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)

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeUpper Tribunal Judge Gill
Judgment Date29 October 2014
Neutral Citation[2014] UKUT 539 (IAC)
Date29 October 2014

[2014] UKUT 539 (IAC)

UPPER TRIBUNAL

(Immigration and Asylum Chamber)

Before

UPPER TRIBUNAL JUDGE Gill

In the Matter of an Application for Judicial Review

Between
The Queen (on the application of Esther Ebun Oludoyi, Sunday Femi Oludoyi, Christianah Damilola Oludoyi and Samuel Damilare Oludoyi) (No Anonymity Order made)
Applicants
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Applicant: Mr S Karim, instructed by The First Law Partnership Ltd.

For the Respondent: Ms J Thelen, instructed by the Treasury Solicitor.

R (on the application of Esther Ebun Oludoyi & Ors) v Secretary of State for the Home Department (Article 8 — MM (Lebanon) and Nagre) IJR

There is nothing in R (Nagre) v SSHD [2013] EWHC 720 (Admin) , Gulshan (Article 8 – new Rules – correct approach) Pakistan [2013] UKUT 640 (IAC)orShahzad (Art 8: legitimate aim) [2014] UKUT 00085 (IAC)that suggests that a threshold test was being suggested as opposed to making it clear that there was a need to look at the evidence to see if there was anything which has not already been adequately considered in the context of the Immigration Rules and which could lead to a successful Article 8 claim. These authorities must not be read as seeking to qualify or fetter the assessment of Article 8. This is consistent with para 128 ofR (MM & Others) v SSHD [2014] EWCA Civ 985, that there is no utility in imposing a further intermediate test as 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 assessment and the reasoning which are called for are informed by threshold considerations.

Handed down on 29 October 2014

1

The applicants are nationals of Nigeria, now aged (respectively) 53 years, 59 years, 23 years and 20 years. Upper Tribunal Judge Storey granted permission to challenge the lawfulness of decisions of the respondent, first made on 9 August 2013 (the first decision) supplemented on 18 March 2014 (the second decision) and (in respect of the second applicant) a decision of 28 May 2014 (the third decision), to refuse their applications of 13 August 2012 for leave to remain in the United Kingdom on the basis of their rights under Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The grounds upon which they challenge the decisions made on their individual Article 8 claims are summarised at [32] below. In addition, they each challenge the respondent's failure to make appealable immigration decisions with an in-country right of appeal.

2

In this particular case, it makes sense for me to describe and deal with the legal issue of general interest before turning to the facts of the individual applicants.

3

It is generally thought that, in R (Nagre) v SSHD [2013] EWHC 720 (Admin), Sales J (as he then was) considered that, if an individual does not satisfy the requirements for the grant of leave under (in non-deportation cases) Appendix FM (in relation to family life) or para 276ADE (in relation to private life) of the immigration Rules (the “IRs”) introduced from 9 July 2012 by HC 194, it is only necessary to consider Article 8 outside the IRs if there is a “good arguable case” for the grant of leave on the basis of Article 8.

4

The legal issue of general interest is whether the observations of the Court of Appeal in R (MM & Others) v SSHD [2014] EWCA Civ 985 in the concluding words of para 128 (see [12]) below) should lead to a change in the approach that may have been thought to have been indicated by Sales J; in particular, whether a “threshold” of a “good arguable case” must be shown before the duty arises to consider Article 8 beyond any IRs which set out criteria for the consideration of family or private life.

5

Having described the legal issue briefly in this way, it is necessary to go into some further detail:

6

From 9 July 2012, HC 194 introduced the criteria to be met in assessing the private and family life claims of individuals. In criminal deportation cases, the relevant IRs are paras 398, 399 and 399A-D. Para 398 provides (in effect) that the first step is to consider whether paras 399 or 399A apply. If they do not, para 398 provides that: it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors. By HC 532 and with effect from 28 July 2014, this has been amended to: “… the public interest in deportationwill only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A”.

7

The relevant IRs in relation to private life in non-deportation cases are paras 276ADE to 276CE. If an individual does not meet the criteria set out therein, then guidance issued by the Secretary of State in the form of instructions provides, in effect, that leave to remain outside the IRs could be granted in the exercise of residual discretion in “exceptional circumstances” which are defined in the guidance. In the Nagre case, the Secretary of State's guidance provided:

“Exceptional” does not mean “unusual” or “unique”. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin. Instead, “exceptional” means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. That is likely to be the case only very rarely.”

8

In Nagre, Sales J said (at [30]):

“…if, after the process of applying the new rules and finding that the claim for leave to remain under them fails, the relevant official or tribunal judge considers it is clear that the consideration under the Rules has fully addressed any family life or private life issues arising under Article 8, it would be sufficient simply to say that; they would not have to go on, in addition, to consider the case separately from the Rules. If there is no arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8, there would be no point in introducing full separate consideration of Article 8 again after having reached a decision on application of the Rules.”

9

Nagre was considered by the Court of Appeal in MF (Nigeria) v SSHD [2013] EWCA Civ 1192. As this was a deportation case, the IRs that were considered were paras 398, 399 and 399A. At [44], the Court held that the new IRs (by which the Court was referring to the IRs relating to criminal deportation cases) were a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required Strasbourg jurisprudence. At [45], the Court held that it was a sterile question whether the proportionality test was applied within the IRs or outside the IRs; either way, the result would be the same.

10

In Gulshan (Article 8 – new Rules – correct approach) Pakistan [2013] UKUT 640 (IAC), a reported determination of the Upper Tribunal, heard before Cranston J and Upper Tribunal Judge Taylor, the Upper Tribunal decided (at [24(b)] and citing Nagre) that, on the current state of the authorities, after applying the requirements of the IRs, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them.

11

Also relevant is Shahzad (Art 8: legitimate aim) [2014] UKUT 00085 (IAC), the headnote for which (insofar as relevant) reads:

“(iv) MF (Nigeria) [2013] EWCA Civ 1192 held that the new immigration rules regarding deportation of a foreign criminal are a complete code. This was because of the express requirement in them at paragraph 398 to have regard to exceptional circumstances and other factors.

(v) It follows from this that any other rule which has a similar provision will also constitute a complete code;

(vi) Where an area of the rules does not have such an express mechanism, the approach in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) ([29]–[31] in particular) and Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 640 (IAC) should be followed: i.e. after applying the requirements of the rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them.”

12

At para 128 of MM, the Court of Appeal said:

“Sales J's decision therefore follows the logic of Laws LJ's statements in [38]–[39] of AM (Ethiopia), analysed above. However, there is a difference in that in Nagre the new rules were themselves attempting to cover, generally, circumstances where an individual should be allowed to remain in the UK on Article 8 grounds; whereas in AM (Ethiopia) and in the present appeals the rule challenged stipulates a particular requirement that has to be fulfilled before the applicant will be allowed to enter or remain. The argument in each case is that it is that specific requirement that offends Article 8. Nagre does not add anything to the debate, save for the statement that if a particular person is outside the rule then he has to demonstrate, as a preliminary to a consideration outside the rule, that he has an arguable case that there may be good grounds for granting leave to remain outside the rules. I cannot see much utility in imposing this further,...

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