Reassessing Proportionality: Implied Limitations and Judicial Review under Section 6 of the British Nationality Act 1981

Abstract

There exists a lively debate regarding whether proportionality outside of the European Convention on Human Rights is an independent ground for judicial review or overlaps with the Wednesbury Unreasonableness or irrationality ground and is indistinguishable from it.1 This Article contends that proportionality, as a fair balance test, is an implied limitation to a statutory power and, therefore, constitutes an independent test within section 6 of the British Nationality Act 1981 (BNA 1981). Consequently, if a decision is disproportionate, it is amenable to judicial review on the existing ground of illegality. In that case, it is not necessary to consider an independent Wednesbury unreasonableness or irrationality test.