ON APPEAL FROM THE ADMINISTRATIVE COURT
Charles George QC (sitting as a Deputy High Court Judge)
ON APPEAL FROM UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER
Mr Justice Cranston and Senior Immigration Judge Gill
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THOMAS
LORD JUSTICE ELIAS
| THE QUEEN ON THE APPLICATION OF SYED
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
|HARSHADBHAI GORDHANBHAI PATEL
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Matthew Barnes (instructed by Treasury Solicitors) for the Respondent
Hearing dates : 21st July 2011
Crown Copyright ©
Sir Anthony May President of the Queen's Bench Division:
This is the judgment of the court.
Mr Syed's application for Indefinite Leave
The Immigration Rules
Mr Syed's judicial review claim
Mr Patel's application for Indefinite Leave
Mr Patel's appeal
The Pankina point
"In this country, successive administrations over the years have endeavoured, in Immigration Rules and administrative directions revised and updated from time to time, to identify those to whom, on grounds such as kinship and family relationship and dependence, leave to enter or remain should be granted. Such rules, to be administratively workable, require that a line be drawn somewhere."
Laws LJ then said in paragraphs 38 and 39:
"It is thus in the nature of the Immigration Rules that they include no over-arching implicit purposes. Their only purpose is to articulate the Secretary of State's specific policies with regard to immigration control from time to time, as to which there are no presumptions, liberal or restrictive. The whole of their meaning is, so to speak, worn on their sleeve. Mr Gill's plea for a construction which gives added value to family life assumes, or asserts, an internal force or impetus which the rules entirely lack. There is no material basis for the suggestion that Mr Gill's favoured construction must be adopted to save the vires of the relevant Rules. Indeed in light of MW (Liberia) I do not consider that he was entitled to advance such a submission.
The linked argument that third party support must be admitted for compliance with ECHR Article 8 is likewise without merit, and for a shorter reason. It is well established that a prospective immigrant may have no claim to enter or remain under the Rules, and yet may succeed under Article 8: see for example Huang paragraph 6, and also paragraph 17: "It is a premise of the statutory scheme enacted by parliament that an applicant may fail to qualify under the Rules and yet may have a valid claim by virtue of Article 8". Mr Gill, however, must assert a contrary premise: he must say that the prospective immigrant's Article 8 rights have to be systematically protected by the Rules, since to the extent that they are not so protected there will on his argument be a violation of the Article. But this premise is plainly false. The immigrant's Article 8 rights will be (must be) protected by the Secretary of State and the court whether or not that is done through the medium of the Immigration Rules. It follows that the Rules are not of themselves required to guarantee compliance with the Article."
"… (b) at whatever point the facts are to be tested, is the policy to be applied as a policy or as a rule? (c) in applying it, does the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 8 have any application? (d) if not, does Article 8 have any independent application?"
"41 More difficult are the final questions, 2(c) and (d) – whether and how article 8 may have a bearing on Tier 1 claims. The initial submission of all the applicants' counsel was that, if all else failed, the Home Secretary and, if need be, the tribunal must give independent consideration to whether removal was proportionate in the light of whatever family and private life the applicant had meanwhile established here.
42 The applicant Irfan Ali succeeded before an immigration judge (Immigration Judge Morgan) on this ground, but the decision was overset on reconsideration. Ms Giovannetti submits that the entire exercise was off limits: the rules are the sole test of eligibility, she submits, and article 8 cannot be used to modify them. As the Home Office put it in seeking and obtaining an order for reconsideration, "the rules are black letter law". The contention might be stronger if the Home Secretary had not purported to reserve to herself a margin of discretion in relation to those applicants who comply with the rules: is article 8 to be ignored there as well? But her real difficulty lies in section 6 of the Human Rights Act 1998, which by subsection (1) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.
43 For the most part this obligation has been respected by the inclusion in the immigration rules themselves of requirements either corresponding to or reproducing those Convention rights which the rules bring into play. But in so far as this has not been done – and it has not been done in relation to Tier I migrants – are the rules ring fenced by section 6(2) This provides:
"Subsection (1) does not apply to an act if – (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."
"Subordinate legislation" is exhaustively defined by section 21(1). The closest category to the immigration rules is:
"(f) order, rules, regulations, scheme, warrant, byelaw or other instrument made under primary legislation (except to the extent to which it operates to bring one or more provisions of that legislation into force or amends any primary legislation) …"
44 The immigration rules, notwithstanding the status they have by now acquired, are none of these. They are rules, but – as discussed earlier in this judgment – by deliberate choice they are not made under primary legislation. This, no doubt, is why Ms Giovannetti has not sought to block the argument at the threshold by reliance on section 6(2); but it also means that there is no obstacle in principle to the contention that in applying the rules the Home Secretary must respect Convention rights whether or not the rules explicitly introduce them.
45 There appears to me in this situation, to be no escape from the proposition that in exercising her powers, whether within or outside the rules of practice for the time being in force, the Home Secretary must have regard and give effect to applicants' Convention rights. This will mean in most cases evaluating the extent and quality of their family and private life in the United Kingdom and the implications, both for them and for the United Kingdom, of truncating their careers here.
46 That in turn will require consideration of the significance of the criteria by which their eligibility has been gauged and found wanting. It is one thing to expect an applicant to have the necessary academic and linguistic qualifications: here a miss is likely to be as good as a mile. It is another for an applicant to fall marginally or momentarily short of a financial criterion which in itself has no meaning: its significance is as a rough and ready measure of the applicant's ability to continue to live without reliance on public funds. Having £800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds. The Home Office has to exercise some common sense about this if it is not to make decisions which disproportionately deny respect to the private and family lives of graduates who by definition have been settled here for some years and are otherwise eligible for Tier I entry. If the Home Secretary wishes the rules to be blackletter law, she needs to achieve this by an established legislative route.
47 So long as the rules are what the Immigration Act 1971 says they are, they must in my judgment be operated in conformity with section 6 of the Human Rights Act 1998. This means that I would answer question 2(c) affirmatively, and that questions 2(d) becomes academic."
"51 Ms Malekia had at no relevant time as much as £800 in her bank account. She lost on this ground, and the elimination of the three-month requirement cannot help her. But there remains her article 8 claim. This was expressly excluded, however, from the order for reconsideration made by the High Court, with the result that it played no part in the reconsideration determination made by Senior Immigration Judge Storey and Senior Immigration Judge Perkins and forms no part of the appeal before this court.
52 It was, however, adjudicated on initially by Immigration Judge Ross, who concluded his determination with a consideration of this issue. He was plainly no unsympathetic to Ms Maleckia, who had qualified here as a nurse, but he noted her evidence that she lived here alone and no relative here closer than a cousin. Her mother lives in Tanzania. He made what was even so the surprising finding that this applicant had no private life here (he said nothing about family life). But he then went on to consider whether, if this was wrong, the impact of removal would be sufficient to engage article 8, and concluded that it would not.
53 I am bound to say that one would have expected a finding, on these facts, that while the family life limb of article 8 was not engaged, the private life limb was, but not to an extent sufficient to outweigh the requirements of immigration control. If I thought that an article 8 claim could succeed in Ms Maleckia's case I would want to know whether the Home Secretary was prepared to reconsider the claim; but I see no prospect of its success and would therefore dismiss Ms Maleckia's appeal."
Rimer LJ and Sullivan LJ agreed with Sedley LJ's judgment.
"There is, of course, no doubt that the Immigration rules made under the Immigration Act must be implemented in order to give effect to Convention rights: R (Pankina) v Secretary of State for the Home Department  EWCA Civ 719. However, that does not, in my judgment, mean that the Secretary of State is necessarily obliged to consider them at the stage of deciding whether to grant ILR: it depends on the provision under which ILR is sought and the particular circumstances of the application. There may be cases (such as those to which I have referred) where it would make little or no sense not to take into account Article 8 rights at that stage. On the other hand, in a case like the present (where the Claimant is a single man with no obvious family life in the UK, though undoubtedly a private life), it would not necessarily be illogical or irrational not to do so, but to delay doing so until the decision to enforce removal is taken, if it is. At least at that stage a right of appeal is generated. One can sympathise fully with the concerns and uncertainties that this may engender for someone in the position of the Claimant and one can understand also the general preference for having a decision which could be the subject of an appeal on the merits to an independent tribunal. One can also see that in some circumstances collecting all these matters together and making a decision at one point would be an obviously satisfactory, efficient and fair process. But it does not seem to me to have been irrational not to take account of Article 8 considerations (even though they could plainly have been considered) at any earlier stage in the process concerning the Claimant provided, of course, that they are considered fully at a stage in the process when, if the decision is adverse, an appeal to an independent tribunal can take place. This seems to me to be consistent with the approach of Wyn Williams J in Daley-Murdock and Collins J in Suphachaikosol. I note that Ouseley J, when he considered this case on the papers in August 2009, said that "the Article 8 issue does not yet arise." I do not consider the approach to be inconsistent with what was said in Pankina."