• In the case of Huang v Home Secretary 2007 UKHL 11, it was held that the correct test for human rights matters is proportionality, not Wednesbury or heightened scrutiny.
  • Giving weight to the assessment of decision makers does not amount to deference. It amounts rather that the decision maker might have some specialised knowledge to aid their assessment.

Facts of the Case

  • Two conjoined appeals were issued against a decision of the Court of Appeal on the proper approach to be taken by an adjudicator in an appeal where he was called on to determine whether the secretary of state’s decision to remove an asylum seeker from the United Kingdom was a disproportionate, and therefore unlawful, interference with that person’s right to respect for his private and family life under the European Convention on Human Rights 1950 Art.8.

Issues in Huang v Home Secretary 2007 UKHL 11

  • Was the Court of Appeal incorrect to find that the Home Secretary had violated article 8?

Held by House of Lords

  • Appeal allowed in part.

Lord Bingham

  • Held that when read purposively, the provisions in question made it plain that the task of the appellate immigration authority was to decide whether the challenged decision was unlawful as incompatible with a Convention right or compatible and so lawful.
  • The appellate immigration authority had to decide for itself whether the impugned decision was lawful and, if not, but only if not, reverse it.
  • The first task of the appellate immigration authority was to establish the relevant facts, and it should make its decision based on up-to-date facts. It was important that the facts were explored, and summarised in the decision, with care, since they would always be important and often decisive. The authority would wish to consider and weigh all that told in favour of the refusal of leave, with reference to justification under Art.8(2).
  • “Support was given to Lord Steyn’s opinion in Daly[2001] at [26]-[28] that neither the Wednesbury nor the heightened scrutiny test established In Ex p Smith [1996] had given adequate protections to convention rights, that proportionality was the correct approach, and that though proportionality was more ‘exacting’, it did not amount to merits review, as “it remains the case that the judge is not the primary decision maker,” [13]
  • “However, in contrast to courts, under s65, the adjudicators and Immigration Tribunal are not reviewing the decision of another decision-maker but deciding for itself whether it is unlawful to refuse leave to enter of remain”: [13]
  • “The giving of weight to [the judgment of decision makers] is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according to appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed.”: [16]
  • “The prevailing test was established in De Freitas [1999]: “whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”: [19]
  • A fourth element should be added to the test, concerning “the striking of a fair balance between the rights of the individual and the interests of the community”: [19]

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