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Following the passing of the Human Rights Act in the UK and where a breach of a Convention right was alleged, the British courts were now required to use the criterion or test of proportionality to assess whether there had in fact been a breach.

In one of the early cases taken after the coming into force of the Act, Daly v. The Home Secretary,15 Lord Steyn said in the House of Lords that the new test required “the reviewing court to assess the balance which the decision maker has struck, not merely whether it was within the range of rational or reasonable decisions.”  He added that this may require attention to be directed to the relative weight accorded to interests and considerations

In the case of Baiai v. The Home Secretary16  in 2006, Silber J. in the High Court summarised with approval the test that Lord Steyn had set out in Daly, which required the court to consider 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.”

Since Daly there has been animated debate among UK lawyers about whether the courts in Judicial Review cases are entitled to review the merits of the impugned decision and the degree of deference that should be accorded to decision makers, but there is no doubt that as Lord Justice Laws said in the Court of Appeal in the case of Huang v. The Home Secretary17 in 2005: “In the new [post Human Rights Act] world the decision maker is obliged to accord decisive weight to the requirements of pressing social need and proportionality.” Effectively, in this new world, the reviewing court must assess whether the decision maker has fulfilled this obligation.

It seems likely that the Irish courts will have to follow a fairly similar course when Convention issues begin to come before them in significant numbers.

The recent (May 2007) decision by the UK Court of Appeal in the Baiai case (already referred to) gives an illustration of how the proportionality test works in practice.18

The case concerned a provision of UK asylum and immigration law that required non-EEA nationals who did not have a right to residence in the UK to obtain the permission of the Home Secretary to get married.  The scheme was intended to stop marriages of convenience aimed at securing leave to remain in the UK.  The applicants challenged the provision on the basis that it was in breach of Article 12 of the European Convention

15 R(Daly) v. Secretary of State for the Home Department [2001] UKHL

16 Baiai & Others v. Secretary of State for the Home Department [2006]  EWHC  823

17 Huang v. Secretary of State for the Home Department [2005] EWCA Civ 105

18 Secretary of State for the Home Department v. Baiai & Others [2007] EWCA Civ 478; 1 WLR 693

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