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(House of Lords; 21 March 2007, Lord Bingham of Cornhill, Lord Hoffmann, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton under Heywood)  The Times March 22
On an appeal where the claimant did not qualify for leave to enter and remain under the Immigration Rules, but relied on the family component of Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention), the role of the appellate authority was to decide whether the decision refusing leave to enter or remain was unlawful as incompatible with the Convention right. It was not a secondary, reviewing function dependent on establishing misdirection, irrationality or procedural impropriety by the primary decision-maker. The authority's first task was to establish the relevant facts, on an up-to-date basis: particularly if the claimant had not been interviewed, the authority was better placed to investigate the facts, test the evidence and evaluate the nature and strength of the family bond. The ultimate question for the appellate authority, where family life could not reasonably be expected to be enjoyed elsewhere, was whether the refusal, taking account of all considerations in its favour, prejudiced the claimant's family life sufficiently seriously to breach rights under Art 8. Where it did, the refusal was unlawful: there was no additional requirement that a case should meet a test of exceptionality, although it was expected that the number of claimants not covered by the Immigration Rules but entitled to succeed under Art 8 would be a very small minority.
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