[2025] UKUT 00092 (IAC)

I reject Mr Buttler’s submission that Article 8 was engaged by the 12 December decision. Properly understood, XY does not require a different conclusion.

For Article 8(1) to be engaged by a decision of the Secretary of State, there must be a causal link between the decision and its consequences for the individual concerned of sufficient severity to engage the protection of the article. The classic formulation of this test may be found in Razgar [2004] UKHL 27 at para. 17. Lord Bingham’s summary is expressed in the context of a removal decision, but the considerations apply with equal force to other decisions: for “proposed removal”, question one should be read as referring to the 12 December decision. The five questions are:

“(1)

Will the proposed removal [the 12 December decision] be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?

(2)

If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(3)

If so, is such interference in accordance with the law?

(4)

If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(5)

If so, is such interference proportionate to the legitimate public end sought to be achieved?”

The 12 December decision did not have the effect of exposing the applicant to any of the consequences that he claims led to the engagement of Article 8. The applicant was already exposed to the consequences of the so-called ‘hostile environment’ on account of his status as an overstayer. He enjoyed no ECAT-based entitlement to be granted MS leave. It was not, therefore, the 12 December decision which had the effect of continuing his exposure to the hostile environment, but a combination of his status as an overstayer and the Secretary of State’s inaction on his (separate) Article 8-based human rights claim, which he made on 8 July 2018. The applicant’s true complaint is that the Secretary of State had not taken a timely decision in response to his Article 8 family life human rights claim made on that date. Other than raising the issue of delay in pre-action correspondence on 23 February 2023, the applicant has not brought proceedings to challenge the alleged unlawful delay in the consideration of his Article 8 claim.

It is important to approach this analysis on the footing that the 12 December decision was not unlawful as a matter of public law. For the reasons set out above, it was consistent with Article 14(1) of ECAT, and to the extent it was the Secretary of State’s policy to act consistently with those requirements, that policy objective was met. That is significant because it demonstrates that, in contrast to the position in XY, there was no underlying ECAT-based or public law unlawfulness in the decision of the Secretary of State. It was common ground that the applicant in XY was entitled to MS leave, since he had been granted MS leave shortly before proceedings were commenced. Lane J held that the Secretary of State had adopted a secret policy which materially departed from her published policy, whereby her officials were instructed not to issue MS decisions. Moreover, such decisions, when taken, were unlawfully served to the file, rather than on the applicant, thereby depriving him of the opportunity to challenge the decision. Accordingly, the Secretary of State’s unlawful actions directly deprived the XY of the very leave which the Secretary of State later accepted that he was entitled to. In those circumstances, the effect of the continued exposure to the hostile environment was directly and causally linked to the unlawful MS leave decision. By contrast, in these proceedings, I have held that there has been no such unlawfulness, and therefore no causal link.

This analysis is therefore entirely consistent with that contained in XY.

I therefore find that the 12 December decision did not have the effect of continuing the applicant’s exposure to the hostile environment, or otherwise adversely impacting his private or family life in the UK. It did not surpass the first Razgar hurdle because it did not expose the applicant to any adverse consequences to which he was not otherwise legitimately exposed to (subject to any claim for unlawful delay in the determination of his human rights claim, a matter on which I express no view). At its highest, the 12 December decision did not confer on the applicant a benefit to which he was not entitled, and simply enabled the status quo to continue.

In the alternative, if Article 8 was engaged, then any interference with the applicant’s private and/or family life by the 12 December decision was plainly justified for the purposes of the “in accordance with the law” limb of Article 8(2), for the reasons set out under my analysis of issues (1), (2) and (3), above.