Singh v The Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Underhill,Lord Justice Lewison,Lady Justice Arden,and
Judgment Date12 February 2015
Neutral Citation[2015] EWCA Civ 74
Docket NumberCase No: C5/2013/2849
Date12 February 2015

[2015] EWCA Civ 74

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM UTIAC

Judge Christopher Hanson

IA257672012

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM the High Court (Administrative Court)

Professor Andrew Grubb (Deputy High Court Judge)

CO62752013

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice Arden

Lord Justice Lewison

and

Lord Justice Underhill

Case No: C5/2013/2849

Case No: C4/2014/0389

Between:
Singh
Appellant
and
The Secretary of State for the Home Department
Respondent
Between:
Khalid
Appellant
and
The Secretary of State for the Home Department
Respondent

Zane Malik (instructed by Burney Legal Solicitors and Malik Law Chambers Solicitor) for the Appellant in both cases

David Blundell (instructed by The Treasury Solicitor) for the Respondent

Hearing date: 12 th November 2014

Lord Justice Underhill

INTRODUCTION

1

These two appeals concern aspects of the changes made to the Immigration Rules by a Statement of Changes (HC 194) promulgated on 13 June 2012 and taking effect from 9 July 2012, and by a further Statement of Changes (HC 565) promulgated on 5 September 2012 and taking effect the following day. The changes were multifarious, but we are concerned only with those addressing the approach to be taken to applications for leave to enter or remain on the basis of an applicant's private or family life. I set out the relevant changes in detail below, but it will be convenient to give an overview at the start. I will refer to the Rules incorporating the changes made by HC 194 as "the new Rules" and to the previous version as "the old Rules".

2

Under the old Rules leave to enter or remain as a family member of a person settled in the UK was regulated by Part 8, which is entitled "Family Members". There was no recognition of a right to enter or remain on grounds of private life as such, but Part 7 ("Other Categories") did provide for leave to remain on grounds of long residence. If an applicant could not establish a right to remain on the basis of one of the particular provisions in those parts, which were tightly defined, they could seek to rely on the right to respect for private and family life derived, via the Human Rights Act 1998, from article 8 of the European Convention of Human Rights. Such applications were generally referred to as being made "outside the Rules".

3

The new Rules, by contrast, contain express provision, by new provisions inserted into Parts 7 (principally a new paragraph 276ADE) and 8 (principally a new "Appendix FM"), for applications made on the grounds of private or family life. It remains the case that an applicant may seek to rely on article 8 in a case falling outside these new provisions, but the intention was that the new Rules would properly reflect its requirements in the generality of cases, so that it should only be exceptionally that an applicant would have a valid claim under article 8 which fell outside their scope: I set out at para. 10 below the Secretary of State's explanation of her intention at paragraph GEN 1.1 of Appendix FM. It is now settled that the right course in any case where an applicant relies on his or her private or family life is to proceed by considering first whether leave should be granted under the relevant provisions of the new Rules and only if the answer is no to go on to consider article 8 in its unvarnished form (the so-called "two-stage approach"): see the line of cases which includes Izuazu (Article 8 – new Rules) [2013] UKUT 45 (IAC) and R (Nagre) v Secretary of State for the Home Department [2013] EWHC 7200 (Admin) to which I will have to refer more fully below. Thus article 8 claims "outside the Rules" are still possible, though the scope for their operation is reduced.

4

The issue of principle raised by these appeals is which regime should apply in a case where an application for leave to remain was made prior to 9 July 2012 but the decision was made later. That issue is the subject of conflicting decisions of this Court – Edgehill v Secretary of State for the Home Department [2014] EWCA Civ 402 and Haleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558. There is, however, also an important issue about precisely how the two-stage approach should operate.

5

The Appellants were represented before us by Mr Zane Malik and the Secretary of State by Mr David Blundell. The time available for the hearing was regrettably short and did not allow full exploration of the issues – not all of which had been clearly identified in the skeleton arguments – and we permitted the parties to put in written submissions subsequently.

THE RULES AND THE CHANGES

(1) THE OLD RULES

6

As already noted, Part 8 covers family members. I need not refer to the details of its provisions prior to HC 194 coming into effect. Part 7 had a sub-heading "Long Residence", which comprised paragraphs 276A-276D. I need only note paragraph 276B, which set out the requirements for the grant of indefinite leave to remain on the ground of long residence in the UK. These included, at (i), that the applicant should have had either (a) ten years' continuous lawful residence or (b) fourteen years' continuous residence (i.e. residence which was not – or not all – lawful); but residence did not count towards the fourteen-year period if the applicant had been served with notice of liability to removal.

(2) THE CHANGES MADE BY HC 194

Preliminaries

7

HC 194 begins with the heading "Implementation". The first paragraph under that heading provides that, subject to certain immaterial exceptions, "the changes set out in this Statement shall take effect on 9 July 2012". But the following paragraph reads:

"However, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012."

I will refer to that as "the implementation provision".

Changes to Part 7

8

Paragraph 87 of HC 194 inserts into Part 7 of the Rules a new group of paragraphs headed "Private Life", being paragraphs 276ADE-276DH. I need only set out paragraph 276ADE, which reads as follows:

" Requirements to be met by an applicant for leave to remain on the grounds of private life

The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 1.5 in Appendix FM; and

(ii) does not fall for refusal under any of the grounds in Section S-LTR 1.6 to 2.3 in Appendix FM; and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment); or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life residing continuously in the UK (discounting any period of imprisonment); or

(vi) is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.

In considering applications under this paragraph, the Secretary of State shall attach less weight to private life in the UK established following refusal of an earlier application for leave to remain made under paragraph 276ADE." 1

9

Various other paragraphs of HC 194 make changes to other provisions of Part 7 to reflect the new private life provisions. Paragraphs 276A-276D are not deleted, but they are amended in various respects so as to render them consistent with paragraphs 276ADE-276DH: among other things, the fourteen-year alternative under paragraph 276B (i) is removed.

Changes to Part 8

10

Paragraph 115 of HC 194 provides for the insertion of an appendix to the Rules designated as "Appendix FM": the "FM" evidently stands for "Family Members". The Appendix begins:

"This Appendix applies to applications under this route made on or after 9 July 2012 and to applications under Part 8 as set out in the Statement of Changes laid on 13 June 2012 (HC 194), except as otherwise set out at paragraphs A277-A280."

Its first substantive paragraph – "GEN 1.1" 2– reads as follows:

"This route is for those seeking to enter or remain in the UK on the basis of their family life with a person who is a British Citizen, is settled in the UK, or is in the UK with limited leave as a refugee or person granted humanitarian protection. It sets out the requirements to be met and, in considering applications under this route, it reflects how, under Article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others. It also takes into account the need to safeguard and promote the welfare of children in the UK."

11

I need not summarise the substantive provisions of Appendix FM, save to note that various of the specific requirements for the grant of leave to enter do not apply where paragraph EX.1 applies. That paragraph reads:

"This paragraph applies if

(a) (i) the applicant has a genuine and subsisting parental relationship with a child who—

(aa) is under the age of 18 years;

...

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