Asif Ali Ashiq For Judicial Review Of A Decision Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord McGhie,Lord Menzies |
| Judgment Date | 28 April 2015 |
| Neutral Citation | [2015] CSIH 31 |
| Published date | 28 April 2015 |
| Docket Number | P101/13 |
| Court | Court of Session |
| Date | 28 April 2015 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 31
P101/13
Lord Menzies
Lady Smith
Lord McGhie
OPINION OF THE COURT
delivered by LADY SMITH
in the petition
by
ASIF ALI ASHIQ
Petitioner and Respondent;
for judicial review of a decision of
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent and Reclaimer:
Petitioner and Respondent: Dewar QC, Winter; Drummond Miller LLP
Respondent and Reclaimer: Webster; Office of the Advocate General
28 April 2015
Introduction
[1] This reclaiming motion concerns the approach taken by the Secretary of State for the Home Department to a claim in a fresh application that removal of an applicant from the country would amount to a disproportionate interference with the family life he has with his wife, who is resident in Glasgow: article 8 ECHR. The question for this court is: did the Lord Ordinary err when deciding that the Secretary of State’s rejection of the application should be set aside?
The “new” Immigration Rules (HC 194)
[2] Before considering the particular facts and circumstances of the present case, it is important to understand the context in which the petitioner’s application was made. At the time of the application under consideration – the “fresh” application referred to below – new Immigration Rules had come into force which were intended to cover circumstances where an applicant for leave to enter or remain in the country relied on article 8 ECHR. They were promulgated on 13 June 2012 and came into force on 9 July 2012: see Statement of Changes (HC 194). For an explanation of the constitutional status of the new rules, we would refer to the discussion by this court in paragraphs 19 to 22 of the opinion of the court in MS v Secretary of State for the Home Department [2013] CSIH 52, delivered by Lord Mackay of Drumadoon.
[3] Paragraph 115 of HC 194 provides for the insertion of “Appendix FM” which relates to “Family Members”. The Secretary of State’s general intention is explained at paragraph “GEN.1.1”:
“This route is for those seeking to enter or remain in the UK on the basis of their family life with a person who is a British Citizen, is settled in the UK, or is in the UK with limited leave as a refugee or person granted humanitarian protection. It sets out the requirements to be met and, in considering applications under this route, it reflects how, under Article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic well- being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others. It also takes into account the need to safeguard and promote the welfare of children in the UK.”
There are, thereafter, detailed provisions specifying matters potentially material to a family life claim; applicants may be able to establish a right to remain if they can show they fall within those provisions. The rules are detailed and extensive. It is clear that they attempt to cover a wide range of circumstances. They also, in their own terms, leave scope for individual assessment (MF(Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544, Lord Dyson MR, at paragraph 20).
[4] The rules cannot, however, be construed as providing a complete code for all article 8 claims: MS v Secretary of State for the Home Department; MF (Nigeria) v Secretary of State for the Home Department). Facts and circumstances are bound to arise from time to time which were not expressly foreseen by the drafters of the rules yet are such as might, on an application of article 8, require the grant of a right to remain. The rules do not dispense with the duty, under primary legislation (the Human Rights Act), of those who make decisions about family life claims to comply with the provisions of the convention. Nor could they properly have done so; their exposure to the democratic process, as explained in MS, was limited. Thus, if a family life claim arises and it does not qualify under the rules, the Secretary of State must nonetheless consider it, in implement of her statutory duty.
[5] But how is a decision maker to do that and to show that, when reaching his decision, he recognised and understood his article 8 duties? How is he to show that he did not confine himself to an application of the rules? The answer has been discussed in a number of recent cases (Izuazu (Article 8 – new Rules) [2013] UKUT; R (Nagre) v Home Secretary [2013] EWHC 720 (Admin); MS v Secretary of State for the Home Department; Singh v Secretary of State for the Home Department, Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74). These discussions refer to there being two stages – first, consideration of whether the applicant can bring himself within the new rules and then, secondly, whether, considering article 8 separately from the rules, leave to remain should be granted. Equally, however, as the discussions have progressed, it has been made clear that it is not a formulaic approach that is required. The point is, rather, one of substance. The decision maker needs to show that the application has been considered by reference to the rules and that it has also been considered simply by reference to article 8 but the need is for him to do that, not to do it in a particular way. No doubt consideration by reference to the rules will normally take place first. If it is not decided that leave to remain can be granted on that basis, the decision maker will then need to address article 8. It may be that, at that stage, the decision maker concludes that any family or private life issues raised have in fact already been fully addressed at the first stage in which case, adopting the language of Underhill LJ in Singh v Secretary of State for the Home Department at paragraph 66, “obviously there is no need to go through it all again” and all that will be necessary is for the decision maker, “to say so”. There will be no need to conduct a full separate examination of the facts on an application of article 8 outside the rules if all the relevant issues have already been addressed in the consideration under the rules.
[6] An issue arose before us, albeit somewhat tangentially, as to whether there is an intermediary test – between consideration under the Rules and consideration outside the rules – involving the decision maker deciding whether the application includes a “good arguable case” that leave should be granted on article 8 grounds, outside the Rules and only if he concludes that it does, going on to assess that claim. The discussions in paragraph 30 of MS and paragraphs 29 - 30 of Nagre might be thought to suggest that there is an entirely separate stage involving such a test. In MM (Lebanon) v Secretary of State for the Home Department [2014] EWCA Civ 985, Aikens LJ said, at paragraph 129, that he could not see much utility in imposing such a further, intermediary, test; if the applicant cannot satisfy the rules, then there either is or there is not a further article 8 claim and that will have to be determined by the relevant decision-maker. We agree. That is what, essentially, was clarified in Izuazu, MS, and MF and we do not read the references to “good arguable case” as imposing another separate hurdle to be overcome by an applicant. The reference to “good arguable case” must, we consider, be read as referring to the need for it to be evident from the terms of the application that an article 8 issue arises. For the avoidance of doubt, we do not read it as, in a fresh application case, detracting from the terms of Rule 353 (see below). It does not raise the bar any higher than the need for there to be “realistic prospects” of the claim succeeding. That was recognised by the court in MS where, having discussed whether the petitioner had presented a good arguable case, it observed that, in concluding that there was no realistic prospect of the claim succeeding before an immigration judge, the Lord Ordinary had “taken in the ambit of the test that we have adopted.” (at paragraph 36)
[7] Following the decision of the Upper Tribunal in MF and in Isuazu, although she did not agree that there was any need for an express assessment of article 8 outside the rules, the Secretary of State considered it prudent, in certain applications which had already been considered under the new rules, to carry out an assessment expressly by reference to article 8. She issued further letters in these cases, explaining that she had done so and advising of the outcome. Such a letter was issued in this case: see the “second letter” referred to below.
Background
[8] Mr Ashiq (“the petitioner”) is a Pakistani national. He has been in the UK for a number of years but has not been granted leave to enter or leave to remain. He arrived here illegally in 2003, 2004 or possibly in 2005. He claimed asylum when he was arrested for a road traffic offence in 2010. His asylum claim has been rejected by the Secretary of State on four occasions and, on appeal, by two separate First–tier Tribunal judges.
[9] The petitioner also claims he has family life in the UK because he has married a woman who lives here. He is said to have met her in a shop on 1 August 2011. He married her on 30 August 2011, when he knew his immigration status was precarious; by that date, the Secretary of State had refused his applications on three separate occasions – the most recent of which was by letter dated 4 June 2011 - and he had been unsuccessful in an appeal to the First‑tier Tribunal. He had not appealed to the Upper Tribunal and he had, at the time of the present application, no outstanding applications or appeals.
[10] The petitioner is said to have lived with his wife since their marriage. She is also a Pakistani national but was granted indefinite leave to remain in...
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