England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Upper Tribunal (Immigration and Asylum Tribunal
Upper Tribunal Immigration and Asylum Tribunal)
IA/09654/2013

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th February 2015

Lord Justice Fulford:

The Facts

1. The appellant, Phyllis Gain, is a 76-year-old national of the United States of America. She worked in her country's Foreign Service between 1965 and 2005. Her daughter and son-in-law – the latter is a minister of religion – moved to Surrey in the United Kingdom in September 2012 along with their three children.
2. The appellant is financially independent and she has health insurance that will cover any period of infirmity. She wishes to live with her family in this country, not least because she is unstable on her feet (she has had at least one very serious fall), she has fractured her arm, she has dislocated her right hip and she has had two hip replacements. Throughout the time her son-in-law (Mr Stuck) has worked as a minister in the USA, the appellant moved whenever he was transferred to a new church, in order to live close to her family. Her daughter and son-in-law hope to live in the United Kingdom indefinitely and the appellant wishes to remain living with them.
3. Mr and Mrs Stuck and their children have been given leave to remain in the UK until August 2015 under a Tier 2 (Minister of Religion) visa. The appellant originally applied to come to this country as the dependent of her daughter and son-in-law (the "entry clearance application") but she failed to meet the criteria because, inter alia, she was not financially dependent on the relevant relative who was present or settled in this country. Furthermore, she did not qualify as a family member of a Tier 2 migrant, because this avenue was limited by the Rules then in force to spouses, partners and children. Accordingly, her application was refused on 20 June 2012 on the basis that she failed to meet the requirements of the Immigration Rules. On 26 June 2012 the appellant appealed against that decision.
4. The Entry Clearance Manager reviewed the matter. He noted that the appellant is a wealthy individual who can afford to visit the UK to see her daughter, and he decided that in those circumstances the interference with her protected human rights under Article 8 of the European Convention on Human Rights ("ECHR") was "limited". He observed that the right to a family or private life is qualified and he determined that the decision was justified and proportionate in the interests of maintaining effective immigration control. The appellant appealed against that decision.
5. In the meanwhile the appellant travelled to the UK with her eldest grandchild, and was given entry clearance as a visitor for the period 18 August 2012 to 7 February 2013.
6. On 31 January 2013 the appellant applied for further leave to remain in the UK as a General Visitor ("the application for leave to remain"). On the 20 March 2013, the appellant received a "Reasons for Refusal Letter", signed by an official on behalf of the Secretary of State.
7. The Secretary of State was not satisfied that as a result of the extension the appellant would not have been in the UK for more than 6 months. The Secretary of State additionally considered whether there were exceptional circumstances requiring the grant of limited leave to enter outside the Immigration Rules and whether refusing the application would breach the appellant's rights under Article 8. He decided against the appellant on both issues and the application was refused. On the 27 March 2013 the appellant lodged an appeal against this decision.

The First Tier Tribunal

8. Both appeals were before the First Tier Tribunal. The appellant advanced her case solely on the basis of her rights under Article 8 ECHR and what was said to be the disproportionate breach of her entitlement to family and private life if she is unable to remain with her family in this country. This was the single substantive issue argued on her behalf.
9. The judge noted that the appellant conceded she could not succeed under the Immigration Rules in respect of either appeal. Having acknowledged that the Immigration Rules, in that sense, did not apply he proceeded to consider whether the Secretary of State's conclusions were a disproportionate breach of the appellant's Article 8 right to a family and private life, in the light of various authorities that are relevant to this issue. He concluded this section of his Decision as follows:

It is plain in reading these cases together that in considering the issue of proportionality, the Secretary of State has to show that on an informed and careful evaluation of the facts of his particular situation that it is reasonable for the appellant to return to the USA on her own and live apart from her family, or that her family can reasonably be expected to return to the USA with her to continue their family and private life there. The standard of proof is the balance of probabilities. [27].

10. Having established the test to be applied, the judge focused in some considerable detail on the facts as they related to the appellant and her circumstances. Thereafter, the judge observed that:

34. In the balancing exercise which proportionality entails, the weight to be attached to immigration control is not fixed. In this case, there are good reasons why very little weight is to be attached to the need to maintain immigration control. First, it is established as a fact that there is no economic burden on the state in allowing Mrs Gain to remain. Her financial evidence shows beyond doubt that she is able to maintain a good standard of living on the pension and rental income which she has from the USA. Her medical expenses are met from medical insurance. And that would continue to be the situation even if she was present in the United Kingdom with leave to remain outside the rules on Article 8 grounds. The evidence points to the presence of Mrs Gain as being of economic benefit to the United Kingdom. As such the conclusion may properly be reached that the answer to stage 4 of the Razgar test (see below) is in the negative: the interference is not "necessary for the economic well-being of the country". In the alternative, this evidence carries significant weight in determining that the decision is not proportionate.

35. Secondly, there is no deterrent effect in maintaining immigration control in her situation. As the presenting officer submitted at the hearing, her circumstances as a citizen of the USA mean that she could continue to visit her family in the United Kingdom for extended periods of time without the need to apply for a visit visa. This was submitted as a reason why removal was proportionate, but it is not likely that Mrs Gain could remain with her family for more than half of each year without ceasing to be considered to be "visiting" so there is likely to be a significant breach of the time spent together. If the respondent is right that Mrs Gain can visit any time for as long as she wants in section no ore than six months long, then the additional time, expense and inconvenience of having to travel to USA every six months is not proportionate.

36. The application is for a finite time, equivalent to the length of time that her daughter and her family remain in the United Kingdom in connection with Mr Stuck's work as a pastor. That is in the first instance until August 2015 and if there is an application to extend that, then if there is no significant change in circumstances Mrs Gain might expect that her leave was also renewed.

11. After further analysis of the circumstance of the appellant and her family, the judge allowed the appeal and concluded:

Balancing all of those reasons, it is certainly not established that returning Mrs Gain to the USA is a proportionate breach of her family and private life with her daughter, son in law and grandchildren in the United Kingdom: it may be that the interference is not justified at all. [39].

The Upper Tribunal

12. The Secretary of State appealed to the Upper Tribunal. In a Decision handed down on 9 January 2014, the Upper Tribunal Judge determined that the First Tier Tribunal had erred in law, namely he had failed to ask the relevant question as to whether the appellant had shown, on a balance of probabilities, that there would be consequences of sufficient gravity flowing from the removal of the appellant such as to engage Article 8. The Upper Tribunal judge suggested:

26. … the Immigration Judge appeared to have placed the onus on the respondent to show that her decision was proportionate whereas in fact the onus lay on the appellant to show that the decision was "prima facie" unlawful before proceeding to that stage.

13. Furthermore, the Upper Tribunal judge considered that the First Tier Tribunal had failed to place Article 8 in its proper context. Based on the decision of Sales J in R (Nagree) v SSHD [2013] EWHC 720, he suggested that when considering an Article 8 issue, the first question is whether it is adequately dealt within the Rules, and it is only if this is not the case that the court will go on to consider whether there are compelling circumstances, insufficiently recognised in the relevant iteration of the Rules, which require the grant of leave to remain [28]. Therefore, in his view, the starting position is that the Immigration Rules represent Parliament's assessment of the correct balancing exercise that falls to be undertaken by a court or tribunal when weighing the competing interests of an individual who wishes to be reunited with his or her family and those of the state when enforcing effective immigration control.
14. He set aside and remade the First Tier Tribunal judge's Decision. Having set out the core facts, his overall conclusions were as follows:

33. The appellant did not fall within any of the new Rules for family reunion or settlement. Even if she got over the hurdle of establishing that there would be consequences of gravity flowing from her removal, which I do not accept, her daughter and son-in-law are due to return to the United States in any event in 2015. This makes it difficult to argue that there would be "consequences of gravity" for they would be short lived.

34. I also agree with the Secretary of State that Article 8 requires a proper factual analysis. This is a difficult case because the appellant is a lady in her 70s with some ill-health, who has relatively few friends or relatives in the USA. She seems to have spent much of her working life abroad and she will undoubtedly find it difficult to re-settle in the United States despite the brief period of absence from that country. Nevertheless, the respondent is entitled to a margin of respect for her decision which appears to have been made in accordance with the Immigration Rules, taking into account the appellant's personal circumstances. This case was by no means out of the ordinary and that it appears after proper consideration of the Article 8 claim that it cannot succeed.

The Submissions and Discussion

The Decision of the Upper Tribunal Decision

15. It is contended by the appellant that the Upper Tribunal judge erred by indicating that he approached the case on the basis that the Immigration Rules ought to have been the starting point for the decision under Article 8 because they represent Parliament's assessment of the correct balancing exercise that is to be performed in cases of this kind. It is suggested that approach was flawed because the appellant cannot qualify under the Rules: there is no provision under which a parent of a Tier 2 migrant worker may be permitted to join her son or daughter.
16. The respondent accepts that because the Immigration Rules do not provide a "complete code", "the proportionality test will be more at large, albeit guided by the Huang tests and UK and Strasbourg case law" (MM (Lebanon) and others v SSHD [2014] EWCA Civ 985 at [135]). As Lord Bingham said in Huang v SSHD [2007] 2 AC 167; [2007] UKHJL 11:

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.

17. The questions to be asked when considering article 8 issues were set out by Lord Bingham in R (Razgar) v SSHD [2004] 2 AC 368; [2004] UKHL 27 at [17]:

In a case where removal is resisted in reliance on article 8, these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?

The first two questions go to whether article 8 is engaged at all. The last two address the issue of proportionality itself.

18. Against that background, the respondent has approached this appeal with a concession that the Upper Tribunal fell into error, for the reasons set out at [53] of Mrs Broadfoot's skeleton argument:

[…] the Secretary of State concedes that on analysis, regrettably the UT did not take the correct approach […] when re-making the decision. The UT did not appear to consider the question of proportionality or the factors set out in Huang […]. Instead, the UT appears to stop in [its] Article 8 analysis at question 2 of Razgar (para. 33). At paragraph 34 the UT then goes on to give the Respondent's decision "a margin of respect" and, because the case was not "out of the ordinary", her article 8 claim could not succeed. It is not clear what the UT has in mind here and the UT's decision pre-dated the clarification provided in MM Lebanon. However, as MM Lebanon makes clear, where the immigration rules are not a complete code, the approach to Article 8 will be more at large and must be done in accordance with Huang and the Strasbourg caselaw. The UT's approach does not reflect the approach required by our domestic jurisprudence nor the Strasbourg jurisprudence […]

19. In fact, there would be nothing wrong if the Upper Tribunal judge had stopped after the second question of Razgar, and had simply concluded that the appellant had not satisfied him that article 8 had been engaged at all. In fairness to the judge, that certainly seems to be implicit in his reference at [33] of his decision to the fact that there would be no consequences of gravity if the applicant were to return to the US alone. His language reflects the language of Lord Bingham when posing the second Razgar question. But it is true that the finding is not as unequivocal as it might be, perhaps because the focus of the Secretary of State's submissions appears to have been on proportionality rather than the prior question whether article 8 was engaged at all. In view of this, and of the concession by the respondent, I would not uphold the decision on this basis.
20. I also accept that the Upper Tribunal judge did go wrong at [34], as the Secretary of State submits, not least in referring to the margin of respect for the Secretary of State's decision. It has been clear ever since Huang that the First Trier Tribunal is not exercising a reviewing function but must determine the issue for itself. Introducing the concept of margin of respect in these circumstances was inappropriate.

The First Tier Tribunal Decision

21. Given that conclusion as regards the decision of the Upper Tribunal judge, the sole live issue on this appeal is whether the First Tier Tribunal judge also fell into error. This is of critical importance because the Article 8 decision will need to be remade if his Decision is unsustainable.
22. Counsel for the appellant, Ms Vidal, accepts that there was an error of law in the sense that the judge failed accurately to describe the relevant test at [27] of the Decision (see [9] above), but she submits it was not a material error because – viewed overall – the judge gave proper consideration to the relevant factors when making the decision under Article 8. In particular, she submits, he had regard to the relevant considerations vis-à-vis the issue of proportionality.
23. Mrs Broadfoot submits, however, that the Decision of the First Tier Tribunal is notably defective. It is unnecessary to rehearse the detail of her submissions in this context because, for my part, I accept that the judge made a material error of law when he purported to identify the relevant test at [27]. The Secretary of State does not have to show that it is reasonable for the applicant to return to the United States on her own. The appellant has to show that it would be unreasonable to expect the family to live there together. If she fails to do that she has not discharged the burden – which rests on her – of showing that article 8 is engaged. If it is not shown to be unreasonable to expect the family to live in the US, or if the separation would be only short term, any interference with family life would not necessarily be of sufficient gravity to engage article 8 at all. The first two questions in Razgar would not be satisfied. This, however, has nothing to do with the proportionality test identified in questions 4 and 5 of Razgar, contrary to the understanding of the First Tier Tribunal judge as reflected in his judgment at [27]. It is only once the material interference with family life is established that the issue of proportionality arises. The First Tier Tribunal judge confused the two stages in the process, set the wrong test, and thereby misapplied the proportionality principle and the burden of proof. That was essentially the analysis of the Upper Tribunal judge and I agree with it.
24. I also agree with the Secretary of State that the First Tier Tribunal judge failed to give sufficient weight to the policy of the respondent that underpins the Immigration Rules when he considered the article 8 arguments. Addressing the position at the time of the decision on the appellant's Entry Clearance application on 20 June 2012, Ms Gain did not come within the provisions relating to individuals who are entitled to enter and remain with migrant relatives who are lawfully in the United Kingdom. Eligibility to apply in this context is limited to the spouses, partners and children of someone admitted as a Tier 2 migrant (in this case a Minister of Religion): see Part 8 Immigration Rules paragraphs 319AA – 319K. Additionally, the appellant did not satisfy paragraph 317 of the Immigration Rules as a dependent parent or grandparent of someone present and settled in the United Kingdom because, inter alia, she was not financially wholly or mainly dependent on the relevant individual present or settled in the United Kingdom.
25. By the time of the decision on Ms Gain's application to remain in January 2013 as a General Visitor, Chapter 8 of the Immigration Rules had been amended, updated and consolidated in a new appendix FM (see Statement of Changes in Immigration Rules, HC 194, 13 June 2012). As Sales J explained in R(Nagre) v SSHD [2013] EWHC 720 (Admin) at [8]:

The new rules introduced into the Immigration Rules by HC 194 are the product of work conducted by the Home Office to produce rules in a form which addresses more explicitly than the Immigration Rules did up until July 2012 the factors which, according to domestic and Strasbourg case-law, weigh in favour of or against a claim by a foreign national based on Article 8 to remain in the United Kingdom. […]

26. I note in passing that the substantive requirements under the rules for entry clearance as an Adult Dependent Relative were also amended (see section E-ECDR) with the intention of ending "the routine expectation of settlement in the UK for parents and grandparents aged 65 or over who are financially dependent on a relative here": see the introduction to the Immigration Directorate Instructions (effective from 13 December 2012).
27. In considering proportionality in this context, the case for remaining in the United Kingdom on the basis of private and family life needs to be considered against the relevant policy of the Secretary of State. As Beatson LJ observed in Meera Haleemudeen v SSHD [2014] EWCA Civ 558:

40. These new provisions in the Immigration Rules (in force since 9 July 2012) 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. […]

28. It is clear that under the versions of the Rules in force at the time of the decisions on 20 June 2012 (the application for entry clearance) and 20 March 2013 (the application for leave to remain), the Government's consistent approach was that migrant workers should not be able to bring a wide group of relatives or dependents to the UK to live for an extended period or to settle in this country. This was, potentially, an important consideration when assessing the proportionality of an interference with the appellant's Article 8 rights outside the Rules. In the instant case, the Immigration Rules do not provide a "complete code" and although "the proportionality test (was) more at large" (MM (Lebanon) and others v SSHD [135]), the Rules nonetheless help illuminate the regulatory and policy context which the judge needed to take into account, along with a range of other factors. The First Tier Tribunal judge did not analyse what, in this sense, is said to be the legitimate end the respondent was seeking to achieve. The expression by the judge at [39] of his Decision that the interference may not have been justified at all appears to indicate that he did not take account of the respondent's policy to restrict the category of relatives of migrant workers who are able to join the person who is temporarily living in the United Kingdom and to limit the circumstances in which someone in the appellant's position can qualify as a dependent. I stress that the existence of this policy was not in any sense necessarily determinative, but it should have formed part of the judge's reasoning on the issue of proportionality.
29. It follows that I do not consider the decision of the First Tier Tribunal judge is sustainable. Given that in my judgment both judges approached this case erroneously, I would allow this appeal and remit the case to the Upper Tribunal in order for the Article 8 decision to be remade. It would be inappropriate for this court to undertake that exercise.

Dame Janet Smith DBE

30. I agree.

Lord Justice Elias

31. I also agree.