Khan v The Advocate General for Scotland [2015] ScotCS CSIH_29 (17 April 2015)

Khan v The Advocate General for Scotland [2015] ScotCS CSIH_29 (17 April 2015)

The refusal decision was vitiated by failure to conduct a proper proportionality assessment under article 8 ECHR, and it cannot be said that a lawful assessment would inevitably have resulted in refusal; thus, the reclaiming motion is refused and the Lord Ordinary's interlocutor is adhered to.

Citation
[2015] ScotCS CSIH_29
Parties
Petitioner and Respondent: Muhammad Irfan Khan; Respondent and Reclaimer: The Advocate General for Scotland
Jurisdiction
Scotland
Judgment Date
17 April 2015
Procedural Posture
Judicial Review / Appeal (reclaiming Motion) From Lord Ordinary's Decision
Outcome
reclaiming motion refused; interlocutor of Lord Ordinary adhered to
Legal Topics
Leave to Remain, Article 8 ECHR, Proportionality, Immigration Rules, Judicial Review
Immigration Law Human Rights Law Public Law Leave to Remain Article 8 ECHR Proportionality Immigration Rules Judicial Review

Case Brief

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Parties

Muhammad Irfan Khan

Petitioner and Respondent

The Advocate General for Scotland

Respondent and Reclaimer

Procedural Posture

Judicial Review / Appeal (reclaiming Motion) From Lord Ordinary's Decision

Legal Issues

  1. 1 Whether refusal of leave to remain breached article 8 ECHR rights to private and family life
  2. 2 Whether the Secretary of State's decision failed to consider proportionality outside the Immigration Rules
  3. 3 Whether 'exceptional circumstances' are required where marriage occurred during precarious immigration status

Ratio Decidendi

The refusal decision was vitiated by failure to conduct a proper proportionality assessment under article 8 ECHR, and it cannot be said that a lawful assessment would inevitably have resulted in refusal; thus, the reclaiming motion is refused and the Lord Ordinary's interlocutor is adhered to.

Court Disposition

reclaiming motion refused; interlocutor of Lord Ordinary adhered to

Orders

  • Reduction of both refusal letters (first and second refusal letters) upheld
  • Secretary of State's refusal decisions quashed