Khalida Parveen v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Gloster,Lord Justice Underhill,Lady Justice Asplin |
| Judgment Date | 25 April 2018 |
| Neutral Citation | [2018] EWCA Civ 932 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2015/4372 |
| Date | 25 April 2018 |
[2018] EWCA Civ 932
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UTJ CANAVAN
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Gloster
(Vice President of the Court of Appeal (Civil Division))
Lord Justice Underhill
and
Lady Justice Asplin
Case No: C2/2015/4372
Zane Malik (instructed by Malik Law Chambers) for the Appellant
Vinesh Mandalia (instructed by the Treasury Solicitor) for the Respondent
Hearing dates: 30 th January 2018
INTRODUCTION
The Appellant is a Pakistani national now aged 44. She entered the UK on 25 May 2000 on a spouse visa by virtue of her marriage to a British national, Abdul Hamid. That leave expired on 25 May 2001. She failed to apply for leave to remain before that date. She eventually made such an application, thirteen years later, on 11 November 2014. That application was refused on 27 January 2015. She applied for permission to apply for judicial review of that decision, but permission was refused on the papers by UTJ Blum and at a hearing by UTJ Canavan. This is an appeal from that decision.
I should start by summarising the reasons given by the Secretary of State for refusing the Appellant's application. The decision letter starts by considering the application under the Immigration Rules, first in accordance with the family member provisions in Appendix FM and secondly in accordance with the private life provisions of paragraph 276ADE. It then proceeds to consider whether there are any exceptional circumstances requiring a grant of leave outside the Rules. I take the three elements in turn.
Appendix FM. In order to qualify for leave under the “partner route” the Appellant had to satisfy paragraph EX.1, and specifically limb (b). This applies where (so far as material):
“… 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 …, and there are insurmountable obstacles to family life with that partner continuing outside the UK”.
The Secretary of State accepted that the Appellant was in a genuine and subsisting relationship with Mr Hamid but she decided that there were no insurmountable obstacles to family life with him continuing outside the UK. This aspect of the decision is not the subject of any challenge, and I need not set out the detailed reasoning.
Paragraph 276ADE. The relevant provision of paragraph 276ADE is sub-paragraph (1) (vi) which applies where an applicant has lived continuously in the UK for less than 20 years and “there would be very significant obstacles to their integration in the country of return”. The Secretary of State found that there were no such obstacles: I give her reasons in full below.
Exceptional circumstances. As to this, the decision letter said:
“It has also been considered whether your application raises any exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules.
You have not raised any such exceptional circumstances, so it has been decided that your application does not fall for a grant of leave to remain outside the rules.”
The Appellant initially advanced three grounds of challenge to the Secretary of State's decision, but only two were pursued in the grounds of appeal to this Court, namely (in summary):
(1) that the Secretary of State's decision as regards paragraph 276ADE (1) (vi) was contrary to the guidance appearing in her own published Immigration Directorate Instructions; and
(2) that she had failed to give “an independent and proper consideration” to the claim under article 8 outside the Rules and that her decision was accordingly unlawful “on the guidance given in Singh and Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74 and PG (USA) v Secretary of State for the Home Department [2015] EWCA Civ 118.
Lindblom LJ gave permission on ground (1) on the basis that it raised a potentially important point about the correct approach to paragraph 276ADE (1) (vi) which had not previously been considered in this Court, although he discouraged the Appellant from expecting the appeal to succeed. In those circumstances he was prepared to give permission on ground (2) also, while observing that “its merits seemed slender at best”.
GROUND (1): PARAGRAPH 276ADE
The Background Law
Since the grant of permission this Court has had occasion to consider the meaning of the phrase “very significant obstacles to integration”, not in fact in paragraph 276ADE (1) (vi) but as it appears in paragraph 399A of the Immigration Rules and in section 117C (4) of the Nationality Immigration and Asylum Act 2002, which relate to the deportation of foreign criminals. In Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813, [2016] 4 WLR 152, Sales LJ said, at para. 14 of his judgment:
“In my view, the concept of a foreign criminal's ‘integration’ into the country to which it is proposed that he be deported … is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life.”
That passage focuses more on the concept of integration than on what is meant by “very significant obstacles”. The latter point was recently addressed by the Upper Tribunal (McCloskey J and UTJ Francis) in Treebhawon v Secretary of State for the Home Department [2017] UKUT 13 (IAC). At para. 37 of its judgment the UT said:
“The other limb of the test, ‘very significant obstacles’, erects a self-evidently elevated threshold, such that mere hardship, mere difficulty, mere hurdles and mere upheaval or inconvenience, even where multiplied, will generally be insufficient in this context.”
I have to say that I do not find that a very useful gloss on the words of the rule. It is fair enough to observe that the words “very significant” connote an “elevated” threshold, and I have no difficulty with the observation that the test will not be met by “mere inconvenience or upheaval”. But I am not sure that saying that “mere” hardship or difficulty or hurdles, even if multiplied, will not “generally” suffice adds anything of substance. The task of the Secretary of State, or the Tribunal, in any given case is simply to assess the obstacles to integration relied on, whether characterised as hardship or difficulty or anything else, and to decide whether they regard them as “very significant”.
The Secretary of State's Decision
The starting-point must be to identify the evidence put forward by the Appellant in her initial application to the Secretary of State which might potentially show the existence of very significant obstacles to her reintegration in Pakistan.
We were not shown the application form itself, which apparently contains nothing of substance. Mr Malik, who appears on the Appellant's behalf, relied on what is said in the covering letter from her solicitors, Malik Law Chambers (“MLC”). This does not in fact rely primarily on paragraph 276ADE, formulating the claim rather as being based on Appendix FM, alternatively on article 8 outside the Rules. In support of those claims the letter summarises the Appellant's immigration history and expatiates at some length, though with almost no particularity, on the degree of her integration into British society, the depth and extent of her friendships and social networks, and her law-abidingness and positive contributions to society; on the basis of all of which it is said that her life would be turned upside down by having to return to Pakistan. Despite one passing reference to paragraph 276ADE, there is no explicit attempt to address the requirements of sub-paragraph (1) (vi). There is, however, one passage which refers, albeit very summarily, to what life would be like for her in Pakistan. It reads:
“Our client does not wish to return to Pakistan and is extremely distressed at this prospect. Our client is worthy of this leave. She appreciates that you must protect your borders but she cannot return to a country with which she has now lost all connections. She absolutely has no-one to return to in Pakistan that can support her.”
The material part of the Secretary of State's decision letter reads as follows:
“It is not accepted that there would be very significant obstacles to your integration into Pakistan, if you were required to leave the UK. Whilst it is accepted that you may have some initial difficulty upon your return to Pakistan, it is noted that you are a healthy female aged 42 and whilst the material quality of your life in Pakistan may not be at the same level as it is in the United Kingdom, this does not give rise to any right to remain here.
Although you may experience a degree of temporary hardship, it is expected that these difficulties could be overcome, bearing in mind your common language and in particular,...
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