A significant judgement was made in the case of Mohammed Butt v Secretary of State for the Home Department [2017] EWCA Civ 184, which brought into question the Judge’s Article 8 ECHR proportionality test. The Upper Tribunal (“UT”) dismissed the Applicant’s appeal against the decision to reject both his claim for Asylum and Leave to Remain application on the basis that the balance of the public need and interest of effective immigration control can outweigh the right to Private and Family life under Article 8 of the European Convention on Human Rights (“ECHR”).
Article 8 ECHR Proportionality Test: Background of Mohammed Butt v SSHD
The Applicant appealed the UT decision to refuse his claim for asylum for himself and his wife. The Applicant arrived in the United Kingdom on 7 July 2004 along with his wife and two adult daughters with entry clearance which expired on 12 August 2004. The family did not make an attempt to regularise their status in the United Kingdom for over 8 years until February 2012, whereby they applied for Leave to Remain on human rights grounds, citing Article 8 ECHR. This application was rejected on 20 November 2012, yet the appeal by the daughters was allowed on the grounds of Article 8 ECHR. The parents made a further appeal, which was then rejected on the basis of an Article 8 ECHR proportionality test in respect of the need for effective immigration control.
Article 8 ECHR Proportionality Test: The Grounds for the Decision
The reason for the rejection of the Applicant and his wife’s appeal to the Upper Tribunal was that they had failed to regularise their status in the UK for over 8 years, resulting in an adverse immigration history. The Applicants’ reason for not doing was that they claimed they were acting on poor advice given to them, and that they received threats from Pakistan which included threatening phone calls. This was not accepted by the Upper Tribunal. The appeals of the daughters, however, were accepted based on Article 8 ECHR, as the Judge deemed that they are “young people likely to make a positive contribution to the UK economy and the retention of their skills is in the public interest would be a real benefit to the United Kingdom”. In this instance, then, the Article 8 ECHR proportionality test found in favour of the daughters.
Disputing the judgement, the Applicant argued that the Judge had not considered the effect of the removal of himself and his wife on his two daughters. Due to the closeness of their family; partly because to their religion, they submitted that the upset and distress of the separation may have an adverse effect on the adult daughters’ abilities to perform well professionally as they seek constant reassurance and support from their parents. However, it was argued that the Adult Dependent Relatives would soon need to lead independent lives away from the family home, pursuing work, education and even marriage. The Judge’s conclusion in this case was that the emotional trauma of the adult daughters arising from separating them from their parents does not outweigh the public interest of immigration control.
Article 8 ECHR Proportionality Test: The Impact on Applications and Appeals
Applications or appeals involving Article 8 ECHR proportionality test can be highly fact sensitive, and unusual or exceptional facts in a case can possibly bring success. Exceptional circumstances that balance consideration of private and family life under Article 8 ECHR could successfully challenge the decision so it is essential to seek professional legal advice when submitting applications and appeals.
Using Legal Representation for Applications Involving Article 8 ECHR Proportionality Test
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative in cases involving the Article 8 ECHR proportionality test.
Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.
This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.
Successful Applications Involving Article 8 ECHR Proportionality Test
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Preparation is the key to successful immigration applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.
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