R Ganesabalan v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Michael Fordham |
| Judgment Date | 16 July 2014 |
| Neutral Citation | [2014] EWHC 2712 (Admin) |
| Docket Number | CO/4857/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 July 2014 |
[2014] EWHC 2712 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Michael Fordham QC
(Sitting as a Deputy High Court Judge)
CO/4857/2013
Miss S Anzani (instructed by Naglaw Solicitors) appeared on behalf of the Claimant
Miss C Rowlands (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
THE DEPUTY JUDGE:
INTRODUCTION
This is a claim for judicial review brought with the permission of Hickinbottom J. At issue is the lawfulness of a revised decision dated 15 February 2013 accompanied by a notice of decision by which the claimant was refused leave to remain in the United Kingdom. This is another case involving what has been described in the authorities as the "two-part test" or "two-stage test" so far as private life and family life under Article 8 of the European Convention on Human Rights and the relevant Immigration Rules and guidance are concerned. Six authorities relating to that topic were cited to me. In date order they were R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin); MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 [2014] 1 WLR 544; Ahmed v Secretary of State for the Home Department [2014] EWHC 300 (Admin); Halleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558, R (Amin) v Secretary of State for the Home Department [2014] EWHC 2322 (Admin); and R (MM(Lebanon)) v Secretary of State for the Home Department [2014] EWCA Civ 985.
By a letter dated 29 June 2012, the claimant's solicitors had asked the Secretary of State to " exceptionally consider this application and grant our client an extension of stay in the UK as the partner of a person present and settled in the UK". That letter of representations, read with the accompanying form and materials, emphasised private life and family life and the standard of proportionality under ECHR Article 8. In particular, the following features of the claimant's position were put forward.
(1) The claimant, a citizen of Sri Lanka, had come to the United Kingdom nearly 12 years previously in October 2000 aged 24. He had then been present lawfully with leave to remain as a student for some nine and a half years until April 2010. He had subsequently and unsuccessfully sought to regularise his position, and had then remained in the United Kingdom without leave and invoked Article 8.
(2) The claimant had met his wife in the United Kingdom in 2002, after which they had built up a strong relationship eventually resulting in their marriage in March 2012.
(3) The claimant's wife, now aged 30, was a British citizen who had lived in the United Kingdom for more than 16 years from the age of 14, was settled with a stable job and able to maintain the couple. The clear implication of the letter of representations was the submission that she could not reasonably be expected to follow the claimant were he removed.
(4) Further considerations were emphasised which included the claimant's good character, an English language qualification, a 'Life in the UK' test certificate, and reference to the case of Chikwamba v Secretary of State for the Home Department [2008] UKHL 40, to which I will return at the end of this judgment.
The position under the Immigration Rules was as follows. The claimant was assessed by the Secretary of State as being ineligible on the application of the requirements of the Rules. There is no challenge in this claim to the lawfulness or reasonableness of that conclusion.
(1) The claimant could not meet the criteria in Immigration Rule 284, which is concerned with extension of stay as a spouse of a person present and settled in the UK.
(2) So far as private life and family life were concerned, the relevant Immigrations Rules were, respectively, Rule 276ADE and Appendix FM.
(3) So far as concerned private life and Rule 276ADE, the claimant had not lived continuously in the United Kingdom for the requisite 20 years, nor for a period of less than 20 years accompanied by an absence of relevant ties with Sri Lanka (which absence of ties the Secretary of State decided he had not demonstrated).
(4) As regards family life and Appendix FM, the claimant was present in breach of immigration laws, needed to show that he was in a genuine and subsisting relationship with a partner of a British citizen in the United Kingdom but also that insurmountable obstacles arose to their family life continuing outside the United Kingdom (which insurmountable obstacles the Secretary of State decided he had not demonstrated). The relevant paragraphs of Appendix FM in play in this case were as follows: R-LTRP.1.1, E-LTRP.2.2 and EX.1.
(5) There was no discretion, whether based on exceptional circumstances or otherwise, arising under the terms of the relevant and applicable Immigration Rules.
The essence of the case is as follows. Miss Anzani, for the claimant, submits that the decision letter contains an error of law and should be quashed for failure to address the legally-required question as to whether exceptional circumstances justified leave to remain outside the Rules in order to satisfy Article 8. She submits that the two-stage test was applicable and that only the first stage was addressed.
Miss Rowlands, for the Secretary of State, responds in essence that, in the absence of anything 'exceptional' or 'compelling' in this case: no second stage arose, and nothing further needed to be addressed; but, in any event, there is no basis for granting judicial review or any remedy because the decision would inevitably have been the same. As Miss Rowlands put it, it is necessary to ask whether any 'exceptional' or 'compelling' circumstances were identified by the claimant, which are not 'catered for by the Rules', which the Secretary of State failed to consider, and which would lead the court to quash the decision so that she can now consider them.
The factual premise
The starting point is to ask whether the claimant has established that the decision letter in this case only involved the application of the terms of the relevant Immigration Rules. Miss Anzani submits that that is the nature of the decision letter, and I accept that submission.
So far as family life is concerned, the notice of decision expressly recorded that "consideration has been given to your family life under EX.1 of Appendix FM". So far as reference to Article 8 is concerned, the decision notice stated expressly, in referring to private life, that "Article 8 … from 9 July 2012 falls under paragraph 276ADE of the Rules". Having addressed the position under the Rules, the notice continued: "In view of the above, the Secretary of State is not satisfied that you are able to meet the requirements of paragraph 276ADE, as stated above". The notice continued: "Your application for leave to remain in the United Kingdom has been refused". Absent from the notice was any further reference to any further question or consideration. The covering letter of 15 February 2013 stated: "The decision to refuse was entirely appropriate and correct as your client does not meet the requirements of the Rules, including EX.1".
In those circumstances, in my judgment, the factual premise on which the claim rests is made out. This case therefore contrasts with Nagre (see paragraphs 23 and 51). There, the Secretary of State had written a revised decision letter of 18 March 2013 which expressly recorded that the Secretary of State had "also considered whether there are any exceptional circumstances in your client's case which would make a refusal unjustifiably harsh and might make a grant of leave outside the Rules appropriate". That letter went on to explain that: "Careful consideration has been given to the information provided" but the conclusion had been reached that it "had not raised any exceptional circumstances and the Secretary of State is not satisfied that the exercise of discretion is warranted in this case". Also contrasting with the present case is Ahmed (see paragraphs 12 and 38 to 39). There too, alongside the evaluation of facts and circumstances relevant to the Immigration Rules, there were in an August 2013 decision passages referable to the question of whether any exceptional circumstances arose. Similarly, in Halleemudeen (at paragraph 20) the court recorded that the decision letter had made express reference as follows: "It is not considered that your particular circumstances would justify a grant of leave outside the Immigration Rules".
Discussion of the law
For present purposes and as relevant to the present case the correct position in law, in my judgment, is as follows. Were a person seeks leave to remain, relying on private life or family life or both, and relying on Article 8, and where the claim fails at the first stage by reference to the applicable Immigration Rules (Appendix FM and Rule 276ADE):
(1) There is always a "second stage" in which the Secretary of State must consider the exercise of discretion outside the Rules and must be in a position to demonstrate that she has done so.
(2) The extent of that consideration and the extent of the reasoning called for will depend on the nature and circumstances of the individual case.
(3) In a case in which the consideration or reasoning is legally inadequate, and leaving aside cases in which there is a right of appeal to a tribunal, it is open to the Secretary of State to resist the grant of judicial review if she is...
To continue reading
Request your trial
-
R Mohammad Shahzad Khan v Secretary of State for the Home Department
...into effect after Mr Khan's application. Relying on the decision in R (Ganasabalan) v Secretary of State for the Home Department [2014] EWHC 2712 (Admin), Mr Ahmed submitted that the failure of the Secretary of State to consider whether there were exceptional circumstances rendered the deci......
-
R (on the Application of Esther Ebun Oludoyi and Others) v Secretary of State for the Home Department (Article 8 - MM (Lebanon) and Nagre) (IJR)
...a preliminary to a consideration of an Article 8 claim beyond the relevant criterion-based Rule. As is held inR (Ganesabalan) v SSHD [2014] EWHC 2712 (Admin), there is no prior threshold which dictates whether the exercise of discretion should be considered; rather the nature of the assessm......
-
KK (India) v The Secretary of State for the Home Department
...MR at paragraphs [44]–[46], Davis and Gloster LJJ concurring). 27 In R (Ganesabalan) v Secretary of State for the Home Department [2014] EWHC 2712 (Admin) the Court of Appeal considered counsel's submissions that the Secretary of State must be able to demonstrate exercise of discretion out......
-
Upper Tribunal (Immigration and asylum chamber), 2016-01-07, IA/31913/2014
...preliminary to a consideration of an Article 8 claim beyond the relevant criterion-based Rule. As is held in R (Ganesabalan) v SSHD [2014] EWHC 2712 (Admin), there is no prior threshold which dictates whether the exercise of discretion should be considered; rather the nature of the assessme......