Case No. UKUT-00515-(IAC)

) v Attorney General [2015] UKSC 21, at [51] – [59]. 14. The next step in the Appellants’ argument involves the proposition that it is for the c ourt or t ribunal concerned to decide the issue of proportionality under Article 8(2) ECHR. In performing this function the c ourt or t ribunal decides how much weight is to be attributed to competing considerations in determining how the balance should be struck between the public interest and protected individual rights: see inter alia , Huang v Secretary of State for the Home Department [2007] UKHL 11 and EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41. The doctrine of judicial pre cedent requires lower c ourts and t ribunals to follow binding authorities of superior Courts. As a result, section 117B(4) and (5) does not require the c ourt or t ribunal concerned to ascribe “ little weight ” to the matters specified therein. Rather, it is argued that what appears to be a clear and strict instruction to the c ourt or t ribunal can effectively be ignored, with the result that the Judge is unconstrained in deciding how much weight to accord to each of the listed considerations. 15. The riposte of Mr Sheldon on behalf of the Secretary of State is that the meaning of section 117A(2) is unambiguous: in conducting the Article 8(2) proportionality assessment the c ourt or t ribunal concerned must have regard to the specified considerations. There will be no obligation to do so in cases where the considerations do not arise. The “ little weight ” provisions in section 117B(4) and (5) are the statutory incarnation of principles well established in both the domestic and Strasbourg jurisprudence. These are conveniently summarised in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin), at [38] – [41]. Section 117B(5) in effect operates as a reminder to c ourts and t ribunals of a principle which, irrespective of its recent incorporation in statute, they would be obliged to apply in any event. Finally, Mr Sheldon submitted that this issue of construction arises in a vacuum, given that in dismissing the appeals the FtT did not decide that little weight should be given to either of the matters specified in section 117B(4) and (5). 16. It is convenient to address this latter argument first. In short, I find it persuasive . The central issues for the FtT were whether it would be reasonable to expect the younger child to return to Mauritius and whether there were any insurmountable obstacles to the reintegration in Mauritius of the other three Appellants. I have rehearsed in [ 4 ] and [5] above the relevant provisions of both Part 5A of the 2002 Act and the Rules. I have concluded that the FtT did not engage in any impermissible elision. Furthermore, there is no adverse “precariousness” finding in its determination. The only provisions of Part 5A considered by the FtT were section 117B(3) and (6). It follows f ro m this analysis that, in my judgment, Mr Sheldon’s submission is to be accepted. The construction of sections 117A and 117B urged on behalf of the Appellants simply does not arise having regard to the provisions of Part 5A which the FtT considered and its ensuing findings and conclusions. 17. While the second ground of appeal must, therefore, fail, given the fullness of argument on the statutory construction issue I would add the following. First, I reiterate what this Tribunal said in Forman , at [17]: “ We consider the correct analysis of sections 117A and 117B to be as follows: (i) These provisions apply in every case where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under Article 8 ECHR and, as a result, would be unlawful under section 6 of the Human Rights Act 1998. Where a Court or Tribunal is not required to make this determination, these provisions do not apply. (ii) The so-called “public interest question” is “the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).”, which appears to embrace the entirety of the proportionality exercise. (iii) In considering the public interest question, the court or tribunal must have regard to the considerations listed in section 117B in all cases : per section 117A(1) and (2). (iv) In considering the public interest question in cases concerning the deportation of foreign criminals, the court or tribunal must have regard to the section 117B considerations and the considerations listed in section 117C. (v) The list of consid erations in sections 117B and 11 7C is not exhaustive: this is clear from the words in parenthesis “(in particular)”. (vi) The court or tribunal concerned has no choice: it must have regard to the listed considerations. ” The next passage in Forman foreshadows to some extent the issue raised under the banner of this ground of appeal: “ While the court or tribunal is clearly entitled to take into account considerations other than those listed in section 117B (and, where appropriate, section 117C), any additional factors considered must be relevant , in the sense that they properly bear on the “public interest question”. In this discrete respect, some assistance is provided by reflecting on the public law obligation to take into account all material considerations which, by definition, prohibits the intrusion of immaterial factors. We are not required to decide in the present case whether there is any tension between section 117A(2), which obliges the court or tribunal concerned to have regard to the list of considerations listed in section 117B and, where appropriate, section 117C and the contrasting terms of section 117B (5) and (6) which are framed as an instruction to the court or tribunal to attribute little weight to the two considerations specified .” 18. Next, in construing the provisions under scrutiny, certain observations about the structure and syntax of sections 117A and 117B are appropriate. The draftsman’s mechanism of enjoining a decision maker, whether it be a c ourt or t ribunal or other agency, to “ have regard to ” specified matters is of some longevity. It is long established that where this mechanism is employed, the corresponding duty is to obey the legislature ’ s instruction, that is to say the decision maker must have regard to the matter in question. In the typical statutory model, the legislature goes no further. Where this model is invoked this denotes the first stage in the exercise to be performed by the judge or decision maker . T he second stage is a product of the common law : it imports a duty to give such rational weigh t to the matters specified as the judge or decision maker consider s appropriate . W ithin this formulation lies the principle that in the generality of cases in volving decisions of this genre the barometer for judicial review , or appeal on a point of law, is the Wednesbury principle. See, for example, Tesco Stores v Secretary of State for the Environment and Others [1995] 1 WLR 759 . Lord Hoffmann ’s formulation of the principles at [56] – [57] and [ 68 ], while devised in a planning law context, applies generally . 19. The statutory model for which the legislature has opted in sections 117A and 117B is not the typical one. True it is that i ts first striking element is the familiar one of obliging the c ourt or t ribunal concerned to have regard to specified considerations: per section 117A(2). These obligatory considerations are then listed in sections 117B and 117C. As section 117C does not arise in this appeal, I say nothing more about it. As regards section 117B, there is a total of six “ considerations ”. Some of these have the dual identity of statutory considerations and legal principles, being readily traceable to both Strasbourg and domestic jurisprudence. The characteristic which links the “ considerations ” listed in section 117B(1), (2), (3) and (6) is that of the “ public interest ”. These provisions reflect the reality that the public interest is multi - layered and has multiple dimensions. Those aspects of the public interest which the legislature has identified as considerations to be taken into account as a matter of obligation are contained in these provisions. 20. In contrast, t he two “ considerations ” contained in section 117B(4) and (5) are somewhat different from the other four , in the following respects . First, they make no mention of the public interest. They are, rather, concerned with facts and factors which, while bearing on the proportionality assessment under Article 8(2) ECHR, shift the focus from the ambit of the public interest to choices and decisions which have been made by the person or persons concerned in their lives and lifestyles . Second, there is a degree of tension between a c ourt or t ribunal having regard to a specified factor , as a matter of obligation (on the one hand) and (on the other) giving effect to a Parliamentary instruction about the weight to be given there to. Indeed, in giving effect to section 117B(4) and (5), the c ourt or t ribunal concerned is not, in truth, performing the exercise of having regard to these statutory provisions. Rather, the Judge is complying with a statutory obligation, unconditional and unambiguous, to give effect to a parliamentary instruction that the considerations in question are to receive little weight. 21. All of the six factors contained in section 117B are properly seen as a rehearsal of well established principles of law and/or provisions of the Immigration Rules which have become familiar to all who practis e in this field . Furthermore, this discrete statutory model develops the increasingly familiar device of codifying and incorporating Article 8 principles in the Immigration Rules. In the Part 5A model the legislator s have taken a step further by giving expression to such principles in primary legislation. 22. I would add that I am satisfied that there is nothing in this analysis which promotes the Appellants’ argument. The elements of this analysis, interesting though they may be , are, ultimately, of little moment. True it is that t he drafting of the new statutory provisions is far from felicitous. A statutory exhortation to “ have regard to ” a consideration is not the same as a statutory instruction and corresponding obligation, to “ give little weight ” to a specified consideration. The infelicities of drafting in these particular provisions are not unique: section 117A(2), structurally and syntactically, suffers from comparable infelicities. The words in parenthesis “ (in particular) ” are detached from the position which they should ideal ly occupy and the distant separation of “ to ” from “ have regard ” similarly jars. However, while the drafting could undoubtedly have been better, I consider the underlying intention to be abundantly clear, expressed in unambiguous language. W hile the drafting of these critical statutory provisions wins no literary prizes, I consider that the substance of the duty imposed on c ourts and t ribunals by section 117A(2) admits of no doubt or ambiguity. 23. The argument advanced by Mr Malik on behalf of the Appellants explicitly acknowledges that if the statutory provisions under scrutiny are possessed of the clarity which I have found it must fail. It founders accordingly. To this I would add that there is no legal principle of which I am aware confounding the conclusion that an instruction by the legislature to a c ourt or t ribunal to attribute little weight to the matters specified in section 117B(4) and (5) either contravenes some constitutional norm or, in order to preserve the constitutional balance, must be construed as narrowly and strictly as possible and in a manner which unshackles the Judge from the constraints imposed. The United Kingdom , being one of those states which operates the so-called “ dualist ” doctrine, it is by statute that Article 8 forms part of the domestic law of this jurisdiction and it is by the same vehicle viz statute that Parliament has chosen to calibrate certain aspects of its operation in our legal system. I consider that th is gives rise to no constitutional trespass or imbalance. I further consider this analysis entirely consistent with the passages in the judgment of Laws LJ in Cart ( supra ) on which the Appellants rely. Ditto those in Evans ( supra ). My final conclusion is that the statutory provisions under scrutiny do not h ave the effect of abrogating or eclipsing any fundamental right or any principle of the rule of law. Every c ourt or t ribunal would be attributing little weight to the matters specified irrespective of the parliamentary instruction in primary legislation . Approach ed in this way, these new statutory provisions may be viewed both as a reinforcement of established principles, all Judge made and a reminder to Courts and Tribunals of the need to give effect to them. T