A.A. v. The Secretary of State for the Home Department [2010] CSOH 98

Judicial review:- The petition sought reduction of a decision of the Secretary of State for the Home Department, in which the petitioner was refused leave to remain in the UK.

In 2003, the petitioner submitted to the respondent an application for leave to remain in UK, on the basis of his marriage to a UK national. This was rejected; the petitioner had the opportunity to appeal against this determination, but did not do so. The petitioner made a further application, which was later rejected in November 2009, and which formed the subject to this petition for review. The respondent gave the petitioner no right of appeal against this decision.
The petitioner argued the respondent had erred in law in failing to provide a right of appeal against the second decision and had approached consideration of the petitioner’s Article 8 ECHR rights (right to a private and family life) in a manner which was Wednesbury irrational.

First, the petitioner submitted that the second decision was an “immigration decision” in terms of sections 82 and 83 of the Nationality, Immigration and Asylum Act 2002, the court being obliged to employ a liberal construction to the interpretation of the Act. A consequence of this interpretation was that the petitioner was entitled to a right of appeal on that decision. Secondly, the petitioner submitted that the respondent was personally barred from refusing a right to appeal, having previously offered a right to appeal in its first decision. Thirdly, the petitioner submitted the respondent had omitted to have due regard to his Article 8 ECHR rights, in failing to have appropriate respect for his family life, particularly his relationship with his wife, and with his child.

In relation to the respondent’s refusal of a right of appeal on the second decision, the court opined that on a proper construction of section 82, the decision concerned did not qualify as an “immigration decision”. The court ruled that a liberal construction was not open to the court on this occasion, noting the closely regulated nature of the provisions of the Act, to construe otherwise would be to run counter to the clear intention of Parliament. Further, the two decisions being of a different nature, the court did consider offering a right of appeal in one decision personally barred the respondent from refusing a right of appeal in another decision. Moreover, the court was of the opinion that the respondent had adequately taken into account all factors relating to the petitioner’s family life and was entitled to come to the view that his family life would not be interfered with as a result of his removal from the UK. Petition for reduction rejected.

Court: Court Of Session (Outer House) (Scotland)
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