The Secretary of State for the Home Department v SS (Congo) and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Richards
Judgment Date23 April 2015
Neutral Citation[2015] EWCA Civ 387
Docket NumberCase No: C5/2014/2483, C5/2014/2968, C5/2014/3345, C5/2014/3099, C5/2014/0703, C5/2014/3322, C5/2014/3324

[2015] EWCA Civ 387

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

FIRST TIER TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Richards

Lord Justice Underhill

and

Lord Justice Sales

Case No: C5/2014/2483, C5/2014/2968, C5/2014/3345, C5/2014/3099, C5/2014/0703, C5/2014/3322, C5/2014/3324

Between:
The Secretary of State for the Home Department
Appellant
and
(1) SS (Congo)
(2) BM (Afghanistan)
(3) BB (Pakistan)
(4) FA (Somalia)
(5) AC (Canada)
(6) KG (India)
Respondents

Alan Payne & Claire Palmer (instructed by The Treasury Solicitor) for the Appellant

Richard Drabble QC, Tony Muman & Joseph Neville (instructed by J. M. Wilson Solicitors LLP) for the 1 st & 2 nd Respondents

James Dixon for the 3 rd Respondent

FA (Somalia) the 4 th Respondent did not appear

Richard Drabble QC, Tony Muman & Joseph Neville (instructed by Carlton Solicitors) for the 5 th Respondent

James Collins (instructed by G Singh Solicitors) for the 6 th Respondent

Hearing dates: 24–26 February 2015

Lord Justice Richards

Introduction

1

This is the judgment of the court, to which all its members have contributed. The section relating to the four appeals was drafted primarily by Sales LJ and the section relating to the two applications for permission to appeal out of time was drafted primarily by Richards LJ.

2

The court has before it four appeals in immigration cases and applications for permission to appeal in two other immigration cases. An application by the Secretary of State for permission to appeal in another case was withdrawn by her at the start of the hearing. The appeals and applications were listed together to allow for consideration by this court of the proper approach to be adopted, in light of new Immigration Rules promulgated in July 2012, to applications for leave to enter the United Kingdom by persons who are family members of someone already present here.

3

The new Rules are contained in Appendix FM to the Immigration Rules, which addresses the position of family members. Appendix FM constituted an attempt by the Secretary of State to reflect more precisely than before the relevant balance to be struck between the public interest and individual interests for the purposes of Article 8 of the European Convention on Human Rights (respect for private and family life), as incorporated in the Human Rights Act 1998 ("the HRA"). Appendix FM relates both to applications for leave to enter the United Kingdom ("LTE") and to applications by persons already present in the United Kingdom for leave to remain here ("LTR"). It is the effect of the LTE section of the Rules, and in particular the minimum income requirements they stipulate in respect of a person in the United Kingdom who sponsors an application for LTE by a family member overseas, which is in issue on these appeals.

4

In combination with Appendix FM (which sets out the substantive criteria according to which the Secretary of State will grant LTE or LTR, as the case may be, under the Rules), another section of the new rules, contained in Appendix FM-SE (Family members – specified evidence) to the Immigration Rules sets out evidential requirements to be satisfied if a claim for LTE or LTR under the Rules is made. The effect of Appendix FM-SE is also in issue on these appeals.

5

A challenge was brought to the legality of the LTR section of the new rules, but was dismissed in the High Court: see R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin). There was no appeal. Nagre has been affirmed by the Court of Appeal as containing an accurate statement of the law on a number of occasions since: see, for example, the recent decision in Singh v Secretary of State for the Home Department [2015] EWCA Civ 74.

6

A challenge was brought to the legality of the LTE section of the new rules in the High Court in R (MM (Lebanon)) v Secretary of State for the Home Department [2013] EWHC 1900 (Admin). Blake J declined to quash the LTE rules: [120]–[121]. Nonetheless, he went on to consider the proportionality of the LTE rules when measured against the requirements of Article 8 [122]–[148]. He found that, in relation to their application to British citizens and recognised refugees, the new LTE Rules were disproportionate as a matter of human rights law and also an irrational and unjustified restriction on rights under the law relating to recognised refugees and the constitutional rights of British citizens: [144].

7

A number of determinations followed in the First-tier Tribunal ("FTT") and Upper Tribunal which considered the ruling by Blake J in MM (Lebanon) and followed and applied his reasoning in relation to the new LTE Rules. The Secretary of State maintains that the present cases before this court fall into this category. The Secretary of State says that, as a result of the decision to follow and apply the reasoning of Blake J in MM (Lebanon), the FTT and the Upper Tribunal fell into error, in that they failed to give proper weight to the legitimate public interest considerations which underlay the formulation of the LTE section of Appendix FM and Appendix FM-SE. In the cases now before the court, the FTT made orders (which were upheld by the Upper Tribunal) to grant LTE where LTE had been refused by various Entry Clearance Officers. The Secretary of State submits in these cases that her appeals should be allowed and that LTE should be refused or the matter remitted to be reconsidered at Tribunal level.

8

These and other appeals were stayed while the Secretary of State brought an appeal in MM (Lebanon) itself. By a judgment handed down on 11 July 2014 ( [2014] EWCA Civ 985; [2014] Imm AR 6) the Court of Appeal unanimously allowed the appeal and reversed Blake J's judgment in relation to his findings that the new LTE Rules were disproportionate and irrational: see [136]–[154] in the leading judgment of Aikens LJ. The main question which now arises on the present appeals is whether the decisions of the FTT are so affected by the now overruled reasoning at first instance in MM (Lebanon) that the Secretary of State's appeals should be allowed.

The basic legal framework

9

Under the Immigration Act 1971, the Secretary of State has power to make Immigration Rules governing the grant of LTR and LTE and other matters. These are promulgated under the negative resolution procedure. In relevant part, the Immigration Rules set out the conditions which need to be satisfied in order for an applicant to be granted LTR or LTE under the Rules themselves.

10

An applicant who can show that he or she satisfies the relevant conditions stated in the Rules will be entitled to LTR or LTE (as the case may be) under the Rules. If they can do that, they do not need to rely on wider rights which they may have under Article 8 or other Convention rights incorporated in the HRA.

11

Under the 1971 Act, the Secretary of State has a wide residual discretion to grant LTR or LTE outside the Rules, i.e. where an applicant cannot show that they satisfy the conditions in the Rules themselves: see R (Munir) v Secretary of State for the Home Department [2012] UKSC 32; [2012] 1 WLR 2192, at [44]. An applicant who does not satisfy the conditions stipulated in the Rules may nonetheless have a good claim to be entitled to enter the United Kingdom or to be allowed to remain here by reason of their Convention rights, e.g. Article 3 (protection against torture and inhumane treatment) and Article 8. Such a claim arises by virtue of the obligation of the Secretary of State under section 6(1) of the HRA to act in a manner compatible with an individual's Convention rights.

12

If particular Immigration Rules were formulated in a completely irrational way, it is possible that their lawfulness could be challenged on ordinary domestic public law grounds: see Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, at [6] per Lord Bingham. It seems that this was a dimension of the legal challenge to the new LTE Rules brought in MM (Lebanon): see above. However, such a challenge is likely to be difficult to sustain.

13

By contrast, in the context which we are dealing with, the fact that particular Immigration Rules do not, taken by themselves, necessarily fulfil the requirements of Convention rights with respect to immigration decisions, does not lead to the conclusion that the Rules are unlawful. 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: see, in particular, Huang, above, [17]; AM (Ethiopia) v Entry Clearance Officer [2008] EWCA Civ 1082; [2009] Imm AR 254, [38]–[39]; Nagre, above, [35]–[36] ("No matter how closely, or not, the new rules track the detailed application of Article 8 in individual cases, the immigration control regime as a whole (including the Secretary of State's residual discretion) fully accommodates the requirements of Article 8. The fact that the new rules do not do that in all cases by themselves does not render them unlawful"); and MM Lebanon [2014] EWCA Civ 985, [128] and [134]–[135]. In MM (Lebanon) in the Court of Appeal, this was one basis on which the challenge to the lawfulness of the new LTE Rules by reference to Article 8 failed.

14

However, the width of the gap between what the Immigration Rules set out by way of entitlement to enter or remain in the United Kingdom and the...

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