England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2A 2LL
		11 November 2015

LORD JUSTICE UNDERHILL:

1. This hearing was listed to determine the Secretary of State's application for permission to appeal with the substantive appeal to follow if permission were given.
2. The case is one of a number concerning the provisions of Appendix FM of the Immigration Rules, introduced with effect from 9 July 2012, under which the sponsor of an applicant seeking leave to enter as a spouse must show that he or she has an income of at least £18,600 per year, the so-called "minimum income limit", or a greater sum if there are children. The history of the challenges to those provisions appears from the decisions of this court in R (MM (Lebanon)) v Secretary of State for the Home Department [2015] 1 WLR 1073 and Secretary of State for the Home Department v SS (Congo) [2015] EWCA Civ 387; I need not set it out in detail here. In bare outline, in the first instance decision in MM (Lebanon), decided on the 5 July 2013, Blake J held that the minimum income limit was inconsistent with article 8 of the European Convention of Human Rights, essentially because it was too rigid and at too high a level. One important feature of his decision and reasoning was that it suggested that tribunals should in practice ignore the limits provided for in the Rules and apply a different and lower limit of £13,400 based on a recommendation of the Immigration Advisory Committee. That decision was overturned by the Court of Appeal on 11 July 2014 in the decision to which I have already referred. I mention, for completeness, although it is not in fact material for our purposes, that the Supreme Court granted permission to appeal on 19 May 2015, and the appeal will be heard between 22 and 24 February 2016.
3. In the interval of a year or so between the decisions of Blake J and the Court of Appeal, the First-tier and Upper Tribunal allowed a large number of appeals against decisions of Entry Clearance Officers in reliance on Blake J's decision. When that decision was overturned, the Secretary of State appealed in those cases. Six such "post MM" cases were heard together and decided as SS (Congo): again, I have already referred to that decision. On 23 April 2015 those appeals that were in time were allowed. The Supreme Court has very recently given permission and the appeals are to be heard with MM.
4. A number of the post-MM cases, including this one, were stayed pending the outcome in SS. Most have now been compromised or further stayed pending the outcome of the appeals to the Supreme Court. However, such agreement has not proved possible in this case and the respondent and her sponsor made it clear that they do not wish the matter to await the outcome of the appeals to the Supreme Court.
5. On this hearing, the Secretary of State, the appellant, has been represented by Miss Claire Palmer, of counsel, and we are grateful for her clear and forceful submissions. The respondent, being overseas has, of course, not appeared, but her sponsor has appeared in person, although in the event we did not have to hear from him.
6. I can summarise the facts and the procedural history fairly shortly.
7. The respondents, Rabia Asad and Mohammed Musab, are the wife and son respectively of the sponsor, Asad Darr. Mr Darr is himself a British citizen, living and working here. They have another child here, a daughter, who is a British citizen although her brother is not. The precise background as to how that has occurred is not clear from the material before us. On 7 December 2012 the respondents applied for entry clearance to join the sponsor in this country. It was necessary under the rules that Mr Darr, as their sponsor, could show an annual income of at least £22,400. It seems – although, again, the facts are not as clear as one would wish – that in the application an annual income for the previous year of £24,750 was claimed; or in any event figures given which were said to produce that result. It is, however, common ground that not all the supporting documents required by the rules were produced to the Entry Clearance Officer.
8. The appeal to the First-tier Tribunal was heard in February 2014. The judge accepted that the respondents were unable to satisfy the Rules, at least because of the failure to supply supporting documentation. It is unclear from her decision whether she accepted that there was also a substantive failure to meet the minimum income figure. It rather seems as though the position was that she believed the figure could have been proved from subsequently supplied evidence, but that is not, however clear. She nevertheless allowed the appeal by reference to article 8 "outside the rules". Her reasoning can be summarised as follows. She started by referring to the decision of the Upper Tribunal in Gulshan [2013] UKUT 640 (IAC). The passage which she quoted briefly summarises the effect of the decision of Blake J in MM and goes on to say that if leave to remain (because it was a leave to remain case) were to be granted outside the Rules it would be necessary to show "compelling circumstances not sufficiently recognised under the rules" and "other non-standard and particular matters demonstrating that the rule will be unjustifiably harsh". The judge then goes on to say that it makes no difference that Gulshan was a case concerned with leave to remain rather than leave to enter. Applying that self-direction, she goes through the five Razgar steps and refers also to the then recent decision of the Supreme Court in Zoumbas v Secretary of State for the Home Department [2013] UK SC 74, which was the latest of a number of cases considering the effect of section 55 of the Border Controls and Immigration Act, 2009 and the requirements to treat the best interest of any children affected by an immigration decision as a primary consideration. Having purported to weigh the relevant factors in accordance with the Razgar test, and having regard to section 55, she allowed the appeal. She treated the decisive question as being the young age of the children – one was then aged four and the other only one. In her view, at that age in particular they especially needed the loving care of both parents. No reference was made to the decision of Blake J in MM, save to the extent that it had been referred to in the passage from Gulshan that was quoted.
9. The Secretary of State appealed to the Upper Tribunal. The grounds of appeal make no reference to MM. They were, in substance, that the judge either had not applied the "compelling circumstances" test which was required in accordance with Gulshan, or that, if she had, she had reached a result which was not open to her because there were in truth no compelling circumstances in the case.
10. The decision of the Upper Tribunal, which was promulgated on 23 June 2013, is very short. The judge summarised the reasoning of the First-tier Tribunal. He said that although the judge had not in her actual reasoning used the language of "exceptional" or "compelling" circumstances, since that language was used in the passage from Gulshan by reference to which she directed herself, it was sufficiently clear that that was the test which she had applied. As to whether the conclusion was open to her on the basis of that correct self-direction, he reminded himself that he should only allow the appeal if there were a material error of law and not simply on the basis that the decision was one to which he might not himself have come. Consistently with the way in which the grounds of appeal formulated, there was no reference to Blake J's decision in MM.
11. It seems clear in the light of the decision in SS that the judge in the First-tier Tribunal did in fact make one explicit error of law, in that she treated the Gulshan guidance as equally applicable to an application for leave to enter as to an application for leave to remain. This court in SS made it clear that that was not the case. It is not quite so clear that that error led her to applying the wrong substantive test, because the direction which she gave herself, based on Gulshan, was that it was necessary to show compelling circumstances in a case not sufficiently recognised under the rules, which is the very wording and test endorsed by this court in SS. However, the Secretary of State's case is that, whatever words were used, it is clear that the judge did not proceed in the right way by attaching the very substantial weight which this court held in SS must be given to the fact that the respondents had not complied with the rules about the proof of sponsor's income. What she had done was to apply what Miss Palmer called a "free-wheeling approach" to the application of article 8. I accept that that is, to say the least, arguable that the judge erred in that way.
12. However, this is a second appeal, and it is necessary that the second appeals test be satisfied. I would not, if this case stood alone, regard it as satisfying that test. If the judge was in error in the ways indicated it was a case of a one-off departure from a proper approach, and there is no specific injury to the public interest, apart from the general interest of maintaining proper immigration controls, which would require her error to be corrected. Miss Palmer submitted that the error in this case was particularly egregious – in other words, it was particularly obvious that the judge was wrong – and that in a case of that kind, even if not in the case of a merely arguable error, there was a compelling reason to allow the appeal to proceed. I am afraid I cannot accept that. There seems to me to be, subject to what I am about to say, nothing special about the error the judge made which would bring this case under the second limb of the second appeals test.
13. The complicating factor, however, is that this appeal is, as I have already said, one of a larger group of cases, case-managed as a whole; and it could be said, and was firmly said by Miss Palmer, to be arbitrary for there to be a distinction between those cases which happen to have been chosen as the initial test cases and those that were stood out to await the outcome. She was able to refer to correspondence received from the court which appeared to assume that it followed from SS (Congo) that permission to appeal ought to be given in all the cases that have been case-managed in that way. Indeed she suggested that there was some unfairness in the light of that letter, in the point being taken by the court at all. As to that, however, she was given the opportunity, to which she was able fully to respond, to address the question of the application on second appeals test. Her position was that the fact that this case was one of a single group of post-MM cases where the decision had been taken following the decision of the High Court in MM was a sufficient reason to satisfy the second limb of the second appeal's test.
14. I see the force of that point generally, and I would certainly not want our decision in this case to be treated as determinative of how the second appeals test should be applied such other cases as may be in the pipeline. However, if one looks at the circumstances of this particular case, it does not appear to me that there is any unfairness or arbitrariness in it being dealt with in different way from the cases which were heard together in SS. In all the four cases in SS in which the appeal was allowed, the First-tier Tribunal and/or the Upper Tribunal had explicitly relied on the decision of Blake J in MM at first instance, and had in effect applied a minimum income limit of £13,400 and had not regarded it as necessary to show compelling reasons for granting leave the rules: that is clear from paragraphs 64, 73, 79 and 87 in SS. That was not, as far as her expressed reasoning is concerned, the way in which the judge approached the case here. She did not proceed on the basis that the minimum income limit should, in effect, be disregarded as long as the respondents showed an income of £13,400. She proceeded on the basis that there was a failure to comply with the Rules but that there were, as she found, compelling reasons – considering in particular the best interest of the children – why leave to enter should be given outside the Rules. That conclusion may well, I put it no higher – have involved an error of law, but it was not what I might call by way of shorthand an MM-error. It was the kind of error which occurs from time to time in all cases where the compelling circumstances test applies. The same applies to the decision of the Upper Tribunal.
15. In my view, that differentiates this case from those which were considered in SS and I do not believe that any injustice will be done to the Secretary of State if we were to apply the second appeals test in the usual way. For that reason I would, refuse permission to appeal.

LORD JUSTICE LEWISON

16. I agree.