Smb For Judicial Review Of A Decision Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2014] CSOH 139 |
| Docket Number | P1312/13 |
| Date | 11 September 2014 |
| Court | Court of Session |
| Published date | 11 September 2014 |
OUTER HOUSE, COURT OF SESSION
[2014] CSOH 139
P1312/13
OPINION OF LORD DOHERTY
In the Petition of
SMB
Petitioner;
for
Judicial Review of a decision of the Secretary of State
for the Home Department dated 2 July 2013
Pursuer: Winter; Drummond Miller LLP
Defender: Duthie; Office of the Advocate General
11 September 2014
Introduction
[1] The petitioner was born in Pakistan in 1965. On 14 August 2000 he entered the UK with his son (born in 1992). His son had a visa to obtain medical treatment and the petitioner had a visa to accompany him for that purpose. On arrival he was interviewed by immigration officers as to the purpose of his visit. On 21 August 2000 he claimed asylum. On 11 October 2000 his asylum claim was refused. On 18 February 2001 he was served with an IS82 advising of his liability to removal. On 28 February 2001 he appealed against the refusal of his asylum claim. The appeal was dismissed on 15 February 2002. He became appeal rights exhausted on 3 April 2002. On 24 June 2002 he submitted a human rights claim (articles 3 and 8 ECHR). The claim was refused on 12 August 2002. On 22 March 2004 he applied for indefinite leave to remain (“ILR”) under the Family ILR exercise. He married a UK national in June 2004. (In July 2005 they had a child. The child was immediately taken into care. The petitioner and his wife have no contact with him). On 25 February 2005 the petitioner submitted a further human rights application (article 8). That application was refused on 6 April 2006. At that time he was served with an IS151A advising of his liability to removal. His appeal against the refusal of 6 April 2006 was dismissed on 1 June 2006. He became appeal rights exhausted on 9 June 2006. On 25 August 2006 his application under the Family ILR exercise was refused. On 29 October 2007 he submitted a further human rights (article 8) application. On 27 October 2008 that application was refused. An appeal against that decision was dismissed on 5 February 2009. Applications for leave to appeal further were refused on 26 February 2009 and 12 May 2009. He became appeal rights exhausted on 19 May 2009. On 14 October 2009 he submitted another human rights (article 8) application. That application was refused on 12 October 2010. On 22 October 2010 permission to apply for judicial review of the decision of 12 October 2010 was refused. On 8 April 2011 and 18 August 2011 he submitted FLR (O) applications without the appropriate fee. Both were rejected. On 7 July 2012 he submitted an FLR (M) application. By notice dated 27 March 2013 that application was refused.
The new Immigration Rules
[2] Appendix FM to the new Immigration Rules (HC 395 as amended by HC 1112) contains provisions relevant to those seeking to enter or remain in the UK on the basis of their family life with a person who is a British citizen or is settled in the UK: paragraph GEN 1.1. The Appendix is directed at the rights that are protected by article 8 of ECHR. Paragraph E-LTRP 2.2 provides:
“The applicant must not be in the UK in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1 applies.”
Paragraph EX.1 provides:
“This paragraph applies if
….
(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 continuing outside the UK.”
[3] The Secretary of State for the Home Department (“the respondent”) has power to grant leave to enter or remain in the United Kingdom outside the Immigration Rules. In MS v Secretary of State for the Home Department [2013] CSIH 52 an Extra Division observed:
“7. … This is of the nature of a residual discretion to deal with deserving cases. The Home Secretary has issued instructions to officials as to the approach to be applied in deciding whether to grant leave outside the rules. Paragraph 3.2.7d of these instructions in its current form is in the following terms:
‘Exceptional circumstances
Where the applicant does not meet the requirements of the rules refusal of the application will normally be appropriate. However, leave can be granted outside the rules where exceptional circumstances apply. Consideration of exceptional circumstances applies to applications for leave to remain and leave to enter. ‘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’.
A number of factors that may be relevant are then stated; these include the question whether the applicant's immigration status was precarious at the time when he or she began a relationship in the United Kingdom. The definition of exceptional circumstances is designed to deal with cases where hardship resulting from removal from United Kingdom would be disproportionate to the objective of maintaining consistent control over immigration policy; in such a case removal would amount to a breach of article 8. The definition has been described as giving
‘clear and appropriate guidance to relevant officials that if they come across a case falling outside the new rules, they nonetheless have to consider whether it is a case where, on the particular facts, there would be a breach of Article 8 rights if the application for leave to remain were refused’: R (Nagre) v Home Secretary, [2013] EWHC 720 (Admin), at paragraph 14 per Sales J.”
The court went on to consider the practical application of the rules at paragraphs 23‑29. It endorsed the observations and approach of Sales J at paragraphs 27-30, 36 and 49 of Nagre. It concluded:
“Conclusion
30. In summary, therefore, we are of opinion that in all cases where the right to private and family life under article 8 is invoked the first stage must be to consider the application of the Immigration Rules. The new rules are designed to cover the considerations that are relevant to an article 8 claim in a normal case. The fundamental issue raised by article 8 is an assessment of on one hand the requirements of an effective immigration policy, including the enforcement of that policy by removal from the United Kingdom, and on the other hand the right of the individual concerned to private or family life. That exercise involves an assessment of proportionality. In most cases, the new rules will ensure that assessment is properly carried out. In some cases, however, the rules will not produce a fair result that accords with article 8. In those cases the Home Secretary, acting through immigration officials, will need to consider whether leave should be granted outside the rules. That will require an assessment of the precise circumstances of the individual case, taking account of all factors that are relevant. These will include factors mentioned in paragraph 3.2.7d of the Home Secretary's instructions and also any other factors that may be relevant to the particular assessment of proportionality that is being undertaken. The relevant factors will also include those mentioned in the rules themselves, notably in rules 276ADE-276DH , and in appendix FM, including section EX of that appendix. The purpose of those provisions is to set out the factors that normally apply to the assessment of article 8 rights in an immigration context; consequently both the terms of those provisions and the underlying policy that can be discerned from those terms are of importance. They must, of course, be weighed against the other special considerations that apply in the particular case. Before it is necessary to embark on that second-stage exercise, however, the application for leave to enter or remain must demonstrate a good arguable case that leave should be granted outside the rules: that a distinct assessment of proportionality should be made to determine whether removal would infringe the applicant's article 8 rights. If that is not demonstrated, it can be assumed that the applicant's article 8 rights will be adequately dealt with by applying the new rules. Finally, the test of exceptionality should not be used any longer; instead, decision-makers should focus on the question of whether the applicant has shown a good arguable case that his or her application should be dealt with outside the rules.”
The decision of 27 March 2013
[4] The petitioner’s application for leave to remain was dealt with under the new Immigration Rules. Consideration was given within the rules to the petitioner’s article 8 claim. The application was refused.
The letter of 11 June 2013
[5] The petitioner’s solicitors wrote to UKBA by letter dated 11 June 2013 in the following terms:
“We are challenging the decision dated 27th March 2013 of the UKBA refusing our client leave to remain as the spouse of a UK national for the following reasons.
The decision maker must still go through a two stage process of not only examining the application under the new Immigration Rules but also assess the general proportionality of the decision (see MF (Article 8-new rules) Nigeria [2012] UKUT 00393 (IAC)). The decision maker has erred by failing to consider the general proportionality of the decision.
Further as stated in MF, supra, insurmountable obstacles is to be regarded as an incorrect criterion. The decision maker has erred by having reference to this test when assessing whether the client’s spouse could relocate to Pakistan.
It also seems that the decision maker has not recognised the client’s wife as a British and EU...
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