R (Agyarko) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLady Hale,Lord Reed,Lord Kerr,Lord Wilson,Lord Carnwath,Lord Hughes
Judgment Date22 February 2017
Neutral Citation[2017] UKSC 11
Date22 February 2017

[2017] UKSC 11

THE SUPREME COURT

Hilary Term

On appeal from: [2015] EWCA Civ 440

Before

Lady Hale, Deputy President

Lord Kerr

Lord Wilson

Lord Reed

Lord Carnwath

Lord Hughes

Lord Hodge

R (on the application of Agyarko)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
R (on the application of Ikuga)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

Appellant

Parminder Saini

(Instructed by Nag Law Solicitors Ltd and MTG Solicitors)

Respondent

Lisa Giovannetti QC

Neil Sheldon

(Instructed by The Government Legal Department)

Heard on 6 and 7 April 2016

Lord Reed

( with whom Lady Hale, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes and Lord Hodge agree)

1

These appeals are concerned with applications made by foreign nationals, residing unlawfully in the UK, for leave to remain here as the partners of British citizens with whom they have formed relationships during the period of their unlawful residence. The appellants rely primarily on the duty imposed on the Secretary of State by the Human Rights Act 1998 to act compatibly with the right to respect for family life guaranteed by article 8 of the ECHR. In each case, the Secretary of State concluded that the appellant did not qualify for leave to remain under the applicable provisions of Appendix FM to the Immigration Rules ("the Rules"), and that, applying the Immigration Directorate Instructions, "Family Members Under the Immigration Rules, Section FM 1.0, Partner & ECHR Article 8 Guidance" ("the Instructions"), there were no exceptional circumstances warranting the grant of leave to remain outside the Rules.

2

The appeals focus primarily on (1) paragraph EX.1(b) of Appendix FM, which imposes on applicants for leave to remain as a partner, where the applicant is in the UK in breach of immigration laws, a requirement that there are "insurmountable obstacles" to family life with that partner continuing outside the UK; and (2) a requirement in the Instructions that there must be "exceptional circumstances" for leave to remain to be granted in such cases outside the Rules. They also raise an issue under EU law, relating to the effect of the judgment of the Court of Justice in Ruiz Zambrano v Office national de l'emploi (Case C-34/09) [2012] QB 265, as well as some other issues under domestic law.

Rules and Instructions
3

It may be helpful to begin by explaining the nature and status of the Rules and the Instructions. Decision-making in relation to immigration, as in relation to other areas of government, is not exhaustively regulated by legislation. It involves the exercise of discretion and the making of evaluative judgments. In such a situation, it is usual, and legitimate, for the Secretary of State to adopt administrative policies in order to guide decision-making, and to issue instructions to officials. Unusually, in the context of immigration Parliament has enacted legislation under which it exercises oversight of these aspects of administrative decision-making. Section 3(2) of the Immigration Act 1971 requires the Secretary of State to lay before Parliament "statements of the rules, or any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter". The Rules are subject to Parliamentary approval, and are published as House of Commons papers. Their legal significance was reflected, at the time of the proceedings with which these appeals are concerned, in the fact that an appeal could be brought against an immigration decision on the ground that it was not in accordance with the Rules: Nationality, Immigration and Asylum Act 2002, section 84(1)(a). Section 86(3) of the 2002 Act also included the Rules in the law to which the tribunal must have regard when determining an appeal.

4

The Secretary of State also has a discretionary power under the 1971 Act to grant leave to enter or remain in the UK even where leave would not be given under the Rules: R (Munir) v Secretary of State for the Home Department [2012] UKSC 32; [2012] 1 WLR 2192, para 44. The manner in which that discretion is exercised may be the subject of a policy, which may be expressed in guidance to the Secretary of State's officials. The discretion may also be converted into an obligation where the duty of the Secretary of State to act compatibility with Convention rights is applicable.

Giving effect to Convention rights
5

In the exercise of her functions under the 1971 Act, including the making of rules and the giving of instructions, the Secretary of State has always been under a duty to comply with requirements imposed by the common law: notably, to act consistently with the intentions of Parliament, and to exercise her powers in accordance with the law and in a rational manner. The Human Rights Act additionally imposed on the Secretary of State a statutory duty not to act incompatibly with Convention rights, including the right guaranteed by article 8. The same duty is also imposed on tribunals and courts considering an appeal against the decision of the Secretary of State, but their role does not absolve the Secretary of State of her own duty to act compatibly with Convention rights. Unlike the ECHR itself, which imposes a duty under international law on the United Kingdom as a contracting party, and is therefore not concerned with failures to comply with Convention rights by one organ of the state which are fully corrected by another, the Act imposes a duty on every public authority, subject to specified exceptions. The fact that an act of a public authority may be subject to review by the courts, and therefore does not in itself inevitably result in a breach of the Convention, does not mean that the act cannot be incompatible with Convention rights. Such a reading of the Act would deprive it of most of its content, since virtually all acts of public authorities are susceptible to appeal or review before the courts. It would therefore be inconsistent with the intention of Parliament.

6

How the Secretary of State ensures that her acts in the exercise of her functions under the 1971 Act are compatible with Convention rights is, in principle, a matter for her. The Secretary of State's initial response to the entry into force of the material provisions of the Human Rights Act in October 2000 was to insert into the Rules a direction to officials to carry out their duties in compliance with the provisions of that Act (rule 2). As the Home Office noted in 2012, however, "there was no change to the family life part of the Rules to reflect any consideration of proportionality under article 8, and there has been no attempt since to align the rules with developing article 8 case law" ( Statement of Intent: Family Migration, Home Office, June 2012). The Rules frequently offered no more than broad guidance as to how discretion was to be exercised in different typical situations. In that situation, it was primarily through the exercise of her residual discretion to deal with cases outside the Rules that the Secretary of State sought to comply with article 8.

7

That is no longer true. Over time, increasing emphasis has been placed on certainty rather than discretion, on predictability rather than flexibility, on detail rather than broad guidance, and on ease and economy of administration. The increased numbers of applications, the increasing complexity of the system, and the increasing use of modern technology for its administration, have necessitated increasingly detailed Rules and instructions. In some areas, the apparent aim is for the decision-making process to involve as little discretion or judgment as can be achieved consistently with the duty to respect Convention rights. The present context appears to be an example, as explained below.

8

The position was different at the time when the House of Lords decided the leading case of Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167. At that time, the Rules did not reflect an assessment of the proportionality of decision-making in relation to article 8. In that context, Lord Bingham of Cornhill said at para 6 that the rule under which the appellant failed to qualify for leave to remain was unobjectionable, but that her failure to qualify under the Rules was the point at which to begin, not end, consideration of her claim under article 8.

9

The Rules with which this appeal is concerned form part of the Secretary of State's response to Huang. They were included in the Statement of Changes in Immigration Rules published in June 2012 (HC 194), and laid before Parliament pursuant to section 3(2) of the 1971 Act. The new rules set out in that Statement were the subject of debates in both Houses of Parliament, as well as being examined by the Secondary Legislation Scrutiny Committee of the House of Lords. They came into force on 9 July 2012. Their rationale was explained in the Home Office documents which accompanied the Statement of Changes, comprising the Statement of Intent: Family Migration, and the Statement by the Home Office, Grounds of Compatibility with Article 8 of the European Convention on Human Rights.

10

The Statement of Intent announced that the changes to the Rules would "comprehensively reform the approach taken towards ECHR article 8 in immigration cases" (para 10). They would achieve this by themselves reflecting an assessment of all the factors relevant to the application of article 8:

"The new rules will reflect fully the factors which can weigh for or against an article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government's and Parliament's view of how individual rights to respect for private or family life should be...

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