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(Queen's Bench Division (Administrative Court); Blake J; 14 May 2008)
An unsuccessful Vietnamese male applicant for refugee status applied for and was granted leave to marry a successful Vietnamese female applicant for refugee status who was expecting his child. After the marriage the male applicant sought leave to remain in the jurisdiction on the basis of his family life, but this was refused; instead his removal to Vietnam was authorised. The Secretary of State's decision letter asserted that there had been no fresh claim and that there was therefore no appeal. The male applicant sought judicial review of the decision. The child had now been born; the mother had been diagnosed with tuberculosis, but was now out of hospital and was supporting the family.
This was clearly a fresh claim; the Secretary of State could only have concluded it was not if, taking the claim at its highest, it had had no realistic prospect of success. In Huang v Secretary of State for the Home Department  EWCA Civ 105 the House of Lords expressly rejected the proposition that the Immigration Rules and supplementary instructions struck the proper balance for the purpose of European Convention on Human Rights, Art 8(2). It was a premise of the statutory scheme that an applicant might fail to qualify under the Rules and yet have a valid claim by virtue of Art 8. This did not mean that the balance struck by the Rules was irrelevant, but that any aspect of the Immigration Rules, when brought to bear upon a particular set of circumstances, would have to take into account the particular facts, and the fact that in certain circumstances the removal of a family member from his spouse (and particularly minor children) could be disproportionate. Given that the wife was unable to return to Vietnam the decision would disrupt and rupture a family life that had been established with the express consent of the Secretary of State, and had been enjoyed for at least 2 years. Further, the wife was still quite seriously ill and there was a young child involved.
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