R (on the application of SA) v Home Secretary
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice McCloskey |
| Judgment Date | 08 August 2015 |
| Neutral Citation | [2015] UKUT 536 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 08 August 2015 |
[2015] UKUT 536 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
Mr Justice McCloskey, President of the Upper Tribunal
Having considered all documents lodged and having heard Ms I Thomas, of Counsel, instructed by Lloyds Solicitors, on behalf of the Applicant and Mr Z Malik, of Counsel, on behalf of the Respondent, instructed by the Government Legal Department, at a hearing at Manchester Civil Justice Centre on 31 July 2015
R (on the application of SA) v Secretary of State for the Home Department (human rights challenges: correct approach) IJR
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(i) Tribunals should be alert to distinguish between human rights grounds and public law grounds.
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(ii) In judicial review challenges which include Article 8 ECHR grounds, the question is not whether the impugned decision is vitiated by one or more of the established public law misdemeanours. Rather, the question is whether a breach of Article 8 has been demonstrated.
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(iii) Provided that the above distinction is appreciated, judicial adjudication of issues of proportionality may legitimately be informed by public law principles.
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(iv) The tribunal's approach to proportionality in immigration judicial reviews and immigration appeals differs. In judicial review, the role of the Tribunal is limited by the principle of the discretionary area of judgment, albeit the intensity of review will invariably depend upon the context. This inhibition does not apply in statutory appeals: Huang v SSHD .
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(v) In human rights cases, the focus of the court or tribunal is always on the product of the decision making process under scrutiny, rather than the process itself, except where Convention rights which have a procedural content are engaged.
Judicial Review Decision Notice
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) an Anonymity Order is made. Unless the Upper Tribunal or Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Applicant. This prohibition applies to, amongst others, all parties.
(1) This substantive application for judicial review features some of the most frequently encountered misconceptions in cases which have combined elements of public law and human rights challenges.
(2) The factual matrix is uncontentious, comprising the following salient elements. The Applicant, a national of Pakistan, aged 25 years, entered the United Kingdom lawfully in accordance with a visitor's visa in 2006. His lawful sojourn ended in 2008. In January 2014 he applied for indefinite leave to remain under Appendix FM of the Immigration Rules and Article 8 ECHR. His application was refused by the Respondent (the “ Secretary of State”) in the same year. His challenge to this decision secured the grant of permission to apply for judicial review by order dated 10 February 2015.
(3) The centrepiece of the Applicant's case is the relationship which he has formed with a British citizen. The lady in question (whom I shall describe as his “ partner”) is now aged 23 years. The relationship is of approximately five years duration. It is described in the evidence as “ akin to marriage”. The upbringing, background and personal circumstances of the Applicant's partner combine to form the cornerstone of the case advanced. These emerge from the following passages in her witness statement:
“ I have been in care since a young age because my parents were seen to be neglecting me and my siblings. Whilst in care I was sexually abused ….
Then I was placed back with my mother …. She drank a lot and her partner was very violent towards her …. I never went to school …. I fell in with the wrong crowd and turned to drink and drugs. I put myself back into care after my mother beat me up ….
I was raped when I was 15. I used to drink every day ….”
One of the highlighted features of the rape is that the perpetrator was a Pakistani national who was prosecuted and convicted and, later, deported to Pakistan. The Applicant is credited by his partner with having fundamentally transformed her life. She asserts that she no longer indulges in substance abuse; she has completed a child care course; she was able to secure employment; she has professional ambitions for the future; and she is in a deeply committed, loving relationship with the Applicant.
(4) The applicable provisions of the Immigration Rules are paragraphs 276ADE, 276BE and 276CE, in tandem with certain provisions of Appendix FM, namely paragraphs E – LTRP and EX1. In the context of this case, there are two salient provisions. The first is paragraph 276ADE(1)(vi) which is concerned with the private life dimension of Article 8 ECHR and makes provision for the grant of leave to remain on this ground where the applicant –
“ …. is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK.”
By paragraph 276BE, if the Secretary of State is satisfied that this requirement is fulfilled, leave to remain in the United Kingdom for a period not exceeding 30 months may be granted. If not thus satisfied, per paragraph 276CE, leave to remain “ is to be refused”.
(5) The second main provision of the Rules of moment in the present context relates to the Applicant's quest to secure leave to remain as a partner of the British citizen concerned. This engages paragraph EX1 of Appendix FM, which provides, insofar as material, as follows:
“ ……… (b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection and there are insurmountable obstacles to family life with that partner continuing outside the UK.”
The “insurmountable obstacles” criterion enshrined in this discrete provision of the Rules lies at the heart of the impugned decision of the Secretary of State and the Applicant's ensuing challenge.
(6) The governing legal framework has two further elements. The first is Article 8 ECHR which, pursuant to MF (Nigeria) v SSHD [2013] EWCA Civ 1192, continues to operate independently of and in addition to the Article 8 provisions of the Rules, albeit in a specific residual mode. In the context of deportation of foreign criminals, this is captured in the following passage in the judgment of Dyson MR, at [46]:
“ If the claimant succeeds on an application of the new rules at the first hurdle … then it can be said that he has succeeded on a one stage test. But if he does not, it is necessary to consider whether there are circumstances which are sufficiently compelling (and therefore exceptional) to outweigh the public interest in deportation. That is an exercise which is separate from a consideration of whether paragraph 399 or 399A applies.”
[Emphasis added.]
This concept is explained with particular clarity by the further decision of the Court of Appeal in SS (Congo) and Others v SSHD [2015] EWCA Civ 387. Having emphasised that the relevant provisions of the Immigration Rules are not unlawful simply because they do not comprehensively fulfil the requirements of Convention rights with respect to immigration decisions, Richards LJ continues, [13]:
“ That is because any Convention right of an individual which goes beyond the entitlements set out in the Rules can be satisfied by the Secretary of State outside the Rules by exercise of her residual discretion in accordance with such Convention right requirements as may apply in that individual's case ….”
Thus the MF principle is not confined to the context of the deportation of foreign criminals, but extends to other Article 8 provisions of the Rules.
(7) Finally, sections 117A and 117B of the Nationality, Immigration and Asylum Act 2002 (the “ 2002 Act”) must also be given effect in a case of this genre. These new statutory provisions are reproduced fully in the recently reported decision of the Upper Tribunal in Bossade (ss 117A-D – interrelationship with Rules) [2015] UKUT 415 (IAC), at [9]. Within these provisions there is a series of factors, the so-called “ public interest considerations”, to which the court or tribunal must have regard in every case involving a determination of whether a decision made under the Immigration Acts breaches a person's right to respect for private and/or family life under Article 8 ECHR, contrary to section 6 of the Human Rights Act 1998.
(8) The Secretary of State's decision is distributed between a formal notice dated 18 September 2014 and a supplementary letter dated 31 March 2015. The latter was evidently stimulated by the grant of permission to apply for judicial review. The first of these focused particularly on the “ insurmountable obstacles” provision of the Rules, in the following passage:
“ In determining whether there are ‘insurmountable obstacles’, we have considered the seriousness of the difficulties which you and your partner would face in continuing your family life outside the UK and whether they entail something that you could not (or could not reasonably be expected to) overcome, even with a degree of hardship for one or more of the individuals concerned. While it is acknowledged that your partner has lived in the UK all her life, this does not mean that you are unable to live together in Pakistan. It is noted thatyour partner claimed to have been raped in 2005 by an illegal immigrant from...
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