Upper Tribunal (Immigration and asylum chamber), 2015-01-27, IA/39327/2013 & IA/42445/2013
| Jurisdiction | UK Non-devolved |
| Date | 27 January 2015 |
| Published date | 22 April 2015 |
| Hearing Date | 11 December 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/39327/2013 & IA/42445/2013 |
Appeal Number: IA/39327/2013
IA/42445/2013
Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/39327/2013
IA/42445/2013
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 11 December 2014 |
On 27 January 2015 |
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Before
Deputy Upper Tribunal Judge Pickup
Between
Secretary of State for the Home Department
Appellant
and
Kemi Okegbile
Tinefe Zainab Okegbile
[No anonymity direction made]
Claimants
Representation:
For the claimants: Ms G Brown, instructed by Danielle Cohen Solicitors
For the appellant: Mr C Avery, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
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The claimants, Kemi Okebile, date of birth 21.9.71, and Tinufe Zainab Okegbile, date of birth 16.6.96, are citizens of Nigeria.
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This is the appeal of the Secretary of State against the determination of First-tier Tribunal Judge Lingham promulgated 2.9.14, allowing the claimants’ appeals against the decisions of the Secretary of State, dated 16.9.13, to refuse their applications for leave to remain in the UK, and to remove them from the UK as illegal entrants under section 10 of the Immigration and Asylum Act 1999. The Judge heard the appeal on 4.6.14, but the decision was not drafted until 15.8.14.
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First-tier Tribunal Judge Lever granted permission to appeal on 20.10.14.
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Thus the matter came before me on 11.12.14 as an appeal in the Upper Tribunal.
Error of Law
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In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the determination of Judge Lingham should be set aside.
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The relevant background can be briefly summarised as follows. The claimants made application on 22.12.12 for leave to remain outside the Rules, on the basis of human rights. The application was refused, with no right of appeal. Following an application for judicial review, the Secretary of State reconsidered the application, but refused it on 13.9.13, with a right of appeal. It follows that the application the subject of the appeal was made in 2011, prior to the coming into force of the new Rules on 9.7.12.
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Judge Lingham relied on the decision of the Court of Appeal in Edgehill v SSHD [2014] EWCA Civ 402, for authority to consider that the applications should have been considered under the old Rules.
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Rarely oddly, the judge made an Article 8 assessment outside the Rules first, before going on to consider the Immigration Rules. The correct approach is to consider the immigration rules first, before going on, if necessary to consider Article 8 ECHR outside the Rules. At §70 the judge found that the decisions of the Secretary to remove the claimants was disproportionate and thus the claimants succeeded under Article 8 ECHR. The judge then went on to find in the alternative that whilst the second claimant succeeded under the Rules, the first claimant did not. The body of the discussion of these issues, particularly between §75 and §76 is rather confused as to which claimant is being referred to.
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In essence, the ground assert that the judge erred in law by failing to identify which old Rules were relevant; erred in the reasonableness assessment; and failed to take account of section 117B of the 2002 Act as amended.
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In granting permission to appeal, Judge Lever found that it was unclear from the decision of the First-tier Tribunal which old rules applied. “That is consistent with the judge having dismissed the first appellant (mother) case under the rules. However inconsistent with that approach the judge appears to have considered the second appellant (dependant child) appeal under the new rules and found she succeeded under those rules. It is arguable therefore that there was an error of law in making an inconsistent approach to the appellants and incorrectly considering the new rules in respect of the second appellant.”
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“Further it is arguable that the judge at no stage makes reference to, or appears to consider the statutory changes brought about by the Immigration Act 2014. This is perhaps pertinent as the judge arguably makes little or no reference to the public interest factors even when conducting a balancing exercise under Razgar in the determination.”
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At §27 of the decision, the judge relied on Edgehill to find that the Secretary of State had incorrectly “applied her mind to the new rules instead of the rules that were in existence at the date of application.” The grounds rightly criticise this finding, which does not there, or anywhere else in the decision, explain what ‘old rules’ should have been applied, or purport to apply any such old rules. If the judge considered that the Secretary of State’s decision was not in accordance with the correct law, the judge should have allowed the appeals to that limited extent, to the effect that it remained for the Secretary of State to make decisions which were in accordance with the law.
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The transitional provisions accompanying the new Rules in force from 9.7.12 preserved the effect of the previous version of the Rules for applications made under the Rules prior to 9.7.12 but not decided by that date. However, this was a human rights Article 8 ECHR application, made entirely outside the Rules on form FLR(O). There were no pre-9.7.12 Rules for dealing with Article 8. The transitional provisions have no relevance to an application made entirely outside the Immigration Rules, as there was no equivalent provision under the old Rules for consideration of the application. The only framework for considering private and family life in existence at the date of decision was that of the new Rules under paragraph 276ADE and Appendix FM. The Secretary of State is required to undertake a proportionality assessment and the new Rules comprise the current framework for that assessment. This is entirely consistent with both Haleemudeen, and Edgehill.
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In R(on the application of Rafiq) [2014] EWHC 1654 the claimant Pakistani national met and married a British citizen after his student visa had expired. His application for leave to remain in the UK as a spouse was refused after amendments were made to the Immigration Rules in July 2012. The Administrative Court distinguished Edgehill. The Court found that both before and after the changes to the Rules the overriding test was that of Article 8 of the ECHR and it was reasonable for decision-makers to approach the Article 8 claim using the tests in the new Rules, bearing in mind the provisions for exceptional circumstances. The Secretary of State’s conclusion that hardship did not amount to an insurmountable obstacle was rational and had been sufficiently explained in the decision letters. However, in R (on the application of Iqbal) v SSHD [2014] EWHC 1822 (Admin) it was held that the SSHD had wrongly applied Paragraph 276ADE and Appendix FM of the Immigration Rules to her initial decision on the Claimant’s case, but that defect was cured by a supplementary decision which, albeit applying those provisions, did so in a manner which was appropriate to applications both pre and post 9 July 2012 in substance and which ensured that all conceivable Article 8 considerations, including those not expressly provided for in the provisions of the new Rules, had been assessed.
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In Haleemudeen v SSHD [2014] EWCA Civ 558 the Court of Appeal was not concerned by the fact that paragraph 276ADE had been considered even though the application preceded the new rules. It was said that paragraph 276ADE could not be disregarded even once it was clear that the case did not fall within the Immigration Rules, because although it was not dispositive, it provided guidance about the Secretary of State’s policy in the same way as paragraph 276ADE and Appendix FM.
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In the circumstances, I find that decision of the Secretary of State was in accordance with the law and that she was correct to consider Appendix FM and paragraph 276ADE, before going on to consider whether there were exceptional circumstances in which refusal would result in unjustifiably harsh consequences such that it would be disproportionate to the claimants’ private and family life rights under Article 8 ECHR.
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However, nothing of any significance follows from the application of the new Rules in the decision of the Secretary of State on the facts of the present case. That is because neither the Secretary of State nor the First-tier Tribunal Judge stopped short at the Rules. The refusal decision went on to consider whether there were compelling circumstances, which, exceptionally, would justify allowing the appeals on the basis of Article 8 ECHR. On the facts of this case, it is inevitable that an Article 8 assessment would have to be...
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