Cathrine Lal v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton MR,Lady Justice Asplin,Lord Justice Leggatt |
| Judgment Date | 08 November 2019 |
| Neutral Citation | [2019] EWCA Civ 1925 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2018/0603 |
| Date | 08 November 2019 |
[2019] EWCA Civ 1925
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Storey
HU/2750/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lady Justice Asplin
and
Lord Justice Leggatt
Case No: C5/2018/0603
Amanda Jones (instructed by Prime Law Solicitors) for the Appellant
Zane Malik (instructed by the Government Legal Department) for the Respondent
Hearing date: 17 October 2019
Approved Judgment
Sir Terence Etherton MR, Lady Justice Asplin and
This case raises issues about when refusing the partner of a British citizen leave to remain in the United Kingdom violates their rights to respect for their family life.
Relevant dates
The appellant, Ms Cathrine Lal, is an Indian national born in 1984. She arrived in the UK on 24 January 2011 with entry clearance as a Tier 4 (General) Student valid until 10 January 2013. Her leave to remain was subsequently extended until 19 April 2015.
On 12 December 2014 Ms Lal married a British citizen, Mr Keith Wilmshurst. On 17 April 2015 she applied for leave to remain in the UK on the basis of her relationship with him.
Leave to remain as a partner
Rules laid down by the Secretary of State as to the practice to be followed in considering applications for leave to remain in the UK on the basis of family life with a person who is a British citizen (or settled in the UK or in the UK with leave as a refugee or humanitarian protection) are contained in Appendix FM to the Immigration Rules.
Section R-LTRP of Appendix FM sets out the requirements to be met for leave to remain as a partner. These include suitability requirements relating to matters such as the applicant's criminal record, and also eligibility requirements. The eligibility requirements are set out in Section E-LTRP. This has four parts which are concerned, respectively, with the applicant's relationship, immigration status, financial means and ability to speak English.
An applicant who meets all of the eligibility requirements of Section E-LTRP (as well as the other requirements specified in Section R-LTRP) qualifies for leave to remain under the “five year route” – so called because an applicant who is granted leave to remain on this basis is eligible after five years to apply for indefinite leave to remain in the UK. Alternatively, an applicant will qualify for leave to remain under the “ten year route” if (as well as the other requirements specified in Section R-LTRP) he or she meets the relationship and certain of the immigration status requirements of Section E-LTRP and if, in addition, an exception set out in paragraph EX.1. applies. An applicant who is granted leave to remain under this route is eligible after ten years to apply for indefinite leave to remain in the UK.
The relationship requirements, which are set out in paragraphs E-LTRP.1.1. to E-LTRP.1.12. and which all applicants must satisfy, include the following:
“E-LTRP.1.7. The relationship between the applicant and their partner must be genuine and subsisting.
…
E-LTRP.1.10. The applicant and their partner must intend to live together permanently in the UK …”
The immigration status requirements, which also apply in all cases, are set out in paragraphs E-LTRP.2.1. and E-LTRP.2.2. At the relevant time these paragraphs stated as follows:
“E-LTRP.2.1. The applicant must not be in the UK —
(a) as a visitor; or
(b) with valid leave granted for a period of 6 months or less …
E-LTRP.2.2. The applicant must not be in the UK —
(a) on temporary admission or release, unless paragraph EX.1. applies; or
(b) in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1. applies.”
Paragraphs EX.1. and EX.2. are in these terms (with the most pertinent provisions highlighted):
“ EX.1. This paragraph applies if —
(a)
(i) the applicant has a genuine and subsisting parental relationship with a child who—
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and
(ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK; or
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.
EX.2. For the purposes of paragraph EX.1.(b) ‘insurmountable obstacles’ means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”
The rules set out in Appendix FM are intended to reflect the duty of the UK under the European Convention on Human Rights – and of UK public authorities under the Human Rights Act 1998 – to act compatibly with the right to respect for family and private life guaranteed by article 8 of the Convention. But it is recognised by the Secretary of State that, in exceptional circumstances, it is necessary to grant leave to remain in the UK in order to act compatibly with article 8 even though the applicant does not meet the standard requirements of Appendix FM.
Since August 2017 the obligation to consider whether there are exceptional circumstances requiring leave to be granted on article 8 grounds has been contained in the Immigration Rules themselves. But at the time of Ms Lal's application, this element of the Secretary of State's policy was embodied in instructions issued to officials. The version then current was “Immigration Directorate Instruction, Family Migration: Appendix FM Section 1.0b”, published in July 2014. This stated:
“In every case that falls for refusal under the Immigration Rules, the decision maker must go on to give full consideration to whether there are any exceptional circumstances.”
The following further explanation was given:
“‘Exceptional’ does not mean ‘unusual’ or ‘unique’. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1. of Appendix FM have been missed by a small margin. Instead, ‘exceptional’ means circumstances in which refusal would result in unjustifiably harsh consequences for the individual or their family such that refusal of the application would not be proportionate under article 8. … Cases that raise exceptional circumstances that warrant a grant of leave outside the rules are likely to be rare.”
In R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11; [2017] 1 WLR 823, paras 54–60, the Supreme Court approved almost identical guidance contained in the previous version of the Secretary of State's instructions to officials as consistent with the case law of the European Court of Human Rights.
The Secretary of State's decision
Ms Lal's application was refused by the Secretary of State in a letter dated 7 July 2015. The sole reason given for deciding that Ms Lal did not meet the requirements of Appendix FM for leave to remain as a partner under either the five year route or the ten year route was that the Secretary of State did not accept that the relationship between Ms Lal and her husband was genuine and subsisting and that they intended to live together permanently in the UK. The Secretary of State accordingly concluded that Ms Lal did not meet the requirements of paragraph E-LTRP.1.7. or paragraph E-LTRP.1.10. of Appendix FM. As regards the ten year route, the Secretary of State also concluded that, because Ms Lal's relationship with her husband was not genuine and subsisting, paragraph EX.1. did not apply in her case.
In addition, the refusal letter said that Ms Lal's application did not raise any exceptional circumstances which warranted granting leave to remain on article 8 grounds outside the Immigration Rules.
Appeal to the First-tier Tribunal
Ms Lal appealed from the Secretary of State's decision to the First-tier Tribunal (Immigration and Asylum Chamber) (the “FTT”).
Since April 2015 there has been no right of appeal to the tribunal on the ground that the Secretary of State's decision was not in accordance with the Immigration Rules. The only relevant right of appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014) in a case of this kind is from the decision of the Secretary of State to refuse a “human rights claim” – defined in section 113 of the 2002 Act as a claim made by a person to the Secretary of State that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998.
On such an appeal the task of the tribunal is to decide whether requiring the appellant to leave the UK is compatible with article 8 (and not merely to review the Secretary of State's decision). Nevertheless, the Immigration Rules and associated guidance are highly relevant to the tribunal's task because they reflect the responsible Minister's general assessment of when interference with the right to respect for private and family life is justified under article 8(2) on the basis of legitimate public interests. As explained by the Supreme Court in R (Ali) v...
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