Matthew Howarth, Led By Zane Malik KC, Successfully Defends The Secretary Of State For The Home Department In Article 8 Human Rights Case
Matthew Howarth, led by Zane Malik KC, successfully defended the Secretary of State for the Home Department, the case presented complex legal questions surrounding Article 8 of the European Convention on Human Rights and how foreign criminal convictions should be treated under UK Immigration Rules.
Case Background
The ten-day hearing, held in March 2025, involved a mother and child challenging the refusal of their Tier 1 (Investor) visa applications.
The case presented complex legal questions surrounding Article 8 of the European Convention on Human Rights and how foreign criminal convictions should be treated under UK Immigration Rules.
A number of expert witnesses were called to give evidence including a former director of the Federal Bureau of Investigation (FBI)
Legal Challenge
The appellants argued that their Article 8 rights were engaged and that the criminal convictions from Kuwait, upon which the refusal was based, were unsafe and resulted from malicious prosecutions.
They claimed the proceedings were motivated by commercial, political, and sectarian factors.
The tribunal was required to determine three critical questions:
- Whether Article 8 was engaged in the circumstances If engaged,
- Whether the decision was in accordance with the law,
- Whether the decision was justified, necessary and proportionate
Tribunals Decision
Judge Beach delivered a comprehensive judgment that included several notable findings:
On Article 8 Engagement: The judge concluded that Article 8 was not engaged, finding that “the evidence provided by the appellants is simply insufficient to show that they had established a private life in the UK and that the application which led to this appeal was an application which, in effect, sought to establish rather than continue a private life in the UK”.
On Foreign Convictions: Despite dismissing the appeals, Judge Beach made significant observations about the Kuwaiti criminal proceedings, stating that “the appellants have shown that the prosecutions were malicious prosecutions for a variety of motives and that the convictions were unsafe convictions”.
On Proportionality: The judge conducted a hypothetical proportionality assessment, concluding that even if Article 8 had been engaged, there would have been concerns about the proportionality of the decision given the unsafe nature of the convictions.
Key Legal Principles
The SSHD’s submissions focused on the fundamental principle that Article 8 does not create a positive obligation on the state to allow individuals to enter the UK to establish a private life, distinguishing this case from those involving settled migrants seeking to return.
Significance
This case provides important guidance on several areas of immigration law: Article 8 thresholds in entry clearance applications Assessment of foreign criminal convictions in UK immigration decisions Mandatory refusal provisions under the Immigration Rules Expert evidence standards in complex immigration cases.
The judgment demonstrates the tribunal’s willingness to examine the safety of foreign convictions while maintaining that this does not automatically override mandatory Immigration Rules provisions.
Outcome
Both appeals were ultimately dismissed, with the tribunal finding that Article 8 was not engaged despite acknowledging serious concerns about the underlying criminal convictions.
The case demonstrates the complex interplay between human rights law, immigration policy, and international judicial standards.
Appeal Numbers: HU/55902/2022, HU/55903/2022