Muhammad Irfan Khan Against The Advocate General For Scotland
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lord Brodie,Lady Clark Of Calton |
| Judgment Date | 17 April 2015 |
| Neutral Citation | [2015] CSIH 29 |
| Docket Number | P329/13 |
| Court | Court of Session |
| Date | 17 April 2015 |
| Published date | 17 April 2015 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 29
P329/13
Lord Eassie
Lord Brodie
Lady Clark of Calton
OPINION OF THE COURT
delivered by LORD EASSIE
in the Petition
of
MUHAMMAD IRFAN KHAN
Petitioner and Respondent;
against
THE ADVOCATE GENERAL FOR SCOTLAND
Respondent and Reclaimer:
Act: Lindsay QC, Winter; Drummond Miller LLP (for Maguire, Solicitors, Glasgow)
Alt: Webster, MacIver; Office of the Advocate General
17 April 2015
[1] This is a reclaiming motion marked by the Advocate General against a decision of the Lord Ordinary in a petition for judicial review brought against the Advocate General as representing the Secretary of State for the Home Department. The petition has been brought by the petitioner in order to challenge a refusal by the Secretary of State to grant him leave to remain in the United Kingdom as the husband of a British citizen.
[2] The petitioner is a national of the Republic of Pakistan. He came to the United Kingdom on 15 July 2006 on a visitor visa which was valid until 24 November 2010. In November 2010, shortly before the visa expired, he met Ms Jacqueline Tough and formed a friendship with her. That friendship continued and the petitioner and Ms Tough started to live together in May 2011. At about the same time the petitioner was detained by officials of the UK Border Agency on the ground that he was working in a shop. The petitioner was released subject to certain reporting requirements, which he subsequently observed. On 17 September 2011 the petitioner and Ms Tough married. The petitioner’s wife was born in the United Kingdom and is a British citizen. All of her family are British. She works as a shop assistant.
[3] On 22 November 2011 the petitioner applied for leave to remain in the United Kingdom as the spouse of a British national. By a letter written on behalf of the Secretary of State on 17 January 2012 - “the first refusal letter” – the petitioner’s application was refused. On 13 February 2012 the petitioner made further representations to the Secretary of State and asked for reconsideration of his application. Some months later the Secretary of State responded by a letter dated 26 March 2013 – “the second refusal letter”. She maintained her refusal to grant leave to the petitioner.
[4] The petition is directed against both refusal decisions[1]. Put briefly, the basis upon which the petitioner challenges the refusal of leave is that, while his circumstances may not meet the criteria required by the policies of the Secretary of State published in the Immigration Rules (HC395) for the grant of leave to remain, the refusal of that leave constitutes a breach of article 8 of the European Convention on Human Rights – “ECHR”- (protection of private and family life).
[5] At paragraph 24 of his opinion[2] the Lord Ordinary indicates that, except in so far as the reasoning of the first refusal letter might have been incorporated into the second, the focus should be on the latter of the two refusal decisions. However, since he had earlier found the first refusal letter to be vitiated by a number of errors the Lord Ordinary decided, for the avoidance of doubt, that it should be reduced; the interlocutor against which the reclaiming motion is taken accordingly includes reduction of the first refusal letter.
[6] During the interval between the submission of the petitioner’s request for reconsideration in February 2012 and the issue of the response of the Secretary of State in March 2013 certain amendments to the Immigration Rules came into force in July 2012. Those amendments included certain provisions intended to address some aspects of applications involving private and family life. Those provisions include in particular Appendix FM and paragraph 276ADE. Reflecting the terms of paragraph EX1 (b) of Appendix FM, the second refusal letter held that there were no “insurmountable obstacles” to the petitioner and his wife continuing their family life together in Pakistan. Further, since none of the criteria set elsewhere in Appendix FM or paragraph 276ADE of HC395 were met, leave was refused in terms of the Immigration Rules. As we have already indicated, the contention for the petitioner before the Lord Ordinary was that the refusal of leave constituted an infringement of article 8 ECHR. Putting matters very briefly, the Lord Ordinary considered, in the light of the authorities to which he refers in his opinion, that while the test of “insurmountable obstacles” may be set by the Immigration Rules, that test was not to be equiparated with the requirement under article 8 ECHR that the interference with the private and family life in question must be proportionate. The refusal letter did not attempt any such assessment of proportionality. The Lord Ordinary accordingly considered the second refusal letter also to be vitiated; and the interlocutor which the Advocate General reclaims similarly reduces the decision contained in the second refusal letter.
[7] While the interlocutor reclaimed by the Advocate General thus embraces reduction of both refusal letters and while the written grounds of appeal on behalf of the Advocate General maintain that both branches of the Lord Ordinary’s decisions are wrong in law, at the outset of his oral submissions counsel for the Advocate General made plain that he did not seek recall of the interlocutor of the Lord Ordinary so far as it related to the first refusal letter. The reduction of that decision was accepted by the Advocate General.
[8] As respects the second refusal letter, counsel for the Advocate General initially advanced oral submissions to the effect that the Lord Ordinary had erred in the respect that he had, said counsel, failed properly to appreciate that the provisions added in July 2012 to HC395 were a proportionality test. However, in the course of those submissions counsel for the Advocate General accepted that the second refusal letter failed to give any consideration outwith the Immigration Rules to the rights of the petitioner and his wife under article 8 ECHR. Counsel also accepted that the omission by the decision taker to give any such consideration was an error in...
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