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)
UPPER TRIBUNAL JUDGE ALLEN
JR/1070/2013

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th March 2015

Lord Justice Aikens :

1. This is an appeal from the decision of Upper Tribunal Judge Allen dated 7 January 2014 whereby he refused to grant permission to seek judicial review of the decision of the Respondent ("the SSHD") dated 17 July 2013 refusing Rajibul Islam, the appellant, leave to remain in the UK. The sole basis on which the appellant had argued that he should be entitled to remain was that removal would be a disproportionate interference with his rights to a private life under Article 8 of the European Convention on Human Rights ("ECHR"). Laws LJ gave permission to appeal the decision of the Upper Tribunal on paper on 5 August 2014. The appellant submits that this court should grant permission to bring the judicial review proceedings and should allow the claim and set aside the SSHD's decision of 17 July 2013 as being unlawful.

The background facts

2. The background facts are not in dispute. They can be summarised thus: the appellant is a national of Bangladesh. He was born on 24 December 1982 and so is now 32 years old. He first entered the UK with leave to do so as a student on 8 February 2003. He was granted leave to remain as a student a further four times, the last leave being granted until 31 January 2009. Prior to the expiry of that last period the appellant made a further application to remain, again as a student. On 25 May 2010 the SSHD refused that application.
3. The appellant had a right of appeal and he exercised it. The appeal was rejected by the First Tier Tribunal and permission to appeal from that rejection was refused on 29 October 2010. The appellant's appeal rights were therefore exhausted as from 10 November 2010.
4. The appellant has remained in the UK since then. He is an "overstayer". On 6 June 2012 the appellant was arrested and detained for removal. He was served with forms 1S.151A and Part 2 by the SSHD as an "overstayer".
5. On 15 June 2012 the appellant applied for leave to remain using form FLR(O) version 06/2012, which is for applications for leave to remain based on various criteria not covered by other types of form, where the application is made after 1 June 2012. In essence the appellant relied on an "established right to private life in the UK under Article 8" of the ECHR, so that it would be a disproportionate interference with those rights to remove him. The letter that was sent in support of the application by the appellant's solicitors asserted that he had had a private life in the UK since 2003, ie for over 9 years; that he had no job or property in Bangladesh; that he had established a private life in the UK during the 9 years he had been in the UK and so regarded the UK as his "homeland"; that he was not a burden on the UK state nor otherwise undesirable and that he would suffer hardship if he were to be sent back to Bangladesh.
6. In addition the letter asked the SSHD to exercise her discretion, even if no specific criteria for leave to remain were fulfilled if the individual circumstances were "so compelling" that it would be considered appropriate to grant some form of leave. By implication, it was argued that the appellant would fall within this category if he did not fall within any others.
7. The evidence in support of the application was a short statutory declaration by the appellant's cousin, Mrs Rajarajan, stating that she had financially and emotionally supported the appellant in the UK since she arrived in the UK, although that date is not given. Mrs Rajarajan stated that the appellant could reside with her and her husband in their rented property in East Ham, without paying any rent or utility bills.
8. On 9 July 2012 the appellant was released from detention with reporting conditions.
9. The SSHD refused the appellant's application on 17 July 2013. The appellant wishes to challenge this decision by way of Judicial Review. The appellant's solicitors sent a pre-action letter on 6 August 2013 and the SSHD responded to it in a letter from the Home Office dated 7 September 2013. In that letter the Secretary of State noted that the appellant had requested that a removal decision be made. It pointed out that the Secretary of State was not obliged to make a removal decision despite the appellant's request. The letter of 7 September 2013 continued:

"The Secretary of State will only make a removal decision where there is a request to do so and, where: …

…………………….

o There are other exceptional and compelling reasons to make a removal decision.

Based on the facts of your case, the Secretary of State has decided not to make a removal decision at present. If you believe that your client does meet these criteria you should write to us enclosing evidence that you meet the criteria and we will reconsider this decision".

10. The Judicial Review claim was issued on 5 September 2013. Jeremy Baker J refused permission to seek Judicial Review on 17 October 2013. The appellant then renewed his application and permission was refused at an oral hearing before Upper Tribunal Judge Allen on 7 January 2014.

The SSHD's decision letter of 17 July 2013 refusing the application for leave to remain.

11. This decision letter ("the 2013 decision letter") begins by stating: "in refusing your application consideration has been given to your private life under Article 8 which from 9 July 2012 falls under paragraph 276ADE of the rules" which is a reference to a paragraph in the Immigration Rules that came into force on 9 July 2012 as a result of the Statement of Changes in the Immigration Rules (HC 194). I will call those "the 2012 IR". The 2013 decision letter went on to consider the "requirements" of those rules. It concluded that the appellant did not meet the requirements of paragraph 276ADE, as summarised in the letter.
12. Under the heading "Exceptional Circumstances", the 2013 decision letter stated that the SSHD had considered whether the appellant's application "raises or contains" any "exceptional circumstances, which, consistent with the right to respect for private and family life contained in Article 8 of the ECHR might warrant consideration by the Secretary of State of a grant of leave to remain in the UK outside the requirements of the Immigration Rules". The letter concluded that there were none.
13. The 2013 decision letter continued:

"It is noted that you have a cousin in the UK however this does not constitute family life as set out in Appendix FM of the Immigration Rules. Your application for leave to remain in the United Kingdom is therefore refused.

An application was made on your behalf on 15 June 2012. However, your leave to remain [as a student had] expired. You therefore did not have leave to remain at the time of your application.

Your application for leave to remain in the United Kingdom has been refused and you no longer have any known basis to stay here. There is no right of appeal against the refusal".

The decision of Upper Tribunal Judge Allen

14. UT Judge Allen gave a careful judgment upon the renewed oral application for permission to bring Judicial Review proceedings. He noted that it was common ground that the appellant had been unlawfully within the UK since his application for permission to appeal the SSHD's refusal to grant leave to remain as a student had itself been rejected in October 2010. Thus, the appellant had been unlawfully in the UK since 8 October 2010, a period of three years. Judge Allen then referred to the basis upon which the appellant had made his application for leave to remain on 15 June 2012. He noted that the 2013 decision letter had considered the matter under the 2012 IR. The judge then considered the relationship of Article 8, the Immigration Rules and the case law and he referred in particular to the very well known cases of Huang v Secretary of State for the Home Department [2007] 2 AC 167, ("Huang"), MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544 ("MF (Nigeria") and R(Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) ("Nagre") .
15. Judge Allen said that this was the context in which the SSHD's decision had to be viewed. He concluded that the SSHD was entitled to come to the view that there was no family life with the appellant's cousin. He noted that there was very little reference to private life in the letter accompanying the application of 15 June 2012 other than the facts I have summarised above. The judge regarded the reference to "exceptional circumstances" in the 2013 decision letter as not referring to a legal test but a "proper response" to the matters that had been put before the SSHD. The judge noted that further evidence of a private or family life was before him but that had not been before the SSHD so could not be relied on in relation to the application for Judicial Review.
16. Judge Allen summed up the position at paragraph 11 of his reasons. He stated:

"But with regard to the particular matter before me, I see no arguable public law error in the respondent's assessment of these matters and nor for the sake of completeness do I think there is any arguable error in what is said to be a fettering of the respondent's discretion in the policy in relation to removals and the failure to make a removal by this time. This is a discretion of the Secretary of State. I understand Professor Rees's point that he has not argued that a decision to remove should have been made at the same time as the refusal of leave to remain and that must be right as a matter of law, but I do not think that it has been shown to be arguable that there is any unlawful fettering in the policy of discretion or public law error in failing to make a decision at this point by the respondent".

What Immigration Rules apply to the appellant's application of 15 June 2012

17. The 2012 IR were promulgated on 13 June 2012 and took effect from 9 July 2012. They were the subject of the Statement of Changes (HC 194). There was a further Statement of Changes (HC 565) which was promulgated on 5 September 2012 and took effect the following day, which I will call the 2012 IR Bis. In summary, before the 2012 IR there was no express recognition in the Immigration Rules of a right to remain in the UK based on respect of private life or family life enshrined in Article 8. But if a person wishing to obtain leave to remain could not rely on one of the rules in the old Immigration Rules, he could attempt to do so by relying on Article 8 rights. There was a deal of case law on how the SSHD had to approach this issue, of which Huang was the leading case.
18. Part 7 of the 2012 IR, principally a new paragraph 276 ADE, dealt expressly with applications based on the right to respect of a private life. The intention was that the new Rules, particularly paragraph 276 ADE, would deal with most cases, but it was anticipated that, very occasionally (I deliberately avoid using the word "exceptionally" in case of misunderstanding) there could be a claim under Article 8 outside the new rules. The correct approach was to consider the claim under the 2012 Rules first and then, if the claim failed under those rules, to consider the Article 8 claim.
19. Statement of Changes (HC 194) is headed "Implementation". The first paragraph states that, subject to certain exceptions (which are irrelevant for present purposes) "the changes set out in this Statement shall take effect on 9 July 2012". The following paragraph, (the "Implementation Provision") then reads:

"However, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012."

20. The general rule, which had been stated by the House of Lords in Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230 ("Odelola), is that changes in Immigration Rules will apply to all applications made after the date the change takes effect and will also apply to all applications that have been made before the date of change, which applications are still pending at that date. However, as Lord Brown of Eaton-under-Heywood acknowledged at [39] of his speech in Odelola that general rule will not apply if the changes in the Immigration Rules "specify to the contrary".
21. In Edgehill v Secretary of State for the Home Department [2014] EWCA Civ 402 ("Edgehill") this court held that, upon the correct construction of the Implementation Provision in the Statement of Changes (HC 194), any application for leave to remain that had been made before 9 July 2012 would be decided under the pre- 2012 IR, so that the 2012 IR, and paragraph 276 ADE should be disregarded when considering such an application. However, as Jackson LJ emphasised at [33] of his judgment, a "passing reference" to paragraph 276 ADE could not be taken as meaning that the decision of the SSHD had been based on the new rules. The decision would only be unlawful if a consideration of the new rules had materially affected it.
22. A contrary reading of the same Implementation Provision was given by this court in Haleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558, "Haleemudeen") which was decided two weeks after Edgehill. However, the court in that case was neither referred to the Implementation Provision of the 2012 IR nor to Edgehill.
23. On 12 February 2015, another division of this court (which included Underhill LJ) handed down its decision in Singh v Secretary of State for the Home Department and Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74 ..."Singh"). The first of two issues to be decided in that case was: which is correct – Edgehill or Haleemudeen? The court held that Edgehill was to be preferred, although Arden LJ had some qualifications to make which are not material to the present case. We must therefore follow the latest decision of this court on the topic, viz. Singh and so follow the decision in Edgehill.
24. That is not the end of the story, however. No sooner had the SSHD brought the 2012 IR into effect than, with dizzying rapidity, she changed her policy again. The 2012 IR Bis were brought into effect on 6 September 2012 by Statement of Changes (HC 565). That has no equivalent of the Implementation Provision. Paragraphs A277B and A277C of 2012 IR Bis read:

"A277B. Where the Secretary of State is considering an application for indefinite leave to remain to which Part 8 of these rules continues to apply (excluding an application from a family member of a Relevant Points Based System Migrant) and where the application does not meet the requirements of Part 8 for indefinite leave to remain or limited leave to remain:

(a) the application will also be considered under paragraphs R-LTRP.1.1.(a), (b) and (d), R-LTRPT.1.1.(a), (b) and (d) and EX.1. of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of these rules;

(b) if the applicant meets the requirements for leave under those paragraphs of Appendix FM or paragraphs 276ADE to 276DH (except the requirement for a valid application under that route), the applicant will be granted leave under those provisions; and

(c) if the applicant is granted leave under those provisions, the period of the applicant's continuous leave under Part 8 at the date of application will be counted towards the period of continuous leave which must be completed before the applicant can apply for indefinite leave to remain under those provisions.

A277C.  Subject to paragraphs A277 to A280 and paragraph GEN.1.9. of Appendix FM of these rules, where the Secretary of State is considering any application to which the provisions of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of these rules do not already apply, she will also do so in line with those provisions."

25. In the absence of any express indication to the contrary in HC 565, the general rule set out by the House of Lords in Odelola must apply, so that HC 565 and the new 2012 IR Bis will apply to all applications made prior to those new rules coming into effect if the application is pending at the time that they become effective.
26. The consequence is that because the SSHD did not make her decision on the appellant's application of 15 June 2012 until 13 July 2013, the 2012 IR Bis would apply, in particular A277B and A277C.

The arguments of the parties

27. Mr Zane Malik, who did not represent the appellant below (he was then a litigant in person), made two principal points and did so with characteristic clarity and conciseness. First, he submitted that, given this court's decision in Edgehill and Singh, the Secretary of State should have considered the appellant's application for leave to remain under the old, pre-2012 IR. Because the Secretary of State considered the appellant's application solely by reference to the 2012 IR it was unlawful. It was clear that the 2012 IR had materially affected the decision. Secondly, the Secretary of State acted unlawfully in refusing to make an appealable removal decision in this case. Mr Malik accepted that there is no general obligation on the Secretary of State to make a removal decision at the same time as refusing an application for leave to remain. The Secretary of State has now promulgated a new policy on removal decisions, which Mr Malik characterised as the "request for removal" policy, viz. removal decisions will generally be made upon a request by the person to be removed. However, in the Secretary of State's Reasons letter of 7 September 2013 she stated that a removal decision would only be made "where there is a request to do so". Therefore the Secretary of State has turned what was ostensibly a flexible policy into an inflexible and invariable one in this case by declining to make a removal decision in this case because there has been no specific request for her to make one.
28. Mr Malik submitted that this court should therefore grant the application for judicial review, quash the Secretary of State's decisions and remit the matter to the Upper Tribunal.
29. On behalf of the Secretary of State, Ms Mary Glass submitted that there was no merit in the Article 8 claim. The application for leave to remain made on behalf of the appellant in the solicitor's letter dated 15 June 2012 was very weak. There was no statement from the applicant himself. The claim to a "private life" was general and without detail. He had always been a student who had been granted specific periods of leave to remain and he had been an "overstayer" since 2010. Therefore he could never have adopted the UK as his "country of residence". There were no details of how he had "integrated" into the UK. The statutory declaration of the appellant's cousin had first been made for the purposes of a bail application and had then been annexed to the application for leave to remain. There is no indication that the appellant lives (or lived) with the cousin; nor is there any further details of the family relationship. Therefore, in Ms Glass' submission, if this application were to be considered on an Article 8 basis, rather than in accordance with the 2012 IR, it would inevitably be rejected, as it was, effectively, in the decision of UT Allen in refusing permission to apply for judicial review.
30. As for the specific removal decision or lack of it, Ms Glass submitted that the Secretary of State's letter of 7 September 2013 concerning removal cannot now be the subject of a claim for judicial review for two reasons. First, that decision is not referred to in the claim form as being the decision challenged; there is only a reference to the general policy. Secondly, it is now far too late to bring a claim. Ms Glass accepted that there is an oblique reference to the "removal decision" in the decision of UT Judge Allen at paragraph 11, but not to the letter of 7 September 2013. In any event, as stated in that letter, the appellant could, even now, write to the Secretary of State to make a removal decision by setting out the "compelling and exceptional circumstances" to do so in his case.
31. Mr Malik riposted that the effect of paragraphs 29 and 30 of the Grounds for seeking Judicial Review, whilst not specifically referring to the letter of 7 Sepember 2013, did refer to the "ongoing" refusal to make a removal decision and that was enough.

Conclusions

32. I am prepared, without deciding the point one way or the other, to consider this appeal on the basis that the Secretary of State should have made her decision on whether to grant leave to remain on the basis of the old, pre-2012 IR. Thus the decision should, on that basis, have been made purely on Article 8 grounds alone. Even assuming, as Mr Malik argued, that the Secretary of State was obliged to undertake a Nagre consideration of the Article 8 claim outside the IR, I am quite satisfied that if the Secretary of State had made her decision on that basis, she would have been entitled to conclude, indeed would inevitably have concluded, that the Article 8 claim must fail. There is no evidence of the appellant having a "family life" here in the UK. The evidence of a "private life" is virtually non-existent. There is nothing to show that an inability to remain in the UK would constitute a disproportionate interference with the appellant's right to a private life.
33. Accordingly, even if the Secretary of State made an error of law, it was not a material one, because on the basis of the best possible way in which the appellant's case could have been considered, it was bound to fail. Therefore, even if the basis for the decision of the Secretary of State in the decision letter of 17 July 2013 was unlawful, the application for judicial review of the decision to refuse leave to remain must be dismissed.
34. As for the Secretary of State's decision not to make an appealable removal order, I will assume that it is to be regarded as being the subject of an application for judicial review. Even so, there is no basis upon which judicial review could be granted. The current policy as set out in the current guidance (first issued in February 2012) has been the subject of judicial review and was found to be lawful: see R(Oboh and Patel) v Secretary of State for the Home Department [2014] EWHC 967 (Admin). There is not an inflexible and invariable policy to make a removal order only upon a specific request being made. Moreover, a removal decision may be made in this case, as the letter of 7 September 2013 makes clear, if those acting for the appellant wrote to the Secretary of State, enclosing evidence that the appellant met the criteria set out in the letter. In this case that would mean evidence that there are "other exceptional and compelling reasons to make a removal decision". In the circumstances, there is no ground on which a judicial review claim can be mounted, even assuming that one could be made so long after the letter of 7 September 2013 was sent.
35. I would dismiss this appeal.

Lady Justice Black

36. I agree with both judgments.

Lord Justice Underhill

37. I too would dismiss this appeal. My reasons are essentially the same as those of Aikens LJ, but I will state them shortly in my own words. Mr Malik in his succinct and well-expressed skeleton argument took three points, which I will take in turn.
38. First, he argued, relying on the decision of this Court in Edgehill, that the Secretary of State should not have applied the provisions of the new Rules, and specifically paragraph 276ADE, in considering the Appellant's claim under article 8 of the ECHR. That argument cannot survive the recent decision in Singh (which post-dated Mr Malik's skeleton argument), which establishes that the position as stated in Edgehill does not survive the implementation of HC565 on 6 September 2012: the impugned decision in this case was made in July 2013. But I also agree with Aikens LJ that even if the Appellant's claim had fallen to be decided under the old Rules it would inevitably have failed since there was nothing in his application – the evidence being as summarised at para. 29 above – that would have entitled him to leave to remain in this country when he had no right to do so under the Rules.
39. Mr Malik's second point was that there had been no adequate consideration by the Secretary of State of whether the Appellant did have a valid claim under article 8 outside the Rules – the so-called "second stage" recognised in such cases as Nagre. The particular way in which he couched the argument, by reference to what he submitted was a qualification of the reasoning in Nagre deriving from Aikens LJ's judgment in R (MM) v Secretary of State for the Home Department [2014] EWCA Civ 985, [2015] 1 WLR 1073, is now also fatally undermined by Singh – see paras. 63-64 of the judgment in that case. But the broader point also seems to me to be hopeless: even if there had been some deficiency in the Secretary of State's consideration, he could not be entitled to judicial review unless there were in fact some reason to believe that he had a valid claim under article 8, which for the reasons already referred to it is clear that he did not. Mr Malik candidly accepted in his oral submissions that this was "a somewhat weak case" under article 8, but he said that that had also been so in Haleemudeen, yet this Court had still decided to quash the Upper Tribunal's decision. However the decision to remit in that case was made with avowed difficulty (see para. 64 of the judgment of Beatson LJ) and the circumstances were not comparable to those of the present case.
40. Mr Malik's third point is of a rather different character. The Secretary of State followed in this case her normal practice of not making a removal decision at the same time as the refusal of leave to remain, which meant that there was no appealable decision under the 2002 Act. It is now well-established that that course is not inherently unlawful: see Patel v Secretary of State for the Home Department [2013] UKSC 72, [2014] AC 651. The Secretary of State has issued guidance relating to the circumstances in which a removal decision will be made in the case of a person who has no leave to remain. This includes the following passage:

"The Home Office is not required to routinely make a removal decision at the same time as refusing leave to remain from an applicant with no current leave.

If a removal decision is not made and served alongside a decision to refuse of (sic) an out of time application for leave to remain, a removal decision will be made if the applicant later requests it and it is appropriate to do so.

When making a decision to accept a request, you must consider:

the need to promote the welfare of children who are in the UK

any direct cost in supporting the applicant and dependants being met by the Home Office or a local authority (under section 21 of the National Assistance Act 1948 or section 17 of the Children Act 1989), and

exceptional and compelling circumstances.

You can make a removal decision when requested in the following cases:

the refused application for leave to remain included a dependant child under 18 resident in the UK for three years or more

the applicant has a dependant child under the age of 18 who is a British citizen

the applicant is being supported by the Home Office or has provided evidence of being supported by a local authority (under section 21 of the National Assistance Act 1948 or section 17 of the Children Act 1989), or

there are other exceptional and compelling reasons to make a removal decision at this time."

In R (Oboh) v Secretary of State for the Home Department [2014] EWHC 967 (Admin) a challenge to the lawfulness of that guidance was rejected by Burnett J. That decision is the subject of a pending appeal to this Court, but Mr Malik did not seek to challenge it before us. He took a narrower point based on the terms of the Secretary of State's response to the Appellant's pre-action protocol letter. In that letter his solicitors had (among other things) challenged the reasonableness of the Secretary of State's refusal to make a removal decision in circumstances where he had made it clear that he had no intention of departing voluntarily and has asked her now to do so. The relevant passage in the response (which is dated 7 September 2013) reads:

"The Secretary of State will only make a removal decision where there is a request to do so and, where:

the refused application for leave to remain included a dependant child under 18 resident in the UK for 3 years or more, or

the applicant has a dependant child under the age of 18 who is a British child, or

the applicant is being supported by UKBA or has provided evidence of being supported by a local authority, or

there are other exceptional and compelling reasons to make a removal decision.

Based on the facts of your case, the Secretary of State has decided not to make a removal decision at present. If you believe that your client does meet these criteria you should write to us enclosing evidence that you meet the criteria and we will reconsider the decision."

Mr Malik submitted that that showed that, while the guidance was no more than guidance, the Secretary of State had treated it as an inflexible rule: he focused particularly on the words "will only".

41. It is debatable whether the language of the Claim Form is wide enough to cover both the original decision to refuse the Appellant leave to remain and the Secretary of State's separate and subsequent decision not to make a removal decision. But, like Aikens LJ, I am content to assume that it is. I do not, however, believe that the Secretary of State's letter of 7 September 2013 shows that the guidance was being interpreted more rigidly than its terms warranted. The use of the phrase "will only" does not turn a policy into a rule, since one of the specified circumstances in which the Secretary of State says she "will" make a removal decision is where there are "exceptional and compelling reasons" to do so. That preserves the element of flexibility required by the guidance. I also accept Ms Glass's submission that the fact that the Secretary of State positively invited the Appellant's solicitors to put forward such reasons means that the Court would not as a matter of discretion grant judicial review.