Mr Gulshahazez Ahmed Mirza (ap) Against The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord Brodie,Lord Eassie |
| Judgment Date | 17 April 2015 |
| Neutral Citation | [2015] CSIH 28 |
| Published date | 17 April 2015 |
| Date | 17 April 2015 |
| Court | Court of Session |
| Docket Number | P594/13 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 28
P594/13
Lord Eassie
Lord Brodie
Lady Clark of Calton
OPINION OF THE COURT
delivered by LORD EASSIE
in the reclaiming motion
by
MR GULSHAHABAZ AHMED MIRZA (AP)
Petitioner and Reclaimer;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
Petitioner and Reclaimer: Lindsay, QC, Winter; Drummond Miller LLP (for Gray & Co, Glasgow)
Respondent: Webster, Maciver; Office of the Advocate General
17 April 2015
Introductory
[1] In this petition for judicial review the petitioner challenges a decision taken on behalf of the Secretary of State for the Home Department refusing the petitioner leave to remain in the United Kingdom as the husband of his wife, who is a British citizen. The notice of that decision was initially given on 22 January 2013 but during the dependency of the petition in the Outer House the Secretary of State issued a fresh decision, following an invitation to her to reconsider matters. That new decision also refused leave. It is contained in an undated letter received by the petitioner’s solicitors on 19 November 2013. Parties were agreed that that letter – “the November letter” – superseded the notice of 22 January 2013. By interlocutor pronounced on 4 December 2013 the Lord Ordinary refused the petition[1]. The reclaiming motion is brought against the Lord Ordinary’s refusal of the petition.
[2] The petitioner, who was born in 1976, is a citizen of the Republic of Pakistan. On 2 April 2004 he came to the United Kingdom on a workholder visa which expired on 17 March 2005. He did not apply for any extension of that permission but remained in the United Kingdom. In June 2004 he met Tracy Grant, the lady who is now his wife. They met by chance when he boarded a bus in Govanhill and sat next to her. The acquaintanceship made initially on that bus journey continued thereafter. The petitioner and Miss Grant discussed marriage and they became engaged to marry in 2009. They began to live together in February 2010 in a flat which they rented in Glasgow. On 10 May 2010 the petitioner applied to the Secretary of State for the Home Department for permission to marry Miss Grant. Some nine months later, on 20 February 2011, the Secretary of State granted that permission and the marriage duly took place in Hamilton 18 June 2011. There is no suggestion that the marriage – which continues – is other than entirely genuine. The petitioner and his wife are anxious to have a child. A pregnancy miscarried and the petitioner’s wife is approaching an age at which female fertility normally diminishes.
[3] As already mentioned, the petitioner’s wife is a British citizen. She has lived all her life if not in Scotland at least in the United Kingdom. Her family are British. She works as a support worker in a care home in the Glasgow area.
The Immigration Rules
[4] It is not in dispute that the petitioner is unable to bring himself within the requirements of the particular provisions of the Immigration Rules (HC395) published by the Secretary of State which apply where leave is sought to remain in, or enter, the United Kingdom as the spouse of a British citizen or a person settled in the United Kingdom.
[5] The reasons for that are set out relatively fully in the November letter. Put very briefly, the provisions which applied in February 2012 when the petitioner made his application for leave – paragraph 284 of HC395 – did not avail him because of subparagraph (iv) of paragraph 284 which required that the petitioner had not “remained in breach of any immigration laws, disregarding any period of overstay for a period of 28 days or less”. With effect from 9 July 2012, HC395 was supplemented by the addition of appendix FM. The relevant section of that appendix was section R-LTRP. For various reasons – principally the petitioner’s inability to meet E-LTRP 2.2 by virtue of his having previously overstayed – were he to be granted leave in accordance with the Immigration Rules, the petitioner required to satisfy the terms of paragraph EX1(b).
[6] Paragraph EX1(b) provides:
“(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”.
The Secretary of State decided that there were no such “insurmountable obstacles”. The November letter states:
“It is accepted that your client is in a genuine and subsisting relationship with a British Citizen however it is not accepted that there are insurmountable obstacles to the relationship continuing outside of the UK. Little, if any, evidence has been provided which establishes that there are insurmountable obstacles to their relationship continuing in Pakistan. The fact that your client's spouse is a British Citizen is not an insurmountable obstacle to the relationship continuing outside the UK. It is clear that there are expatriate British Citizens living in Pakistan.
It is acknowledged that your client's spouse is in employment in the UK as a support worker and that if she chose to join her husband in Pakistan, that she would have to leave her employment. English is one of the principle languages in Pakistan and no reason has been put forward about why either your client or his spouse could not obtain employment there in order to support their household.
It is also acknowledged that your client's spouse has a home in the UK that she rents with her husband. Accordingly, the selling of the family home, should they continue their family life in Pakistan, is not an issue. It seems clear that your client still has family in Pakistan who could no doubt provide accommodation to the couple in the short to medium term. There is no evidence that any of his family members are against their marriage given the attendance at the ceremony of his two brothers.
It is also acknowledged that your client's spouse, should she choose to continue her family life with her husband in Pakistan, would be required to leave family and friends in the UK behind. It is not considered that no matter how upsetting this might be for her that this amounts to an insurmountable obstacle. There would be no reason why such relationships (which are unlikely to amount to family life in the legal sense) could not be maintained through modern forms of communications and visits. There is, for example, no evidence of particular family circumstances which may present such an obstacle. There is also no evidence of health concerns on the part of your client's spouse which may establish same.
No evidence has been put forward particular to your client which suggests that there would be insurmountable obstacles to the relationship continuing in Pakistan.”
Article 8 ECHR
[7] However the fact that the petitioner did not come within the provisions for granting leave in terms of HC395 is of course not the end of the matter since the Secretary of State is yet required to consider whether refusing the petitioner leave to remain would place the United Kingdom in breach of its obligations under article 8 of the European Convention on Human Rights – “ECHR”- (right to private and family life).
[8] The decision letter went on to give some consideration to that issue. First, the author of the letter considered whether the petitioner’s application might succeed in meeting the requirements of paragraph 276ADE of HC395, which related to certain aspects of private and family life. He concluded that the petitioner did not meet those requirements for the reason that the petitioner neither met the requirement of having lived for more than 20 years in the United Kingdom or the requirement of having no ties (including social, cultural or family) in another country, namely Pakistan.
[9] Since the provisions of paragraph 276 ADE are also not the end of the matter in the consideration of article 8 ECHR, the author of the November decision letter then proceeds:
“Finally, consideration has been given to whether leave should be granted outside of the Immigration Rules. In doing so consideration has been given to the guidance given by the Inner House in MS..”
Having quoted in part paragraph [30] of MS (India) v Secretary of State for the Home Department [2013] CSIH 52, the letter continues:
“There is no evidence that your client has a good arguable case that refusal of leave to remain would lead to unjustifiably harsh consequences. It is clear that your client's relationship with his spouse was formed at a time when his status here was extremely precarious. Both your client and his spouse must have had an appreciation when they married that they may not be allowed to carry on their family life in the UK. Article 8 does not give couples an inalienable right to choose where they carry on their family life. Your client also overstayed for 5 years before bringing himself to the attention of the Home Office. It is also more likely than not that he worked illegally at times in order to support himself during that period. Illegal working causes harm in our society,
Whilst your client met his spouse in 2004 it appears to be the case that they did not begin dating until 3 years later. It wasn't until February 2010 that they began living together. Accordingly, whilst they may have been in a relationship of some kind since 2007 it arguably was not until 2010 that it could conceivably have been a relationship protected by Article 8. Family life, therefore, has arguably not existed between your client and his spouse until the last three years which is not so long that of itself removal would be an unjustifiably harsh outcome. However, the fact that the relationship appears to be a genuine one, that it has lasted for 6 years in one form or another and that should it continue in Pakistan your client's wife will lose the society of her friends and...
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