significant number of modern national constitutions characterise the right to enter one's own country as a fundamental or human right', and a long list is given.'" ...

98 Removal of British citizenship under the power provided by section 40(2) of the British Nationality Act 1981 is, on any view, a radical step, particularly if the person affected has little real attachment to the country of any other nationality that he possesses and is unlikely to be able to return there. A correspondingly strict standard of judicial review must apply to any exercise of the power contained in section 40(2) , and the tool of proportionality is one which would, in my view and for the reasons explained in Kennedy v Information Comr [2014] 2 WLR 808 , be both available and valuable for the purposes of such a review. If and so far as a withdrawal of nationality by the United Kingdom would at the same time mean loss of European citizenship, that is an additional detriment which a United Kingdom court could also take into account, when considering whether the withdrawal was under United Kingdom law proportionate. It is therefore improbable that the nature, strictness or outcome of such a review would differ according to whether it was conducted under domestic principles or whether it was also required to be conducted by reference to a principle of proportionality derived from Union law.

LORD SUMPTION.....

103 I add a judgment of my own in order to address a point which was raised with counsel in the course of the hearing but not developed in argument, and which appears to me to be of some importance. One of the questions to be remitted to SIAC is the impact (if any) of EU law on the remaining issues raised by Mr Pham's application. The main reason why this is said to matter is that if the withdrawal of Mr Pham's British nationality was within the ambit of EU law it will be necessary to apply to the decision the principle of proportionality. This assumes that the principle of proportionality as it applies in EU law is liable to produce a different result in a case like this by comparison with ordinary principles of English public law. I question whether this is necessarily correct.

104 In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 , 410, Lord Diplock envisaged the possibility that English law might adopt proportionality from continental systems of public law as an additional ground of review. In fact, the courts have applied a proportionality test to acts of public authorities said to contravene principles of European Union law and or to interfere with rights protected by the European Convention on Human Rights , both of which incorporate proportionality as an integral part of their test for legal justification. But they have not adopted proportionality generally as a principle of English public law. With the progressive enlargement of the range of issues which are affected by EU law or the Convention (or, increasingly, by both), this has produced some rather arbitrary distinctions between essentially similar issues, depending on the source of law which is invoked as a ground of challenge. The present case is a particularly striking illustration of this problem. If a person could be deprived of European citizenship as such, a test of proportionality would in principle have to be applied. On the other hand, if the matter turns wholly on domestic law and only the three traditional grounds of review recognised in Council of Civil Service Unions v Minister for the Civil Service are applied , then no test of proportionality would be. In fact, European citizenship is acquired or lost as the incidental consequence of acquiring or losing British citizenship. The Home Secretary's decision therefore affects Mr Pham's status in both respects. It is hardly satisfactory to apply a proportionality test to the decision so far as it affects his European citizenship but not so far as it affects his British nationality when the decision is a single indivisible act. An alternative approach would be to regard European citizenship as a mere attribute of national citizenship. That would be consistent with the fact that it is wholly parasitic on national citizenship. But it is not consistent with some of the wider dicta of the Court of Justice of the European Union treating European citizenship as "fundamental".

105 However, although English law has not adopted the principle of proportionality generally, it has for many years stumbled towards a concept which is in significant respects similar, and over the last three decades has been influenced by European jurisprudence even in areas of law lying beyond the domains of EU and international human rights law. Starting with the decision of the House of Lords in R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514 it has recognised the need, even in the context of rights arising wholly from domestic law, to differentiate between rights of greater or lesser importance and interference with them of greater or lesser degree. This is essentially the same problem as the one to which proportionality analysis is directed. The solution adopted, albeit sometimes without acknowledgment, was to expand the scope of rationality review so as to incorporate at common law significant elements of the principle of proportionality.

106 This approach was originally adopted in dealing with rights protected by the Convention, at a time when it did not have the force of law and the courts were unwilling to apply any presumption that domestic legislation was intended to be construed consistently with it. Many of these rights had been recognised at common law for many years, in some cases since the famous opening chapter of Blackstone's Commentaries on the Laws of England ("The Rights of Persons"). In Ex p Bugdaycay , the House of Lords recognised that a more exacting standard of review was required when the decision of a public authority interfered with a "fundamental" right. That case concerned the right to life, which is perhaps the most fundamental of all rights. But I doubt whether it is either possible or desirable to distinguish categorically between ordinary and fundamental rights, applying different principles to the latter. There is in reality a sliding scale, in which the cogency of the justification required for interfering with a right will be proportionate to its perceived importance and the extent of the interference. As Lord Bridge of Harwich observed in R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696 , 748-749, the courts are "perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it." In R v Ministry of Defence, Ex p Smith [1996] QB 517, the Court of Appeal adopted the following statement of principle from the argument of counsel (Mr David Pannick QC), at p 554:

"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."

This is in substance a proportionality test, but with the important difference that the court declined to judge for itself whether the decision was proportionate, instead asking itself whether a rational minister could think that it was. This is why when the case came before the European Court of Human Rights (Smith and Grady v United Kingdom (1999) 29 EHRR 493 , para 138) it was held that the test applied by the English courts was not sufficient to protect human rights.

107 The differences between proportionality at common law and the principle applied under the Convention were considered by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 , paras 27-28. In a passage with which the rest of the House of Lords associated itself, he identified three main differences: (i) a proportionality test may require the court to form its own view of the balance which the decision-maker has struck, not just decide whether it is within the range of rational balances that might be struck; (ii) the proportionality test may require attention to be directed to the relative weight accorded to competing interests and considerations; and (iii) even heightened scrutiny at common law is not necessarily enough to protect human rights. The first two distinctions are really making the same point in different ways: balance is a matter for the decision-maker, short of the extreme cases posited in Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223 . But it may be questioned whether it is as simple as this. It is for the court to assess how broad the range of rational decisions is in the circumstances of any given case. That must necessarily depend on the significance of the right interfered with, the degree of interference involved, and notably the extent to which, even on a statutory appeal, the court is competent to reassess the balance which the decision-maker was called on to make given the subject matter. The differences pointed out by Lord Steyn may in practice be more or less significant depending on the answers to these questions. In some cases, the range of rational decisions is so narrow as to determine the outcome.....

___________________________________________________________________________

Regina (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3; [2016] AC 1457

LORD CARNWATH ...

55 In R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2016] AC 1355 (decided since the hearing in this appeal) this court had occasion to consider arguments, in the light of Kennedy and Pham , that this court should authorise a general move from the traditional judicial review tests to one of proportionality. Lord Neuberger of Abbotsbury PSC (with the agreement of Lord Hughes JSC) thought that the implications could be wide ranging and "profound in constitutional terms", and for that reason would require consideration by an enlarged court: para 132. There was no dissent from that view in the other judgments. This is a subject which continues to attract intense academic debate: see, for example, the illuminating collection of essays in The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow , (2015), eds Wilberg and Elliott. It is to be hoped that an opportunity can be found in the near future for an authoritative review in this court of the judicial and academic learning on the issue, including relevant comparative material from other common law jurisdictions. Such a review might aim for rather more structured guidance for the lower courts than such imprecise concepts as "anxious scrutiny" and "sliding scales".

56 Even in advance of such a comprehensive review of the tests to be applied to administrative decisions generally, there is a measure of support for the use of proportionality as a test in relation to interference with "fundamental" rights: the Keyu case, at paras 280-282, per Lord Kerr of Tonaghmore JSC, and at para 304, per Baroness Hale of Richmond DPSC. Lord Kerr JSC referred to the judgment of Lord Reed JSC in Pham v Secretary of State for the Home Department [2015] 1 WLR 1591 , paras 113, 118-119, where he found support in the authorities for the proposition that:

"where Parliament authorises significant interferences with important legal rights, the courts may interpret the legislation as requiring that any such interference should be no greater than is objectively established to be *1486 necessary to achieve the legitimate aim of the interference: in substance, a requirement of proportionality": para 119.

See also my own judgment in the same case, at para 60, and those of Lord Mance JSC, at paras 95-98 and Lord Sumption JSC, at paras 105-109, discussing the merits of a more flexible approach in judging executive interference with important individual rights, in that case the right to British citizenship.

57 On the other hand, in many cases, perhaps most, application of a proportionality test is unlikely to lead to a different result from traditional grounds of judicial review. This is particularly true of cases involving issues of national security. In Bank Mellat v HM Treasury (No 2) [2014] AC 700 (which concerned another Security Council regime, relating to nuclear weapons), there was not only majority and minority agreement as to the steps involved in an assessment of "proportionality" (demanded in that case by the relevant statute), but also, within that context, general recognition that on issues of national security a large margin of judgment was accorded to the Executive: see pp 770-771, paras 20-21 per Lord Sumption JSC and p 797, para 98, per Lord Reed JSC. The difference turned on contrasting views as to the allegedly discriminatory nature of the restrictions in that case. Similar considerations apply in the present case.