Muhammad Arslan Khan Appellant Against The Secretary of State for The Home Department Respondent
| Jurisdiction | Scotland |
| Judgment Date | 03 March 2016 |
| Neutral Citation | [2016] CSIH 13 |
| Docket Number | No 32 |
| Date | 03 March 2016 |
| Court | Court of Session (Inner House) |
[2016] CSIH 13
First Division
Upper Tribunal (Immigration and Asylum Chamber)
Immigration — Marriage to UK national — Whether UK national obliged to relocate — Whether breach of human rights of married couple — Whether correct test applied — Whether all relevant factors considered — European Convention on Human Rights and Fundamental Freedoms, Art 8
The appellant was a Pakistani national. He arrived in the United Kingdom in January 2011 on a student visa, but the college in which he was studying was closed in May 2011. The appellant remained in the United Kingdom. In January 2013 the appellant married a British national. On 16 September 2013 the appellant applied for leave to remain on the basis of family life. On 8 October 2013 the Secretary of State refused that application. An appeal, on the basis that the Secretary of State's decision involved a disproportionate interference with the appellant's rights under Art 8 of the European Convention on Human Rights and Fundamental Freedoms, was dismissed by the First-tier Tribunal (“FTT”). The Upper Tribunal dismissed an appeal against the FTT's decision.
On appeal to the Court of Session, the appellant argued that: (1) respect for the appellant's wife's rights as a British national and EU citizen required the FTT to assess proportionality on the assumption that the couple would be separated, as the appellant's wife ought not to be expected to accompany the appellant on return to his country of origin; and (2) the FTT had wrongly treated the question of whether insurmountable obstacles existed to the relationship continuing abroad as a test which, if such obstacles were absent, meant the decision was proportionate.
Held that: (1) where the relationship was formed when the appellant's immigration status was precarious, weighty factors were required to overcome the normal result in such cases that the application for leave should be refused (paras 1, 16, 19); (2) proportionality should not be assessed on any assumption that an applicant will (or will not) return without their partner (para 18); (3) the FTT had not regarded the presence or absence of insurmountable obstacles as a test (para 23); and appeal refused.
Mirza v Secretary of State for the Home DepartmentSC 2015 SC 572 explained, R (on the application of Agyarko) v Secretary of State for the Home DepartmentWLR[2016] 1 WLR 390approved and Jeunesse v NetherlandsHRC(2015) 60 EHRR 17followed.
Muhammad Arslan Khan appealed against a decision of the Secretary of State for the Home Department on 8 October 2013 to refuse his applications for leave to remain in the United Kingdom. On 6 March 2014, the First-tier Tribunal (Immigration and Asylum Chamber) dismissed his appeal. On 4 July 2014, the Upper Tribunal (Immigration and Asylum Chamber) dismissed an appeal against the decision of the FTT. The appellant appealed to the Inner House of the Court of Session.
Bank Mellat v HM Treasury (No 2) [2013] UKSC 38; [2014] AC 700; [2013] 4 All ER 495; [2013] Lloyd's Rep FC 557
Butt v Norway (47017/09), 4 December 2012, unreported
Da Silva and Hoogkamer v NetherlandsHRC (2007) 44 EHRR 34; [2006] 1 FCR 229
Huang v Secretary of State for the Home DepartmentUNK [2007] UKHL 11; [2007] 2 AC 167; [2007] 2 WLR 581; [2007] 4 All ER 15; [2007] 1 FLR 2021; [2007] HRLR 22; [2007] UKHRR 759; 24 BHRC 74; [2007] Imm AR 571; [2007] INLR 314; [2007] Fam Law 587
Izuazu (Article 8: New Rules: Nigeria) (Re) [2013] UKUT 45; [2013] Imm AR 453; [2013] INLR 733
Jeunesse v Netherlands (12738/10) (2015) 60 EHRR 17
Khan v Secretary of State for the Home Department [2015] CSIH 29; 2015 SC 583; 2015 GWD 13–231
MS v Secretary of State for the Home Department [2013] CSIH 52; 2013 GWD 23–441
Mirza v Secretary of State for the Home Department [2015] CSIH 28; 2015 SC 572; 2015 SCLR 711; 2015 GWD 15–269
Nunez v NorwayHRC (2014) 58 EHRR 17
R (on the application of Agyarko) v Secretary of State for the Home DepartmentUNK [2015] EWCA Civ 440; [2016] 1 WLR 390; [2015] Imm AR 1201
R (on the application of Razgar) v Secretary of State for the Home DepartmentUNK [2004] UKHL 27; [2004] 2 AC 368; [2004] 3 WLR 58; [2004] 3 All ER 821; [2004] HRLR 32; [2004] Imm AR 381; [2004] INLR 349; [2004] MHLR 218; [2004] ACD 83
S v Secretary of State for the Home Department [2015] CSOH 118; 2015 SLT 651
Sanade and ors (British Children: Zambrano: Dereci) [2012] UKUT 48; [2012] Imm AR 3; [2012] INLR 633
Home Office, Statement of Changes in Immigration Rules (HC 395) (HMSO, London, May 1994), appendix FM, r EX1.(b) (Online: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228895/0395.pdf (6 April 2016))
The appeal called before the First Division, comprising the Lord President (Carloway), Lord Brodie and Lord Malcolm, for a hearing on the summar roll, on 2 and 3 February 2016.
At advising, on 3 March 2016, the opinion of the Court was delivered by the Lord President (Carloway)—
Opinion of the Court—
[1] This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) dated 4 July 2014, which adhered to a decision of the First-tier Tribunal (“FTT”) upholding the respondent's decision to refuse the appellant's application for leave to remain in the United Kingdom. The appeal concerns whether the FTT erred in its assessment of proportionality in terms of the Art 8 rights of the appellant and his wife. The context of that assessment was the appellant's genuine marriage to a UK citizen while his immigration status was precarious. The case concerns the correct balancing of the individual's right to respect for his and her private and family life with the state's right to control immigration. There has been considerable judicial dicta on this subject in recent years; not all of it readily reconcilable. The court is concerned to ensure that the limits of its appellate jurisdiction, when considering the decisions of the immigration tribunals in this type of case, are properly understood. Ultimately, it is primarily for these specialist tribunals to determine whether...
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