England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/05/2014

Lord Justice Beatson :

I. Introduction

1. This is an appeal by Mr Meera Muhiadeen Haleemudeen against the decisions of the Upper Tribunal (Immigration and Asylum Chamber) ("UT") dated 27 March 2012 and 11 June 2013. In its first decision in March 2012, the UT set aside a decision of the First Tier Tribunal ("FTT") promulgated on 3 January 2013. It concluded that the determination by the FTT that Mr Haleemudeen's removal from the United Kingdom would be a disproportionate interference with his right to private life under Article 8 of the European Convention on Human Rights ("ECHR") contained errors of law because the reasons given were not sufficient. It set the determination aside. In its June decision, the UT re-made the decision, found that removing Mr Haleemudeen would not be disproportionate or unlawful, and dismissed his appeal against the decision of the Secretary of State to remove him.
2. The underlying decisions of the Secretary of State are dated 1 and 16 October 2012. The first refused Mr Haleemudeen's application, dated 28 February 2012, for indefinite leave to remain in the United Kingdom on the basis of the 10 years continuous lawful residence provisions in paragraph 276B of the Immigration Rules (HC 395). It also concluded that his removal from the United Kingdom would not breach his right to private life under ECHR Article 8, and refused to vary his leave. In the second, dated 16 October, the Secretary of State decided that Mr Haleemudeen should be removed from the United Kingdom.
3. Permission to appeal to this court was given by Upper Tribunal Judge Hugh Storey. He stated that he did not consider that Deputy Upper Tribunal Judge Bruce was right to find that Tribunal Judge Brown had given insufficient reasons for allowing the appeal. He considered that "in the absence of any proper sufficient reasoned basis for interference, the DUT Judge should not have found a material error of law and should not have set aside [the FTT's] decision".
4. There are therefore two issues before this court. The first is whether the decision of the FTT contained material errors of law which justified the UT setting it aside. The second arises if the UT was entitled to set aside the FTT's decision. It is whether the UT's approach to the proportionality exercise was flawed. If the UT's approach to Article 8 and proportionality was itself legally flawed, a third issue arises. It is whether, despite the error, in view of the circumstances of this case, either this court should itself assess the proportionality of the Secretary of State's decision to remove Mr Haleemudeen from the United Kingdom or that it should dismiss the appeal because, if the matter is remitted, it is inevitable that the tribunal would find that the decision was lawful and not a disproportionate interference with Mr Haleemudeen's rights under Article 8.
5. The provisions of the Immigration Rules in HC 395 as amended reflecting the Secretary of State's current policy on the relationship between a person's right to family and private life under Article 8 and the needs of immigration control are complicated. The extent to which Article 8 operates apart from and outside the Immigration Rules is producing a burgeoning body of jurisprudence. This case concerns a decision about a person who, it is common ground, has sought to comply with the requirements of United Kingdom immigration law and policy for the twelve and a half years he has been in this country. The clear and focused written and oral submissions, on behalf of Mr Haleemudeen by Mr Paul Richardson, and, on behalf of the Secretary of State by Mr Jonathan Hall QC, have been of significant assistance to me in navigating my way through the rules and the general law on Article 8.

II. The factual background

6. Mr Haleemudeen, now aged 41, is a citizen of Sri Lanka. Broadly speaking, he has been in this country lawfully since 22 September 2001, first on a student visa, between 22 October 2007 and 28 July 2009 as a Tier 1 Highly Skilled Migrant, and, since 29 July 2009 as a Tier 1 General Migrant. During the period when he was lawfully in this country as a student, he made several trips back to Sri Lanka, including one in April 2005, during which he got married. His first child was born in Sri Lanka on 14 January 2006. There was a gap of 23 days in Mr Haleemudeen's lawful residence as a student between 1 and 23 March 2006. His explanation for this was that he fell ill when he was in Sri Lanka in October 2005. On 10 February 2006, after his health improved, he returned to the United Kingdom but his condition then deteriorated. Severe and constant headaches required him to avoid sunlight and confined him to his to home for the best part of February and March 2006. The result was that he did not make an in-time application. His out of time application on 23 March 2006 was successful.
7. On 26 March 2007, very shortly before Mr Haleemudeen's final student visa was due to expire on 31 March, he applied for leave as a Highly Skilled Migrant ("HSM"). The Secretary of State refused this application on 19 April 2007. Although, as a result Mr Haleemudeen's presence in the United Kingdom was without leave after 31 March, it remained lawful because he had an in-country right of appeal against the decision. Section 3C(1)(b) of the Immigration Act 1971 provided that a person's leave was extended during the period in which he could appeal against an immigration decision. On 28 April 2007, before the expiry of that period, Mr Haleemudeen returned to Sri Lanka in order to re-apply for a HSM visa from Colombo. His application was successful and, on 22 October 2007, he returned to the United Kingdom with a HSM visa valid to 12 July 2009. He was accompanied by his wife and 21 month old daughter. A second child was born to the family in the United Kingdom on 10 May 2008. Mr Haleemudeen was subsequently granted leave under Tier 1 (General Migrants) from 28 July 2009 to 28 July 2012.
8. Chronologically, the next significant event is that, on 20 September 2010, at Barkingside Magistrates' Court, Mr Haleemudeen pleaded guilty to driving without insurance and without a licence and was fined £245. He stated that the offences were committed because his International Drivers Licence had lost its validity in the United Kingdom after one year and he had only a provisional driving licence. The FTT did not wholly accept Mr Haleemudeen's claimed innocence in relation to the offences because (see [37]) by the time the offences were committed he had lived and worked in the United Kingdom for a considerable time. It, however, stated that the offences were not at the highest end of the scale of offending. In its June 2013 decision, the UT (at [20]) accepted that Mr Haleemudeen committed these strict liability offences with no intention of doing so. The significance of this conviction is that one of the requirements for indefinite leave on the ground of continuous lawful residence is that the applicant does not have any unspent convictions. Mr Haleemudeen's conviction was not spent either on the date of his application for indefinite leave or on the date of the Secretary of State's decision. It will not become "spent" until 19 September 2015.
9. In 2011 the family travelled to Sri Lanka for a holiday for a period of twenty days. They stayed in the family house, a house which is in Mr Haleemudeen's wife's name, and in which her parents live when he and his family are in this country.
10. Mr Haleemudeen is the Assistant Manager of a Tesco Express store in Whitechapel. His wife is a part-time student and hopes to become a nursery school teacher. The couple have made many good friends in this country and Mr Haleemudeen undertakes charity work for the Sri Lankan Muslim community of east London. One of the children has been here since she was 21 months old and the other was born in this country. They are settled in school and have friends. The eldest daughter, who is being treated for asthma, is doing well at school.
11. On 28 February 2012 Mr Haleemudeen applied for indefinite leave to remain in the United Kingdom. The basis of his application under the Immigration Rules was continuous lawful residence in the United Kingdom for ten years. In a letter dated 31 March 2012 his solicitors, Kothala and Co, made further representations about the 23 day gap in his legal residence in the United Kingdom from 1 to 23 March 2006 (see [7] above) and the period he spent outside the United Kingdom between 28 April and 22 October 2007 (see [8] above). In relation to the latter, it was stated that in the light of section 3C of the Immigration Act 1971 and the Secretary of State's November 2011 Long Residence Guidance, the time spent outside the United Kingdom in 2007 was not to be considered as breaking his continuous residence.
12. The leave of Mr Haleemudeen's wife and children expired on 28 July 2012, before the Secretary of State had made her decision on his application for indefinite leave. At the FTT hearing, he acknowledged that after 28 July his wife and children were unlawfully in the United Kingdom, but said he wanted to await the outcome of his application before regularising their position.

III. The material provisions of the Immigration Rules

(i) Continuous lawful residence:

13. At the time Mr Haleemudeen made his application and at the time the Secretary of State made her decision refusing it, paragraph 276B of the Immigration Rules provided that the requirements for an applicant for indefinite leave to remain in the United Kingdom on the ground of continuous lawful residence were as follows. First, the applicant must have had at least ten years continuous lawful residence in the United Kingdom: paragraph 276B(i). Secondly, that having regard to the public interest, there are no reasons why it would be unreasonable for the applicant to be given indefinite leave to remain on the ground of long residence: paragraph 276B(ii). Sub-paragraph (ii) also provided that account should be taken of the applicant's age, strength of and connections in the United Kingdom, personal history, domestic circumstances, compassionate circumstances, and any representations received. The requirement in sub-paragraph (iii) is of particular importance in this case. It is that:

"the applicant does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974."

The requirement in sub-paragraph (iv) requires, for those between the age of 18 and 65, sufficient knowledge of the English language and about life in the United Kingdom. That in sub-paragraph (vi) requires that the applicant must not be in the United Kingdom in breach of immigration laws, save that a period of overstaying of 28 days or less will be disregarded.

14. Paragraphs 276C and 276D of the Rules respectively provide that indefinite leave to remain "may be granted" provided that the Secretary of State is satisfied that each of the requirements of paragraph 276B is met and "is to be refused" if the Secretary of State is not satisfied that each of those requirements is met.
15. The material parts of the definition of "continuous residence" in paragraph 276A provide:

"For the purposes of paragraphs 276B – 276D and 276ADE and 399A –

(a) 'Continuous residence' means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of six months or less at any one time, provided that the applicant has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:

(i) has been removed under Schedule 2 to the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or

(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or

(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or

(iv) …

(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question."

16. With effect from 13 December 2012, a week before the hearing before the FTT, paragraph 276B(a)(iii) was amended to remove any reference to unspent convictions. The requirement is now that "the applicant does not fall for refusal under the general grounds for refusal", a less prescriptive rule, which, as the FTT judge observed (at [25]), is a more general "public interest" rule. Mr Richardson accepted that, under the amended paragraph 276B(a)(iii), the fact of the conviction could be taken into account by the Secretary of State, but emphasised that it no longer in itself disqualified an applicant from indefinite leave to remain. That submission was to be an important building-block in his argument that the UT's approach to the proportionality balancing exercise was flawed by errors of law.

(ii) Leave to remain on the ground of private life:

17. The requirements to be met by an applicant for leave to remain on the ground of private life are in paragraph 276ADE and Appendix FM of the Immigration Rules, which came into effect on 9 July 2012. There is a useful summary of the background to the rules and the aims of the Home Office in introducing them in the judgment of Sales J in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) at [8] – [10], in which a challenge to the lawfulness of the new rules was rejected. The summary in Nagre's case stated that the Rules were amended to address more explicitly the factors which, according to domestic and Strasbourg case-law, weigh in favour of or against a claim by a foreign national based on ECHR Article 8 to remain in the United Kingdom. They were thus introduced to align more closely the Immigration Rules and the approach under Article 8, and to unify consideration under the Rules of Article 8 and section 55 of the Borders, Citizenship and Immigration Act 2009 which deals with the welfare of children. The Secretary of State also issued instructions regarding the approach to be applied by officials in deciding to grant leave to remain outside the Rules. Those instructions were that, if the requirements of the rules are not met, refusal will normally be appropriate but that leave can be granted where exceptional circumstances, in the sense of "unjustifiably harsh consequences" for the individual, would result. Sales J stated (at [36]) that this residual discretion "fully accommodate[ed] the requirements of Article 8".
18. The material parts of paragraph 276ADE provide:

"(1) The requirements to be met by an applicant for leave to remain on the ground of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 1.5 in Appendix FM; and

(ii) does not fall for refusal under any of the grounds in section S-LTR 1.6 to 2.3 in Appendix FM; and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK …"

19. The material provisions of Appendix FM^[1] are R-LTRP, containing the requirements for limited leave to remain as a partner, and R-LTRPT, the requirements for limited leave to remain as a parent. E-LTRP.1.2 provides that the applicant's partner must be (a) a British citizen in the UK; (b) present and settled in the UK; or (c) in the UK with refugee leave or as a person with humanitarian protection. E-LTRPT.2.2 contains the eligibility requirements for limited leave to remain as a parent. The child must be under 18, living in the UK, and a British citizen or settled in the UK, or to have lived in the UK continuously for at least the seven years immediately preceding the date of the application.

IV. The Secretary of State's decision letter

20. The material part of the Secretary of State's decision letter stated:

"Under paragraph 276B(iii) one of the requirements to be met by an applicant for indefinite leave to remain on the ground of long residence…is that the applicant does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974.

On 20 September 2010 at the Barkingside Magistrates Court you were convicted of the offence of driving without insurance and driving otherwise than in accordance with the licence, for which you received a fine of £245. This conviction will not become spent under the terms of the Rehabilitation of Offenders 1974 until 19 September 2015.

For the reason outlined above, your application has been refused under paragraph 276D with reference to paragraph 276D(iii) of HC395 (as amended).

Consideration has been given as to whether your removal from the United Kingdom would breach your rights in respect of your family/private life under Article 8 of the ECHR. On 9 July 2012 the Immigration Rules were amended to unify consideration under the Immigration Rules, Article 8 of the European Convention on Human Rights, and section 55 of the Borders, Citizenship and Immigration Act 2009, duty regarding the welfare of children. These are set out in Appendix FM and paragraph 276ADE of the Immigration Rules.

…It is noted that you are living as a family unit in the United Kingdom with your wife and two children aged six and four, who are all Sri Lankan nationals. You are not the partner of a British citizen or settled person and neither of your children have been continuously resident in the UK for seven years.

Consideration has [been] given as to whether your removal from the United Kingdom would breach your rights in respect of your family/private life under Article 8 of the ECHR.

[After referring to the July 2012 amendment of the Immigration Rules set out Appendix FM and paragraph 276ADE, the letter continued.]

The Immigration Rules set out the requirements for those seeking leave to enter or remain on the basis of their right to respect for private or family life by defining the criteria that a person is expected to fulfil in order to qualify [for] this right to remain in the United Kingdom.

Your application to remain in the United Kingdom has been determined in accordance with the Immigration Rules.

It is noted that you are living as a family unit in the United Kingdom with your wife and two children, aged 6 and 4, whom are all Sri Lankan nationals. You are not the partner of a British citizen or settled person, and neither of your children have been continuously resident in the UK for seven years.

For the above reasons you do not meet the requirements of Appendix FM of the Immigration Rules as it is not accepted that you meet the requirements of R-LTRP.1.1(d)(ii) which relates to E-LTRP.1.2 – 1.12 and 2.1.

[The letter also states that the applicant does not meet the requirements of R-LTRP.1.1(d)(iii), R-LTRPT.1.1(d)(ii) and (iii).]

Your application on the basis of your family life is therefore refused under paragraph D-LTRP.1.3 with reference to R-LTRP.1.1 and D-LTRPT.1.3 with reference to R-LTRPT.1.1 of the Immigration Rules.

Whilst it is considered that your elder child may have entered the school system in the UK it is considered reasonable to expect you, your wife and children to return to Sri Lanka as a family unit, and that with their parents' assistance and support your children will integrate into life in Sri Lanka. It is not considered that your particular circumstances would justify a grant of leave outside of the Immigration Rules.

Your application has also been considered in line with paragraph 276ADE of the Immigration Rules on the basis of your private life.

Paragraph 276ADE of the Immigration Rules sets out the criteria that the government would expect a person to fulfil in order to establish a right to remain in the United Kingdom on the basis of their private life.

[The letter then set out the requirements of paragraph 276ADE which I have set out at [17] above.]

You are aged 40 years and entered the United Kingdom on 22 September 2001. When considering the requirements outlined in paragraph 276ADE, it is noted that you have not lived continuously in the UK for at least 20 years. For this reason, it is not accepted that you will have severed all ties including social, cultural and family with Sri Lanka.

Your application on the basis of your private life is therefore refused under paragraph 276CE with reference to paragraph 276ADE of the Immigration Rules."

V. The FTT's decision

21. The FTT dismissed the appeal under the Immigration Rules. Tribunal Judge Brown held that the material version of the Rule was the one in force at the date of the decision by the Secretary of State which provided that the unspent conviction disqualified Mr Haleemudeen. Apart from the issue of the unspent conviction, the FTT judge stated that Mr Haleemudeen was unable to show he had satisfied the ten years continuous lawful residence requirement (see [32]). He added ([33]) that the appeal could not succeed under Rule 245CD because "at the date of the decision, he was a number of days short of the required five year period of residence in the UK".
22. As to the Article 8 appeal, before this court Mr Richardson accepted that the Deputy UT Judge's summary of the reasons given by the FTT for allowing the appeal was an accurate summary. Those reasons (see UT decision of 27 March 2013 at [6]) are:

"(i) [Mr Haleemudeen] had sought to remain lawfully in the UK at all times;

(ii) His criminal offences were not at the higher end of the scale of offending;

(iii) He had lived and worked in the UK for a considerable time;

(iv) He came here with the 'clear intention' of permanently migrating with his family to the UK;

(v) The Immigration Rules 'work harshly' against him."

23. These five summary reasons are a distillation of [37] – [41] of the FTT's decision. The FTT judge first balanced the factors favouring the appeal with those that did not. The latter included (at [37] – [38]) the FTT judge's rejection of Mr Haleemudeen's claimed innocence about his knowledge that he was committing the driving offences (as to which, see [8] above), and the submission on his behalf that the children would find it difficult to integrate into life in Sri Lanka.
24. The FTT judge then turned to what he saw as the strength of Mr Haleemudeen's case on proportionality. This (see [39]) was that "the last occasion", Mr Haleemudeen came to the United Kingdom, i.e. October 2007, when he came as a Tier 1 Highly Skilled Migrant, "he returned with the clear intention of permanently migrating with his family on the basis of his education and skills". The FTT judge continued:

". … It is correct that [Mr Haleemudeen's] absence from the UK in 2007 has worked against him when considering the application on long residence grounds. It appears also that he cannot succeed under paragraph 245CD of the Rules because he is short of the necessary five year period in the UK. However, it appears to me that the Immigration Rules work harshly against [Mr Haleemudeen] and his family in this case. Such apparent harshness is relevant to the issue of proportionality.

40. Had [Mr Haleemudeen] been a serial offender with many convictions of a serious nature, I have no doubt that I would be finding against [him]. His offences are very much at the lower end of the spectrum and when considering the proportionality of removal do not feature heavily in my consideration of the appeal.

41. In all the circumstances of this case, I have come to the conclusion that the removal of [Mr Haleemudeen] back to Sri Lanka would be disproportionate in the context of Article 8 of the ECHR. …"

25. Mr Haleemudeen did not appeal against the dismissal of his appeal under the Rules. This was understandable in view of his success on the Article 8 ground. Additionally, although for the reasons I give at [53], the FTT judge was wrong in finding that the effect of Mr Haleemudeen's absence was that he did not satisfy the ten years continuous lawful residence requirement and whatever the merits of an appeal against that finding, his unspent conviction was an insuperable bar to success under paragraph 276B. The fact that the disqualification had been removed by the time of the FTT hearing could not assist him because (see Odelola v Secretary of State for the Home Department [2009] UKHL 25) the material date was the date of the decision.
26. The Secretary of State appealed to the UT against the FTT's decision on Article 8. It was submitted on her behalf that the decision contained four errors of law. The UT (March decision at [5]) summarised them thus:

"(i) Failure to give adequate reasons for the finding that the removal of the family would be disproportionate;

(ii) Failure to apply the appropriate test when considering proportionality as set out in VW (Uganda) v SSHD [2009] EWCA Civ 5;

(iii) Apparently considering that [Mr Haleemudeen] had a legitimate expectation that he would be allowed to settle in the UK;

(iv) Applying a 'near-miss' principle contrary to the law: Miah and others [2012] EWCA Civ 261."

VI. The UT's March "error of law" decision

27. The UT stated (at [7]) that the FTT's reasons given for allowing the appeal under Article 8:

"… are not… sufficient reasons to find that [Mr Haleemudeen's] removal was disproportionate, even if considered cumulatively. The determination further refers to the statement of changes in the immigration rules which reflects the [Secretary of State's] view on the Article 8 balancing exercise, but fails to recognise the weight to be attached to that view, as expressed in the rules: MF (Article 8 New Rules) (Nigeria) [2012] UKUT 00393 (IAC). I am satisfied that this decision must be set aside, because the reasons given for allowing the appeal are inadequate."

VII. The UT's June Article 8 decision

28. When Deputy UT Judge Bruce re-determined the Article 8 appeal, it was again not in dispute that the decision to remove Mr Haleemudeen and his family was an interference with his family and private life. On the key question of whether it was a proportional or a disproportionate interference, the Deputy UT judge referred (at [20]) to the following factors in his favour. He had never breached any immigration law or the requirements of the Rules. Secondly, he had broken no law of the United Kingdom apart from the strict liability motoring offences, which he had no intention to commit. Thirdly, he had contributed to the community by paying taxes and student fees in the years that he had been in the country. Fourthly, he and his family sought to integrate into UK society and the community in which they lived, and had done so, and had made many good friends in this country.
29. At [21], the Deputy UT Judge observed that Mr Haleemudeen's quite lengthy residence in this country did not meet the requirements of the Immigration Rules on long residence. She stated that, even setting aside the driving offences, "the six month gap, during which time he was out of the country and had no right to be here" was "a significant failure to meet the requirements" of the Rule. She then referred to the fact that the Secretary of State had set out her view in the amended provisions in the Rules "on where the balance is to be struck when assessing Article 8". She stated that Mr Haleemudeen "falls even farther short of these provisions".
30. The Deputy UT Judge stated that she sympathised with the position in which Mr Haleemudeen found himself, but said that there were no particular factors about his circumstances which would be sufficient to make the Secretary of State's decision disproportionate. The only factor identified on his behalf was that he has lived in this country for a long time and must have hoped to be able to settle here. The Deputy UT Judge attached some weight to those facts, but concluded that they were, in themselves, not sufficient. She considered that, although Mr Haleemudeen's wife was an asset to her community, there were no factors relating to her life which would mean that her removal would be disproportionate. She stated that the crux of the case therefore lay with the children.
31. It was accepted (at [23]) that all the children have ever known is their life with their parents in the United Kingdom, that they were settled in school and had friends, and that the eldest child is being treated for asthma. The Deputy UT Judge concluded that, although neither of the children was fluent in Tamil, it was the language their parents spoke, and in which theY spoke to the children in the home. Additionally, as young children, they could be expected to pick up the language quickly. There was no medical evidence about the suggestion that the elder child's asthma may get worse in Sri Lanka, and in any event the country background material stated that asthma medication would be readily available. The UT regarded the submission that the children would be likely to receive a better education in the UK as one "that may carry some weight" (see [24]), but concluded that it was not contrary to the best interests of the children to be removed to Sri Lanka. After cumulatively assessing these difficulties, the UT concluded that the removal of Mr Haleemudeen from the UK is not disproportionate.

VIII. Analysis

(1) Was the UT entitled to set aside the FTT's decision?

(i) Adequacy of the FTT's reasons:

32. Paragraph [7] of the UT's March 2010 decision (set out at [25] above) contains two statements about the reasons given by the FTT. The first is that the reasons were not "sufficient" to find that Mr Haleemudeen's removal was disproportionate. The second is that the reasons given for allowing the Article 8 appeal "are inadequate". This language does not in my view adequately separate two very different grounds of challenge.
33. The first statement appears to indicate that the concern of the UT was with the substance of the FTT's decision, and with what it considered was a substantive error of law or one or more of the public law flaws which offend the Wednesbury principles The second statement appears to indicate that the concern of the UT was with the requirement of procedural fairness that a tribunal should give adequate reasons for its decisions. When giving permission (see [3] above) UT Judge Storey appeared to consider the UT was concerned (at least in part) with the procedural requirement. It is, in my view, important to keep the two grounds separate and to recognise clearly the difference between the largely procedural nature of an "inadequate reasons" challenge and a substantive challenge that the reasons given display an error of law or other public law flaw.
34. The way the UT used the term "reasons" may reflect the approach of the Secretary of State in her grounds for appealing to the UT which I summarised at [24] above. The first of those grounds was that the FTT failed to give adequate reasons. Whether or not that was the explanation for the UT's focus on "reasons", for the reasons I give in the next paragraph, I accept Mr Richardson's submission that the reasons given by the FTT sufficed. They were sufficiently detailed to show the principles upon which it acted and the reasons for its decision. The FTT was thus not in breach of this aspect of requirements of procedural fairness.
35. The FTT referred to Mr Haleemudeen's unbroken history of broken residence, its length, and the minor nature of his driving offences. It explained why it regarded the basis on which he returned to the United Kingdom in 2007 was relevant to its assessment of proportionality. The decision, in my view, was clearly sufficient to meet the standards identified in the guidance on the approach a court should take to the reasons given by a specialist tribunal such as the FTT in R (Iran) and others v. Secretary of State for the Home Department [2005] EWCA Civ 982, reported at [2005] Imm AR [13] – [14] and [90] and R (Ashworth Hospital Authority) v Mental Health Review Tribunal [2001] EWHC 901 (Admin) at [77]. What is required is that the reasons must give sufficient detail to show the parties and the appellate tribunal or reviewing court the principles upon which the lower tribunal has acted, and the reasons that led it to its decision, so that they are able to understand why it reached its decision. The reasons need not be elaborate, and need not deal with every argument presented. The much cited statement of the duty in South Bucks DC v Porter (No 2) [2004] UKHL 33 reported at [2004] 1 WLR 1933 at [36], albeit in the context of reasons for planning decisions rather than by tribunals, is to the same effect.

(ii) Error of law or Wednesbury public law flaw:

36. The next question is whether the reasons given by the FTT show that the UT was correct to conclude that its decision contained errors of law or one of the Wednesbury public law flaws which justified the UT in setting aside the decision. Mr Richardson submitted that this was a case within the category referred to by Carnwath LJ in Mukarkar v Secretary of State for the Home Department [2006] EWCA Civ 1045, because the nature of an assessment of the proportionality of an interference with Article 8 rights is such that different tribunals, without illegality or irrationality, may reach different conclusions on the same case and the mere fact that one tribunal has reached what may seem to another as an unduly generous view of the facts does not mean that it has made an error of law. He submitted that the findings of the FTT on Article 8 were reasonably open to it and consequently there was no error of law.
37. My starting point in considering this matter are the statements, albeit in the context of the relationship between the Court of Appeal and an appellate tribunal, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined and it should not be assumed too readily that the tribunal misdirected itself because not every step in its reasoning is set out in it: see MA (Somalia) v. Secretary of State for the Home Department [2010] UKSC 49 at [43], referring to AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 reported at [2008] 1 AC 678 at [30], and see also Jones (Cadlwell) v FTT and CICA [2013] UKSC 19 reported at [2013] 2 AC 48 at [25].
38. Mr Richardson submitted that the Deputy UT Judge was wrong to hold that the FTT erred in attaching weight to the expectation that Mr Haleemudeen had which arose from his being permitted to return to the UK in October 2007 as a Highly Skilled Migrant. Had the UT so held, it would have erred because (see [58] below) of the position of persons admitted under the Highly Skilled Migrant scheme. But it is not at all clear that the UT did so hold.
39. One of the grounds of appeal to the UT was that the FTT erred in considering Mr Haleemudeen to have a legitimate expectation of settlement. But neither the FTT nor the UT used that term. The UT stated that one of the FTT's insufficient reasons for finding that removal was disproportionate was (see FTT at [39]) that Mr Haleemudeen "came here with the 'clear intention' of permanently migrating with his family to the UK". To the extent that the FTT considered that Mr Haleemudeen's intention was in itself a factor in his favour in the balancing exercise, that may have been an error, but it is not clear that was what the FTT meant or that the UT so regarded it. The UT's "error of law" decision simply stated that his intention did not suffice, even if considered with the other factors. In simply stating this, it did not fall into error, although, for the reasons I give at [57], this led it to fall into error when remaking the decision in its June decision.
40. I, however, consider that the FTT Judge did err in his approach to Article 8. This is because he did not consider Mr. Haleemudeen's case for remaining in the United Kingdom on the basis of his private and family life against the Secretary of State's policy as contained in Appendix FM and Rule 276ADE of the Immigration Rules. These new provisions in the Immigration Rules are a central part of the legislative and policy context in which the interests of immigration control are balanced against the interests and rights of people who have come to this country and wish to settle in it. Overall the Secretary of State's policy as to when an interference with an Article 8 right will be regarded as disproportionate is more particularised in the new Rules than it had previously been. The new Rules require stronger bonds with the United Kingdom before leave will be given under them. The features of the policy contained in the Rules include the requirements of twenty year residence, that the applicant's partner be a British citizen in the United Kingdom, settled here, or here with leave as a refugee or humanitarian protection, and that where the basis of the application rests on the applicant's children that they have been residents for seven years.
41. The FTT's decision on Mr Haleemudeen's Article 8 appeal is contained in [34]-[41], which I summarised and set out in part at [21] – [23] above. Those paragraphs do not refer, either expressly or implicitly, to paragraph 276ADE of the rules or to Appendix FM. None of the new more particularised features of the policy are identified or even referred to in general terms. The only reference to the provisions is in the FTT's summary (at [30]) of Mr. Richardson's submission that the reference to the new Rules in the refusal letter was of little relevance because at the time of Mr. Haleemudeen's application those Rules had not been promulgated and thus did not apply to his case. That submission could not succeed in view of the decision of the House of Lords in Odelola's case, to which I refer at [25] above.
42. The authorities make it clear that the focus of any assessment of whether an interference with private life pursuant to the requirements of immigration control is proportionate should be whether the Secretary of State's decision is in accordance with those provisions. See in particular the decisions of the Immigration and Asylum Chamber of the Upper Tribunal, presided over by its then President, Blake J, in Secretary of State for the Home Department v Izuazu [2013] UKUT 45 at [40] and [42]-[43], of Sales J in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) at [26] and [29]-[31], and of this court in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, reported at [2014] 1 WLR 544 at [44]-[46].
43. In Nagre's case Sales J stated (at [26] and [29]) that it is necessary to find "particular factors in individual cases … of especially compelling force in favour of a grant of leave to remain" even though those factors are not fully reflected in and dealt with in the new Rules and "to consider whether there are compelling circumstances not sufficiently recognised under the new rules to require the grant of such leave". In MF (Nigeria), albeit in the context of deportation and Article 8, this court stated (at [44]]) that the Rules are "a complete code", and that the provision in paragraph 398(c) that where the exceptions to mandatory deportation in paragraphs 399 and 399A do not apply, "it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors" involves the application of a proportionality test as required by the Strasbourg jurisprudence".
44. Mr. Richardson's preferred position was that the Rules are only the starting point for an assessment of proportionality. It was with evident reluctance that he accepted that, at least in this court, in the light of the authorities, it is necessary to find "compelling circumstances" for going outside the Rules. But he argued that, even on that basis, it was wrong to criticise the decision of the FTT in this case. He submitted that the FTT was aware of the changes to the Rules in relation to the consideration of Article 8, had referred to the new Rules at [30] when summarising his submissions, and at [39] referred to their "apparent harshness". The FTT judge did this before considering the question of the proportionality of the interference with Mr Haleemudeen's Article 8 rights outside the Rules and under the general law.
45. He submitted that the FTT then considered proportionality in accordance with the approach laid down by the House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11, reported at [2007] 2 AC 167 at [16] – [17]. It weighed the factors in favour of and against removal according "appropriate weight to the judgment of [the] person with responsibility for a given subject-matter and access to special sources of knowledge and advice".
46. Mr Richardson also submitted that the penultimate sentence of [39] of the FTT's decision (set out at [23] above) showed that the reference to "apparent harshness" was a reference to the operation of the Rules and a reflection of the level of interference with Mr Haleemudeen's private life because of the particular factors in his case rather than to the Rules themselves. It was, he contended, a statement that, in the particular circumstances of Mr Haleemudeen and his family, the Rules worked harshly against them. He submitted that it was a statement which satisfied the "compelling" or "exceptional" circumstances requirement for going outside the Rules and was not an application of the impermissible "near miss" approach.
47. I do not accept these submissions. The passages from the judgments in the cases of Nagre and MF (Nigeria) appear to give the Rules greater weight than as merely a starting point for the consideration of the proportionality of an interference with Article 8 rights. But, even if Mr Richardson is correct to characterise the relevance of the Rules as only a starting point, the single reference in [39] of the FTT's decision to "apparent harshness" does not in my judgment suffice. I do not consider that it is necessary to use the terms "exceptional" or "compelling" to describe the circumstances, and it will suffice if that can be said to be the substance of the tribunal's decision. In this case, as I have stated, the FTT gave no explanation of why this is so, or identified particular features of Mr Haleemudeen's case which justified considering proportionality outside the Rules.
48. Mr Richardson submitted that the FTT was not required to give the Secretary of State's judgment any particular weight and in some cases it would be appropriate to give it little or no weight. It seems to me difficult to reconcile this with the approach required by this court in MF (Nigeria) and to read too much into the use of the word "appropriate" in Huang's case. But, apart from that difficulty, if little or no weight is to be given to the judgment of the person with responsibility for a given subject-matter and access to special sources of knowledge and advice, the tribunal or court doing so should explain why, as, for instance, the House of Lords did in Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19 reported at [2007] 1 WLR 1420.
49. Secondly, in the context of this case, the reference to "apparent harshness" is, in my view, in substance an application of an impermissible "near miss" test. Mr. Richardson's submission that it is not, and that it is a permissible, and indeed required, reference to the effect of the operation of the Rules in the particular circumstances of the family may have force in some contexts but does not in this case. The only operational factors the FTT judge appears to have in mind are Mr Haleemudeen's unspent conviction and its minor nature, and the effect of his absence from the United Kingdom in 2007. But those two factors were the very factors that meant he did not qualify for indefinite leave on long residence grounds. Moreover, as Stanley Burnton LJ stated in Miah v Secretary of State for the Home Department [2012] EWCA Civ 261 at [23] by their nature many rules produce bright line boundaries and, whether a rule is "harsh" will depend on its effect. The distinction drawn by Mr. Richardson between the harshness of a rule and the harshness of the operation of the rule can thus be elusive. In view of the error I have identified in the FTT's failure to consider Mr. Haleemudeen's case for remaining in the United Kingdom against the policy reflected in Appendix FM and Rule 276ADE, it is, however, not necessary to decide this point.
50. Finally, I return to the fact that the FTT regarded the strength of Mr Haleemudeen's case as lying in the fact that he returned to the United Kingdom "with a clear intention of permanently migrating". This is also in my view problematic because (see [22] and [38] – [39]) the FTT did not link his intention to any expectation generated by the grant to him of an HSM visa. I accept Mr Hall's submission that in regarding his intention as the strength of his case, the FTT appears to have focussed on his intention and his choice rather than on what is required to protect his fundamental rights. In doing so the FTT appears to have set the threshold too low.
51. To conclude, the UT was entitled to set aside the FTT's decision as flawed on Wednesbury grounds because the FTT failed to take account of a relevant consideration, the Secretary of State's new policy contained in Rule 276ADE and Appendix FM of the Immigration Rules.

(2) Was the UT's approach to proportionality flawed?

52. In her June decision re-making the decision, the Deputy UT Judge put paragraph 276ADE and Appendix FM of the Rules at the forefront of her reasoning. This is clear from the contrast (in [21]) between what she described as Mr Haleemudeen's "significant failure" to meet the requirements of paragraph 276B of the Rules and his "falling even further short" of the provisions in which the Secretary of State set out her view on where the balance is to be struck when assessing Article 8, a clear reference to paragraph 276ADE and Appendix FM. Moreover, one of her reasons for her earlier decision setting aside the FTT's decision was the FTT's failure to recognise the weight to be attached to the Secretary of State's view as expressed in the new Rules. In her March decision she referred to the Upper Tribunal's decision in MF (Nigeria), MF (Article 8 – New Rules) (Nigeria) [2012] UKUT 00393.
53. The Deputy UT Judge also had regard to the provisions of paragraph 276B. I accept Mr Richardson's submission that she fell into error (as the FTT Judge in fact also did) in concluding at [21] that Mr. Haleemudeen's six month absence from this country in 2007 was a breach in his continuous lawful residence. I have referred (see [7] above) to the effect of section 3C of the Immigration Act 1971 and (at [15]) set out paragraph 276A of the Rules. It could not be said that Mr. Haleemudeen left the United Kingdom in circumstances in which he could have no reasonable expectation that he would lawfully be able to return and therefore paragraph 276A(a)(iii) of the Rules did not mean that his departure and return were to be treated to have broken his continuous lawful residence. The Deputy UT Judge thus erred in her calculation of continuous lawful residence for the purposes of the ten year lawful residence rule in paragraph 276B in stating (at [14]) that "even setting the driving offences aside, [the absence] is a significant failure to meet the requirements of that rule" (emphasis added). Her view that the absence itself was "a significant failure" to meet the requirements of Rule 276B was thus a factor she took into account in her Article 8 assessment.
54. Mr Hall submitted that there was in fact no error of calculation by the Deputy UT judge. This he said was because, once a case falls outside the Rules, as Mr Haleemudeen's did, a court assessing the proportionality of an interference with Article 8 rights should not have regard to the provisions in the Rules on the meaning of continuous lawful residence and what periods of absence will not break such residence. He argued that the court should simply consider whether in fact the person has been physically absent from the United Kingdom. The implication is that, in taking any account of paragraph 276B, the Deputy UT judge was generous to Mr Haleemudeen.
55. The position taken by Mr Hall does not fit with his principal argument when dealing with whether the FTT had erred. It is to be recalled that, in that context, he submitted that a tribunal considering Article 8 must give primary consideration to the Secretary of State's policy as it is contained in the new Rules and to the status of the Rules as a code. The submission that the provisions in the Rules on the meaning of continuous lawful residence should not be taken into consideration once it has been concluded that the Rules do not apply appears to have an element of unjustified cherry-picking. This is because the provision on continuous residence in paragraph 276A applies to paragraph 276ADE as well as to paragraph 276B. The effect of Mr Hall's submissions, if accepted, would be that when considering proportionality under the general law and outside the Rules, those parts of paragraphs 276ADE and Appendix FM which reflect the more stringent policy must be considered but the court should not have regard to those provisions which, like those on continuous lawful residence, moderate that stringency.
56. Essentially Mr Hall invited the court to look at the facts, look at the period of physical presence, and periods of physical non-presence. In response to questions about the relevance of the approach in the Rules to periods of non-presence, he conceded that, in some cases, it would be relevant to look at the reason for physical non-presence in determining the strength of a person's bonds with the United Kingdom. He, however, maintained that this would be done as a matter of common sense in determining where a person's home was rather than by having regard to the provisions of the Rules.
57. I reject the submission that provisions such as that on the meaning of "continuous lawful residence" in paragraph 276A should be disregarded once a case falls outside the Rules. This is because, although they are not dispositive once it is clear that the case is not within the Rules, they provide guidance about the policy of the Secretary of State in the same way as the provisions in paragraph 276ADE and Appendix FM do.
58. I have referred (at [38] – [39] above) to what the UT stated about the FTT's finding that Mr Haleemudeen "came here with the 'clear intention' of permanently migrating with his family to the UK" and stated that this led the UT to fall into error when remaking the decision in its June decision. In that decision the UT (at [21]) described Mr Haleemudeen's position as one in which he "must have hoped to be able to settle". That was no doubt true, but it is not an accurate way of describing his position because it does not reflect the impact of the HSM visa he was granted in 2007. As UT Judge Storey stated when giving permission, persons admitted under the Highly Skilled Migrant scheme had a legitimate expectation that after a certain period they could obtain permanent settlement. This is, for example, seen in HSMP Forum Ltd v Secretary of State [2008] EWHC 664 (Admin) at [53] and [57]. Sir George Newman found that the terms of the scheme "properly interpreted in context and read with the guidance and the rules, contain a clear representation, made by the [Secretary of State] that once a migrant had embarked on the scheme he would enjoy the benefits of the scheme according to the terms prevailing at the date he joined". Mr Haleemudeen's later status as a Tier 1 General Migrant is also a status that can lead to settlement.

(3) Consequences

59. What are the consequences of the UT's error in calculating the period of continuous lawful residence? The normal outcome in most cases is to remit the case to the tribunal. In the present case it would be to remit the case for reconsideration of the Article 8 proportionality issue.
60. It is possible for an appellate court that has concluded that a tribunal has erred not to remit in one of two circumstances. The first is where, after reviewing the decision, it considers that it can properly reconsider the question of proportionality itself. In Re B (A Child) (FC) [2013] UKSC 33 Lord Neuberger PSC stated (at [88]) that, in such circumstances, it should itself reconsider the question of proportionality because "remitting the issue results in expense and delay, and is often pointless". In my judgment, in this case this court cannot itself properly reconsider the question of proportionality. This is because at the hearings below the tribunals had the benefit of a witness statement of Mr Haleemudeen who also gave oral evidence in both the FTT and the UT. This court does not have a copy of the witness statement and has not heard his evidence.
61. The second situation in which an appellate court need not remit is where it is satisfied that, although the tribunal below has erred, the error is irrelevant. Where the court is satisfied that the error had no effect and the decision would inevitably be the same, it can dismiss the appeal.
62. Mr. Hall submitted that, if this court finds that the UT erred in its calculation of the period of continuous lawful residence, it should dismiss the appeal because the error did not matter. He argued that the UT, in referring to paragraph 276B and giving no detailed consideration to paragraph 276ADE and Appendix FM, was generous to Mr Haleemudeen. Rule 276B does not reflect the Secretary of State's policy on family life and the significant shortfall from the twenty year residence requirement and the requirements in paragraphs R-LTRP and E-LTRPT of Appendix FM (as to which see [19] above) meant that it was inevitable that a proper assessment of the proportionality of the Secretary of State's decision to remove Mr. Haleemudeen by reference to these more stringent requirements would produce the conclusion that it was not a disproportionate interference with his rights. He submitted that the appeal should be dismissed.
63. Mr. Richardson submitted that in a case in which the length of lawful residence has been relied on by the tribunal as part of its Article 8 assessment, a miscalculation of that length is an error on a matter of importance. He also relied on the failure to recognise the effect the grant to Mr Haleemudeen of a HSM visa had on his position and the fact that his unspent conviction would no longer disqualify him under the Rules. He submitted that the absence of that bar and that these factors show that it is not inevitable that the consideration of paragraph 276A and Appendix FM mean that there can be only one answer in this case, which is that the decision to remove Mr Haleemudeen was proportionate and thus lawful.
64. I have not found it easy to assess whether it is inevitable that on reconsideration the Secretary of State's decision will be found to be a proportionate interference with Mr Haleenmudeen's rights. The provisions of paragraph 276A and Appendix FM undoubtedly constitute a formidable hurdle for him to overcome. The significant shortfall from the twenty year residence requirement and the fact that Mr Haleemudeen's wife and children do not meet the requirements of paragraphs R-LTRP and E-LTRPT and the family's remaining links in Sri Lanka, including owning a property there, provide significant support for Mr Hall's submission.
65. The miscalculation of his period of continuous lawful residence produced a shortfall that appears of little consequence when compared with the overall shortfall from the twenty year requirement. The change in paragraph 276B(a)(iii) may be a relevant factor, but the conviction was not a matter held against Mr Haleemudeen by the UT. It regarded the fact that he had no intention to commit the driving offences as a factor in his favour. In those circumstances, the only relevance of the fact that the convictions would no longer disqualify Mr Haleemudeen from qualifying under paragraph 276B appears to be that one of the reasons he was a "near miss" under the rules no longer applies. It is difficult to see how that is anything other than an aspect of the impermissible "near miss" approach.
66. As against the factors relied on by Mr Hall, there are the other matters referred to in the decisions below. These include: Mr Haleemudeen's long period of lawful residence in recent years first as a student, then as a Tier 1 Highly Skilled Migrant and then as a Tier 1 General Migrant, the family's ties with the community in which he and his wife live in East London, the likelihood of the children receiving a better education in the United Kingdom, and his good works in the community. His careful compliance with the requirements of immigration law is also a feature which marks his case out from the majority of immigration cases seen in this court.
67. The assessment of proportionality is not a pure question of law or fact. It is, as was stated in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41 at [12], a difficult and evaluative exercise. In Mukarkar v Secretary of State for the Home Department [2006] EWCA Civ 1045 Carnwath LJ (as he then was) stated that the assessment of proportionality involves factual judgments which are often not easy, and as to which different tribunals, without illegality or irrationality, may reach different conclusions on the same case. In this case the different conclusions reached by the FTT and the UT were both tainted by error. But both tribunals had the benefit of oral evidence by Mr Haleemudeen as would a tribunal re-determining the matter,
68. In all the circumstances of this case, I have concluded that, although the Secretary of State has powerful arguments, it cannot be said that it is inevitable that, if this case is remitted, the tribunal will conclude that the decision to remove Mr Haleemudeen was proportionate. For these reasons, if my Lord and my Lady agree, I would allow the appeal and remit the matter to the tribunal.

Lady Justice Sharp

69. I agree.

Lord Justice Sullivan

70. I also agree.

Note 1    The prefix “R” signifies “requirements”, and the prefix “E” signifies “eligibility”    [Back]