Muhammad Irfan Khan For Judicial Review Of A Decision By The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2013] CSOH 176 |
| Year | 2013 |
| Published date | 14 November 2013 |
| Date | 14 November 2013 |
| Court | Court of Session |
| Docket Number | P329/13 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 176 | |
| P329/13 | OPINION OF LORD GLENNIE in the petition of MUHAMMAD IRFAN KHAN Petitioner; For judicial review of a decision by the Secretary of State for the Home Department dated 26 March 2013 refusing to allow the petitioner leave to remain as a spouse of a UK national ________________ |
Petitioner: Winter; Drummond Miller LLP
Respondent: O'Rourke; Office of the Advocate General
14 November 2013
Introduction
[1] The petitioner was born in May 1971. He is a Pakistani national. He entered the UK on 15 July 2006 pursuant to a five-year visitor visa issued on 24 November 2005 and valid until 24 November 2010. He entered the UK on a number of occasions while his visa was valid, the last such occasion being in November 2010. He remained in the UK after his visa expired. In May 2011 he was discovered working in Stirling, contrary to the restrictions in his (expired) visitor visa, was arrested as a suspected immigration offender, was interviewed at Stirling Police Station and was served with notice that he was liable to be deported. However he was not in fact deported. Instead he was released subject to reporting requirements with which he has complied. It is averred by the Secretary of State that, while being interviewed, the petitioner admitted that he had worked illegally on previous visits to the UK in breach of the terms of his visitor visa, but this is not admitted.
[2] On 17 September 2011, while he remained in the UK subject to reporting requirements, the petitioner married a UK national. He was 40 at the time. His wife was in her early 20s. They met for the first time on 20 November 2010, just before the petitioner's visa expired, started living together in May 2011, decided to get married in June 2011 and did in fact get married in September 2011.
[3] On 22 November 2011 the petitioner submitted an application for leave to remain in the UK as the spouse of a UK national. This application was refused by letter of 17 January 2012 ("the first refusal letter"). On 13 February 2012 he asked the UK Border Agency to reconsider that refusal. No response was received to that request until, over a year later, he received a letter ("the second refusal letter") dated 26 March 2013, in which the UK Border Agency maintained their decision to refuse him leave to remain. On the same date, the UK Border Agency issued removal directions for the removal of the petitioner to Pakistan. Those removal instructions were cancelled when the first order was made in this petition.
[4] The petitioner challenges the refusal of his application for leave to remain in the UK essentially on grounds that that refusal, even if it is justified in terms of the Immigration Rules, is contrary to his article 8 ECHR right to family life.
The application for leave to remain
[5] The petitioner's application on 22 November 2011 was for an extension of his stay in the UK as the spouse of a British citizen. Having described the circumstances in which he met and married his wife, the application letter, written by solicitors acting for him, stated as follows:
"We advise that our client has been residing in the UK since his arrival [i.e. since his arrival in November 2010]. He has settled well and integrated amongst communities having made many friends. He is a law-abiding citizen and has no previous convictions. Wife of applicant is British by birth and has been working in the UK; her family members are also British citizens. The applicant has started well established private and family life in the UK hence; the refusal or ultimate removal would be violation of fundamental rights of applicant and his wife guaranteed under article 8 of ECHR. The refusal and ultimate removal would be disproportionate and would amount to interference with private and family life."
The letter then went on to refer to the cases of Huang v. Secretary of State for the Home Department [2007] 2 AC 167 and Beoku-Betts v. Secretary of State for the Home Department [2009] 1 AC 115.
The first refusal letter and grounds of challenge
[6] The first refusal letter is dated 17 January 2012. It accompanied a notice of decision of the same date intimating the Secretary of State's refusal to grant leave to remain. The notice addresses directly the grounds relied upon in the petitioner's application. It points out that, at the time he applied, the petitioner's visitor visa had expired, that he did not have limited leave to remain in the UK, that he had remained in the UK in breach of immigration laws and that he had married after he had been served with notice of his liability to deportation.
[7] The consideration given by the Secretary of State to article 8 ECHR and its relevance to the petitioner's application is explained in some detail in the first refusal letter itself. Since in argument before me a number of passages in this letter came in for criticism, I should set out the terms of the letter at some length, identifying and commenting on the main criticisms as I go along.
[8] The refusal letter took as its starting point the observation that every state has the right to control the entry of non-nationals into its territory and that article 8 ECHR did not give a person the automatic right to choose to pursue his or her family or private life in the UK. It quoted the following passage from paragraph 20 of the speech of Lord Bingham (delivering the opinion of the committee) in Huang, to the effect that the relevant question for the Secretary of State to consider was:
"... whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8."
The letter correctly acknowledged that, in the much-discussed passage his speech in Razgar v. Secretary of State for the Home Department [2004] 2 AC 368, Lord Bingham was not purporting to lay down a legal test of "exceptionality" but was simply expressing an expectation that the number of claimants entitled to succeed under article 8 would be small. No issue is taken with that. The letter went on to say that the issue of proportionality was to be assessed on the basis of all relevant factors, balancing the rights of the individual with the rights of the wider community and the state. Again, no issue is taken with that.
[9] The refusal letter then went on to say this:
"However, the case law shows that the threshold for finding that a decision to remove is disproportionate is very high."
That statement is criticised in this case. Mr Winter, for the petitioner, says that the case law shows no such thing. On the contrary, it shows that the threshold for such a finding is the ordinary civil standard of balance of probabilities. He relies for this on a passage in Naz (subsisting marriage - standard of proof) Pakistan [2012] UKUT 00040 (IAC) at paragraph 11, where the Upper Tribunal recited, with obvious acceptance, a submission that it was trite that the standard of proof of the primary facts in the entry clearance claims was the ordinary civil balance and that "a similar standard applies in article 8 cases, where the claimant alleges that immigration action interferes with subsisting private or family life"; and at paragraph 13, where despite rejecting the criticism of the judge on this point, the Upper Tribunal clearly accepted that the standard was the ordinary civil standard. That criticism of the higher test apparently adopted in the first refusal letter in this case appears to me to be justified.
[10] The refusal letter then goes on to cite extensively from the speech of Lord Bingham in Razgar, particularly from paragraph 20 of that speech in which Lord Bingham makes the point that decisions taken pursuant to the lawful operation of immigration control "we will be proportionate in all save a small minority of exceptional cases". Despite having earlier acknowledged, correctly, on the basis of Huang (supra), that in this passage Lord Bingham did not purport to lay down a legal test of exceptionality, the refusal letter went on to say this:
"The case of Razgar makes it clear, therefore, that it is only in an exceptional case that the decision to remove an applicant in the course of the lawful operation of immigration control would be disproportionate.
You have put forward no credible documentary evidence to suggest that your client's situation is exceptional, most compelling or compassionate."
This passage was criticised, also with justification. Despite having earlier recognised that exceptionality was not the test, the writer of the letter seems to have proceeded as though it was. While the first sentence might, on a favourable construction, amount to no more than an observation that, as Mr O'Rourke put it, "exceptionality is an outcome" (i.e. that successful proportionality challenges under article 8 will be rare), the second sentence - where the writer clearly states that the petitioner has put forward no relevant credible evidence to meet the exceptionality test - leaves me in no doubt that the writer is adopting the exceptionality test which he has earlier, correctly, disclaimed. I leave aside the expression "most compelling or compassionate" for this purpose, but clearly those words are used in amplification and not dilution of the test of exceptionality.
[11] The letter goes on to say that, in assessing the petitioner's case, consideration has "also" been given to five factors, namely: (i) does your client have a family life in the UK; (ii) if so, will removal interfere with that family life; (iii) would any such interference be in accordance with the law; (iv) would such interference be in pursuit of one of the permissible aims set out under article 8(2) ECHR; and...
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