England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
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
IA/08177/2010
[2010] EWHC 2888 (Admin), CO/7039/2010

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/09/2011

Sir Anthony May President of the Queen's Bench Division:

This is the judgment of the court.

Introduction

1. These two immigration matters, a judicial review claim (R (Syed) v Secretary of State) against a decision of the Secretary of State for which permission was refused in the Administrative Court, and a second appeal (HP (India) v Secretary of State) against a decision of the Upper Tribunal Immigration and Asylum Chamber, both fell apart during the course of the hearing before this court. They were both examples of cases which came forward on incomplete relevant information or with incomplete attention to information which was available; and where it was supposed that points which had not featured before the lower court or tribunal could be introduced into argument without proper regard for any necessary structure which the proceedings before this court should require. It emerged that neither case has any real arguable merit, as Mr Zane Malik, who appeared on behalf of both Mr Syed and Mr Patel, was constrained to accept.
2. On 14^th December 2010, Sir Richard Buxton considered Mr Syed's grounds of appeal against the Administrative Court's refusal of permission to bring judicial review proceedings. He wrote that the grounds of appeal did not make out a case and permission was not granted to pursue them. He noted, however, that the skeleton submission drew attention to paragraph 46 of the judgment of Sedley LJ in this court in Pankina v Secretary of State [2010] EWCA Civ 719, which he found "difficult to interpret other than as a general ruling that, in any use by the Secretary of State of powers of expulsion under the Immigration Rules, attention must be paid to the Article 8 rights of the applicant, either explicitly in the content of the rule (not this case) or by express consideration by the decision-maker (not this case either)". That enquiry was not, as the judge thought, excluded by MD (Jamaica) v Secretary of State [2010] EWCA Civ 213, because the point was not resolved in that appeal. Sir Richard Buxton granted limited permission for judicial review on that basis.
3. Arising out of this, the main submission on behalf of Mr Syed (and the only one for which permission has arguably been granted) is that the Immigration Rules should, so far as is relevant to his case, be read and given effect under section 3 of the Human Rights Act 1998 so as to make them compatible with his rights under Article 8 of the European Convention on Human Rights; and that, upon such reading, the Secretary of State acted unlawfully in deciding on 22^nd May 2009 to refuse his application under the Immigration Rules to remain in the United Kingdom on the basis of his continued residence in the United Kingdom for 10 years. The submission is that paragraphs 38 and 39 of the judgment of Laws LJ in AM (Ethiopia) v Entry Clearance Officer [2009] Imm AR 2 and paragraphs 41 to 47 of Sedley LJ's judgment in Pankina are inconsistent; and that Sedley LJ's judgment should be preferred as superseding that of Laws LJ. This is on the face of it a respectable argument, although we do not accept it (see below). But we note here that AM (Ethiopia) was not referred to in the judgment in Pankina although it was cited to the court; and that, if there were an inconsistency, AM (Ethiopia) should have been binding in Pankina. The difficulty with the superficially respectable argument is that it now appears that, on the facts as we now know them, Mr Syed's Article 8 rights have not even arguably been infringed. It was on our discovery of this, that his case fell apart.

Mr Syed's application for Indefinite Leave

4. Mr Syed is a national of Pakistan, born on 19^th May 1980, who came to the United Kingdom on 1^st October 1998 as a student. Since then, he has been lawfully present in the United Kingdom, except for two periods when he was here without leave because he had failed to apply in time for the renewal of his limited leave to remain. On each occasion, he applied after the expiry of the previous leave, and he was granted a further limited leave. One such period of leave was due to expire on 30^th June 2009, when the Secretary of State decided, on 22^nd May 2009, not to grant his application for indefinite leave to remain under the Immigration Rules.
5. The periods during which Mr Syed was in the United Kingdom without leave were between 1^st October and 9^th December 2003 inclusive (70 days) and between 1^st and 8^th December 2004 inclusive (9 days). In an affidavit sworn on 24^th June 2009, he explained these gaps, so far as he was able to remember, as relating, in 2003, to difficulties in obtaining signed papers from his University's school office, and, in 2004, to a medical condition. He stated that he had always been law abiding and conscientious about his immigration status. He had tried to submit applications on time, but on these occasions there had been difficulties. Both Dobbs J, who refused permission for judicial review on the papers, and Charles George QC sitting as a deputy High Court Judge, who refused permission after an oral hearing, agreed with the Secretary of State that these reasons were unsupported by any evidence other than Mr Syed's speculative recollection.
6. Mr Syed had written to the Immigration Authorities on 22^nd October 2008 in support of his application for indefinite leave to remain. There was one paragraph in part explanation of why he had been late making earlier applications; and three short paragraphs in support of his character, education and his past and future part time work. Mr Malik, on his behalf, attempted to elevate this into an assertion of Article 8 rights in support of his application, which it plainly was not. The Secretary of State refused his application on 22^nd May 2009, because he had failed to show that he had completed 10 years continuous lawful residence in the United Kingdom because of the two gaps. The letter stated explicitly that he was not required to leave the United Kingdom as a result of the decision. The question of interference with his private life did not therefore arise. He does not assert a family life in the United Kingdom.
7. We are told that, before 30^th June 2009, he made an application to enable him to read for a Masters degree. Leave to remain for 3 years was granted to preserve his legal status with effect from 1^st September 2009 and to run to 15^th August 2012. In the light of this, Mr Malik accepted that Mr Syed has and had no case that his Article 8 rights were infringed by the decision of 22^nd May 2009, so that a necessary factual plank of this appeal is removed and the appeal must fail. The Pankina issue is entirely academic in his case and, as will appear, not in issue in the HP (India) case. We have nevertheless decided to address that issue, since it was argued before us and since the whole purpose of Sir Richard Buxton giving permission was to enable the point to be considered.

The Immigration Rules

8. The Immigration Rules are made by the Secretary of State and approved by Parliament under section 3(2) of the Immigration Act 1971. They are rules as to the practice to be followed in the administration of the 1971 Act for regulating the entry into and stay in the United Kingdom of persons who are required to have leave to enter, including rules as to the period for which leave is to be given and the conditions to be attached in different circumstances.
9. By paragraph 276C and D of the Rules, indefinite leave to remain on the ground of long residence may be granted provided that the Secretary of State is satisfied that each of the requirements of paragraph 276B is met; but it is to be refused if the Secretary of State is not so satisfied. One of the requirements of paragraph 276B is that the applicant has had at least 10 years continuous lawful residence in the United Kingdom. "Continuous residence" is defined in paragraph 276A(a) as residence in the United Kingdom for an unbroken period, for which purposes absence from the United Kingdom for a period of 6 months or less is not considered to break the period of lawful residence if the applicant has existing limited leave throughout the period of absence. "Lawful residence" is defined by paragraph 276A(b) to include continuous residence pursuant to existing leave to enter or remain. Mr Syed did not qualify for indefinite leave to remain under these rules because, by reason of the two gaps, he had not had 10 years continuous lawful residence in the United Kingdom.
10. The Secretary of State issues Immigration Directorates' Instructions to her immigration caseworkers. Paragraph 2.3 of the section dealing with long residence in the version of these instructions issued in April 2009 deals with continuous lawful residence. Paragraph 2.3.3 is headed "Breaks in lawful residence and the use of discretion". This states that caseworkers should be satisfied that the applicant has acted lawfully throughout the entire period and has made every attempt to comply with immigration rules. If an applicant has a single short gap of lawful residence through making one single previous application out of time by a few days (not usually more than 10 calendar days out of time), caseworkers should use discretion granting indefinite leave to remain, so long as the application meets all the other requirements. It would not usually be appropriate to exercise discretion when an applicant has more than one gap in their lawful residence because they submitted more than one of their previous applications out of time, as they would not have shown the necessary commitment to ensuring that they had maintained lawful leave throughout their time in the United Kingdom (the emphases are in the text). It might be appropriate for the caseworker to use their judgment where an applicant had submitted a single application more than 10 days out of time if there are extenuating reasons for this. This must be discussed with a senior caseworker. Examples are given to illustrate these instructions, which are clear cut instructions to subordinate caseworkers requiring the exercise of modest discretion only in what are no doubt repetitive circumstances. Mr Syed did not qualify for discretionary treatment under these instructions because he had two gaps in his lawful residence, one of which was substantially more than 10 days.
11. A previous version of the Instructions in force between March 2006 and June 2008 (but not in 2009) had provided that a short delay in submitting an application would be overlooked provided that the application was subsequently granted.
12. Paragraph 10.1 of the Immigration Directorates' Instructions addresses, under the heading "Refusal of Indefinite Leave to Remain", human rights considerations. This notes that, since applicants for indefinite leave to remain will have spent a number of years in the United Kingdom, there may be the need to consider human rights grounds, if the applicant does not satisfy the long residence criteria. These grounds could be raised specifically by the applicant or they may be implicit. For example, consideration of Article 8 would be appropriate if the applicant is in a relationship with a settled person (which Mr Syed is not). If it is considered that human rights grounds do not merit the grant of leave, the reasons should be included in the refusal notice. If the person does have a legitimate claim to remain in the United Kingdom under Article 8, the period of leave to be granted should be determined in accordance with the policy on discretionary leave. Mr Syed did not raise human rights grounds explicitly in his application letter. He scarcely raised them implicitly or, if he did, they were conspicuously weak. This paragraph of the instructions, however, shows that there is no need to modulate the meaning of the Immigration Rules to achieve their compliance with Article 8 because, if the applicant does not satisfy the long residence criteria but has a Human Rights claim not to be removed, that claim can be accommodated by other means.

Mr Syed's judicial review claim

13. Mr Syed issued judicial review proceedings on 6^th July 2009. He relied on three grounds to challenge the Secretary of State's refusal of indefinite leave to remain. He contended that the Secretary of State had misconstrued paragraph 276B of the Immigration Rules; that she had failed to give effect to the appellant's legitimate expectation; and that she had erred in failing to exercise her discretion in his favour. He did not expressly rely on Article 8 at this stage. Dobbs J refused permission on the papers on 20^th November 2009, writing that, in the light of the gaps, it was not arguable that the Secretary of State had exercised her discretion unreasonably or irrationally.
14. Mr Syed renewed his application for permission contending (what is now conceded to be unarguable) that the Secretary of State's decision amounted to a disproportionate breach of the appellant's Article 8 rights. It was further contended on his behalf that it should follow from Pankina that paragraph 276B of the Immigration Rules should be construed as having regard and giving effect to Article 8, and that a stringent reading of paragraph 276B does not sit easily with Article 8 Convention rights. On 13^th August 2010, Charles George QC, sitting as a deputy High Court Judge, refused permission. On 15^th March 2011, Sir Richard Buxton granted limited permission in the terms we have referred to.

Mr Patel's application for Indefinite Leave

15. On 2^nd March 2011, Harshadbhai Patel, the appellant in the second appeal before this court, was given permission to appeal to this court from the second appeal decision of the Upper Tribunal Immigration and Asylum Chamber of 18^th October 2010 by Sullivan LJ in respect of his Article 8 appeal to the Upper Tribunal "in view of the grant of permission to appeal by Sir Richard Buxton in Syed". Sullivan LJ did not consider it appropriate to confine the scope of the substantive grounds to what was conceived as the Pankina point, and so he gave permission to argue other linked points.
16. Mr Patel is a national of India, born on 20^th July 1944. He had on occasions visited the United Kingdom, and he last entered on 22^nd March 2009 with leave to remain as a visitor. On 8^th September 2009, he applied for indefinite leave to remain in the United Kingdom as the parent of a person, his son, present and settled in the United Kingdom under paragraph 319 of the Immigration Rules and with reference to paragraphs 317(iii) and 317(v).
17. Paragraph 319 of the Immigration Rules provides that indefinite leave to remain in the United Kingdom as the parent or other dependent relative of a person present and settled in the United Kingdom is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 317(i)-(v) is met. The requirement in paragraph 317(iii) is that the applicant is financially wholly or mainly dependent on a relative present and settled in the United Kingdom. The requirement in paragraph 317(v) is that the applicant has no other close relatives in his own country to whom he can turn for financial support. The Secretary of State refused the application by letter dated 26^th January 2010 because it failed to meet these two requirements. It was noted that, on his visa application of 16^th March 2009, Mr Patel had stated that he owned a house and received an income from stocks and shares; and that, on his sponsor's questionnaire, it was stated that he only received 30-40% financial support from his sponsor and that the had another son living in India.

Mr Patel's appeal

18. Mr Patel appealed this decision to the First Tier Tribunal. In a determination of 18^th May 2010, Immigration Judge Sweet dismissed the appeal, concluding that the appellant had not satisfied the requirements of paragraph 317. He found that Mr Patel was previously living in India in his father in law's house with his wife, but that consequent on his wife's death on 19^th December 2008 he had been living there with his other son. The evidence regarding the size of the property was contradictory. His sponsor son had stated that the property had one bedroom only, but Mr Patel said it had 3 bedrooms. There was also conflicting evidence about Mr Patel's income. In his witness statement, he had stated that he did not have any stocks and shares. In his oral evidence he had stated that he did have stocks and shares and indeed an income from that source. It was also stated in his sponsor's questionnaire that his sponsor son provided regular financial support while he was in India amounting to 35-40% of his total finances. The judge found that Mr Patel had other sources of income, including a pension. There was no documentary evidence to confirm that his sponsoring son had been paying £500-£600 every 3 to 4 months for 4 years.
19. As to close relatives in India to whom he could turn for financial support, the judge found that Mr Patel had been living with his other son, who had provided an affidavit dated 4^th August 2009 confirming his employment and his monthly net pay. He stated, however, that the salary was insufficient to care for his father. In September 2009, this son had lost his job and was unable to find alternative employment. Relations between Mr Patel and this son had apparently broken down. The judge was surprised that the loss of this son's job had not been mentioned previously. The judge found that there was insufficient evidence that Mr Patel did not have other close relatives in his own country to whom he could turn for financial support. He found that he was only 35-40% dependent on his sponsor son. He was not therefore wholly or mainly dependent financially on this son in the United Kingdom.
20. Mr Patel applied for permission to appeal to the Upper Tribunal Immigration and Appeals Chamber on the ground that Immigration Judge Sweet was wrong not to consider an Article 8 claim made by Mr Patel and in misconstruing the provisions of paragraph 317 of the Rules. On 15^th July 2010, Senior Immigration Judge McGeachy granted permission on the Article 8 ground, but refused it on the paragraph 317 ground. He wrote that the immigration judge was entitled to find that the appellant did not qualify under paragraph 317 of the Rules.
21. The Article 8 appeal was heard and determined in the Upper Tribunal by Cranston J and Senior Immigration Judge Gill on 4^th October 2010. They held that the Secretary of State's refusal of leave to remain was not an infringement of Mr Patel's Article 8 rights and they dismissed the appeal. They noted in their judgment (a) that it was conceded that Article 8 had not been raised before the immigration judge, and (b) that no permission had been given to appeal against the immigration judge's decision on the Immigration Rules.
22. Mr Patel does not seek to challenge in this court the Upper Tribunal's decision that the Secretary of State's refusal of leave to remain was not a breach of Article 8 (which would render academic in Mr Patel's case the contention that the Immigration Rules should be construed in his case so as to conform with Article 8). He does seek to resurrect in this court as a substantial ground of appeal that the First Tier Tribunal misconstrued paragraph 317 of the Immigration Rules. This is, however, an incompetent appeal to this court, because Mr Patel was refused permission to appeal to the Upper Tribunal on that ground; he never renewed the application for permission to the Upper Tribunal; and, even if he had, there is no appeal to this court against a (putative) refusal of such permission – see section 13(8)(c) of the Tribunals Courts and Enforcement Act 2007. The appeal in Mr Patel's case is summarily dismissed for these reasons. It should never have been brought on the basis on which it was brought. Mr Malik's contention that, under the 2007 Act, the partial grant of permission opens up for consideration other grounds of appeal for which permission was refused is hopeless.
23. We simply record for completeness that the incompetent paragraph 317 ground of appeal sought to contend that this paragraph too of the Immigration Rules should be construed "having regard to and giving effect to the Article 8 principle" in reliance on Pankina and with reference to paragraph 2 of Chapter 8, Section 8, Annex V of the Immigration Directorates Instructions of July 2006. This would not have added materially to the consideration we shall give to the Pankina point in following paragraphs of this judgment. It does, however, illustrate that, if the submission based on Pankina were to be correct, it would require the court to modulate any of the very many paragraphs of the Immigration Rules whose application to a particular case was perceived to produce a decision which infringed an applicant's Article 8 rights. This would not only be impracticable, but would present subordinate caseworkers with a near impossible task. What is more, section 3 of the Human Rights Act 1998 requires the court to read and give effect to legislation, so far as it is possible to do so, in a way which is compatible with the Convention Rights. This is a process, if it is possible, of modulated construction of the legislation, not a convenient rewriting of it to suit an individual case. In Mr Syed's case, we invited Mr Malik to say what in his submission the modulated construction of paragraph 276B should be, and he struggled to do so. He said that he was not inviting the court to rewrite the rules; and that the court should "read them down" for short gaps in continuous lawful residence. Although this expression is sometimes used, it often (and, we think, here) avoids the necessary question of defining what the read down construction should be.

The Pankina point

24. The appeals in AM (Ethiopia) raised the question whether, for the purposes of paragraphs 281, 297 and 317 of the Immigration Rules (as amended), persons seeking entry to the United Kingdom to join family members settled here could rely on third party financial support to establish that they would not need recourse to public funds. Laws LJ gave the leading judgment. The appellants' leading counsel argued for a purposive construction of the rules, the relevant purpose being the promotion of family life. That argument had been rejected in MW (Liberia) v Secretary of State [2007] EWCA Civ 1376; 2008 1 WLR 1068, but a purposive construction had been adopted by Collins J in Arman Ali [2000] 1 NLR. Dyson LJ had seen a difficulty in this in paragraph 24 of his judgment in MB (Somalia) [2008] EWCA Civ 102, and it was rejected by Laws LJ himself in paragraph 59 of MB (Somalia), where he said that the policy's direction was entirely for the Secretary of State subject to parliamentary approval and that the purpose of the Rule was necessarily satisfied by the ordinary meaning of its words. Laws LJ then cited paragraph 6 of the House of Lords' opinion in Huang [2007] 2 AC 167 as follows:

"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."

25. Carnwath LJ dissented in part (but not in the result) as to the construction of paragraph 317, which is not relevant for present purposes. He said, at paragraph 101, that the third party support issue was one of interpretation of the relevant rules. The cases referred by Laws LJ established, at least in this court, that the answers are to be found in the ordinary language of the rules, without distortion by a reference to any supposed over-arching objective, such as the promotion of family life. He cited MB (Somalia).
26. Pill LJ, in paragraph 119, expressed agreement with Laws LJ's conclusion, at paragraph 39 that the rules are not themselves required to guarantee compliance with Article 8 of the Convention. The Secretary of State is bound by the Convention whether or not there are appropriate provisions in the rules. Pill LJ considered, however, that it was highly desirable that the rules are framed in such a way that they comply with Convention rights.
27. Those judgments are, in our view, unambiguously clear. They are binding on this court, and contrary to the point which Mr Malik wanted to advance in these cases. The binding nature of what Laws LJ said is reinforced, if it need be, by his citation from Huang, which is also binding.
28. AM (Ethiopia) was appealed to the Supreme Court [2010] 1 WLR 48, where the appeal was allowed on the construction of the rules and MW (Liberia) was disapproved. But this result was achieved without any reference to Article 8, and Lord Brown of Eaton-under-Heywood, who rehearsed in paragraphs 29 and 30 the point about Article 8 which Laws LJ had decided in the Court of Appeal, said at paragraph 31 that is was unnecessary to decide the point. Lord Brown also said at paragraph 10 that the rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are a statement of the Secretary of State's administrative policy.
29. In MD (Jamaica) v Secretary of State [2010] Imm AR 3, [2010] EWCA Civ 213, the construction of paragraph 276 of the rules was in issue in two cases. In each of these, periods of otherwise long residence had been interrupted by gaps between the expiry of one leave and an application for its renewal. Reliance was placed on the "long residence concession" in the 2006 version of the Immigration Directorates' Instructions to which we have referred. It was held that the concession was irrelevant to the construction of the rule – each were serving a different purpose; that no implication was to be drawn as to the lawfulness of previous residence from the fact that limited leave to remain was granted after a break for the future; that the definition in paragraph 276A(b) was exhaustive and there was no reason to give a strained and artificial meaning to the clear words of paragraph 276B(1)(a); and that there was nothing absurd in giving the rule its plain and ordinary meaning. Dyson LJ noted in paragraph 20 that the appellant's leading counsel did not submit that the rule should be interpreted compatibly with Article 8 of the Convention. Counsel had reserved the right to do so in the Supreme Court, the point having been left open there in the AM (Ethiopia) appeal. It is inferentially obvious that what Laws LJ had said in paragraphs 38 and 39 of AM (Ethiopia) was taken to be binding in this court.
30. In Pankina, the applicant graduates sought leave to remain and work in the United Kingdom. By paragraph 245Z of the Statement of Changes in Immigration Rules (1994) as inserted, they had to meet certain requirements including demonstrating that they had sufficient funds to maintain themselves. A subsequent Statement of Changes required an applicant to have £800 and to provide specified documents. In one of the cases, at no material time did the applicant have £800. In all other cases, the applicants produced statements showing the requisite sum, but not for three unbroken months. The applications were refused, but in five of the cases appeals were allowed on grounds which are not material to the present discussion. In the case of the applicant who never had £800, her appeal was dismissed on the basis that, although the Secretary of State had to have regard and give effect to the applicant's Convention rights whether within or outside the rules of practice for the time being in force, there was no prospect of this applicant establishing that her rights under Article 8 of the Convention had been infringed.
31. Our attention was drawn to the submission of counsel for the Secretary of State recorded at page 384 F-H of the report of Pankina [2011] QB 376 to the effect that the relevant rule was not primarily intended to protect or benefit applicants, but to operate in the public interest by encouraging able and talented applicants to remain in the United Kingdom and to contribute to society – an argument to the implicit effect that Article 8 was not relevant. It was this submission which the court rejected.
32. Three of the questions that had been formulated for the court's consideration were (paragraph 23):

"… (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?"

33. The full passage in Sedley LJ's judgment on which reliance is placed is as follows:

"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."

34. The decision in the case of the applicant who never had £800 was given in these terms:

"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.

35. It is, in our judgment, entirely clear that Sedley LJ's judgment in Pankina is not inconsistent with paragraphs 38 and 39 of Laws LJ's judgment in AM (Ethiopia). Pankina does not decide, as Mr Malik contends, that the Immigration Rules are to be construed so as to be compliant with Article 8 of the Convention; that is that their wording is to be modulated so as to be compliant. They are to be construed and applied according to their natural and ordinary meaning. In applying the policy of the rules, Article 8 may have an application – Pankina paragraphs 23 and 47. In applying the rules, the Secretary of State must respect Convention rights whether or not the rules explicitly introduce them – Pankina Paragraph 44. In exercising her powers, whether within or outside the rules of practice, the Secretary of State must have regard and give effect to applicants' convention rights – Pankina paragraph 45. 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 – AM (Ethiopia) paragraph 39. The actual decision in Pankina rejected the second applicant's appeal by deciding her Article 8 claim on a free-standing basis apart from the rules, which she failed to satisfy.
36. In our judgment, Foskett J expressed a correct appreciation of the effect of Pankina in paragraph 129 of his judgment in R (Nough) v Secretary of State [2010] EWHC 2218 (Admin) as follows:

"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 [2010] 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."

37. We have already indicated that Mr Syed's appeal fails comprehensively on the facts. He was granted leave to remain for 3 years, and there was no arguable infringement of his Article 8 rights. The decision which he challenged was not a decision to remove him – it positively stated otherwise – only to refuse his long residence application. If a decision had been under consideration which affected his Article 8 rights, the Secretary of State would have had to have regard to those rights, but that would not have required a construction of the rules which was not their natural and ordinary meaning. If a decision under the rules produced a result which is not Article 8 compliant, some discretionary action outside the rules would be needed to avoid that result.
38. For these reasons, the appeals in each of these cases are dismissed.