So as expected, we finally have it. SSHD’s application for permission to appeal to the Supreme Court in relation to the visa age judgment yesterday pinged through our email inbox.
What is she arguing?
Well, SSHD is appealing on four grounds. Firstly, she thinks that the majority in the Court of Appeal got in wrong when they said the Abdulaziz principle (no general obligation to respect the choice by married couples of the country of matrimonial residence) did not apply to the claimants as they were British citizens.
Secondly, and linked to the above reasoning, is the argument that the majority in the Court of Appeal were wrong to hold that, on the facts of the cases, interference with family life was sufficiently serious as to breach Article 8 (1) (respect for family life) ECHR, and that this therefore required justification under Article 8 (2) ECHR (i.e. must be shown to be necessary in a democratic society for the protection of the rights and freedoms of others).
The third ground is that the majority in the Court of Appeal were wrong to find that the claimants had common law rights (i.e. to live together as a married couple in the UK) that were breached, on an application of the doctrine of proportionality at common law.
Finally, they’re arguing that the finding that Rule 277 was disproportionate in its effects on the claimants other than British citizens was wrong, not only in relation to the particular facts of the claimants, but also in relation to the policy more generally.
What does this mean?
Well we need to wait and see what the Supreme Court makes of all of this, and will keep you updated.
Our client has been told, that subject to completing an entry clearance form without a fee, and subject to no material change in circumstances, he should be granted entry clearance. As such, we still take the view that anyone refused on the basis of the Rule (whether they have a British spouse or not) should put in further submissions, and it would now seem, complete an entry clearance form (without a fee). See our previous post for further detail.
One can’t help but feel a profound sense of disappointment at this whole affair. The whole point behind the Human Rights Act was that it was designed to bring about a cultural shift both in the way in which policy is actually made, but also more generally in society itself. Policy makers instead have chosen to use it as a tool that absolves them from responsible, accountable and frankly thoughtful evidenced based policy making safe in the knowledge that they can pass the buck to someone else (in this case the judges) for policy decisions in more politically challenging areas. Regrettably if this case is anything to go by, that trend looks set to continue under the Coalition Government.