ON APPEAL FROM UTIAC
Judge Christopher Hanson
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the High Court (Administrative Court)
Professor Andrew Grubb (Deputy High Court Judge)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEWISON
LORD JUSTICE UNDERHILL
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|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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David Blundell (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 12th November 2014
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Lord Justice Underhill :
THE RULES AND THE CHANGES
(1) THE OLD RULES
(2) THE CHANGES MADE BY HC 194
"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."
I will refer to that as "the implementation provision".
Changes to Part 7
"Requirements to be met by an applicant for leave to remain on the grounds of private life
The requirements to be met by an applicant for leave to remain on the grounds 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); or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life residing continuously in the UK (discounting any period of imprisonment); or
(vi) 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.
In considering applications under this paragraph, the Secretary of State shall attach less weight to private life in the UK established following refusal of an earlier application for leave to remain made under paragraph 276ADE."
Changes to Part 8
"This Appendix applies to applications under this route made on or after 9 July 2012 and to applications under Part 8 as set out in the Statement of Changes laid on 13 June 2012 (HC 194), except as otherwise set out at paragraphs A277-A280."
Its first substantive paragraph – "GEN 1.1" – reads as follows:
"This route is for those seeking to enter or remain in the UK on the basis of their family life with a person who is a British Citizen, is settled in the UK, or is in the UK with limited leave as a refugee or person granted humanitarian protection. It sets out the requirements to be met and, in considering applications under this route, it reflects how, under Article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others. It also takes into account the need to safeguard and promote the welfare of children in the UK."
"This paragraph applies if
(a) (i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years;
(bb) is in the UK
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application;
(ii) it would not be reasonable to expect the child to leave the UK; or
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK."
"A277 From 9 July 2012 Appendix FM will apply to all applications to which Part 8 of these rules applied on or before 8 July 2012 except where the provisions of Part 8 are preserved and continue to apply, as set out in paragraph A280.
A278 The requirements to be met under Part 8 after 9 July 2012 may be modified or supplemented by the requirements in Appendix FM.
A279 The requirements of sections "S-EC: Suitability – entry clearance" and "S-LTR: Suitability – leave to remain" of Appendix FM shall apply to all applications made under Part 8 and paragraphs 276A-276D and paragraphs 398-399A shall apply to all immigration decisions made further to applications under Part 8 and paragraphs 276A-276D where a decision is made on or after 9 July 2012, irrespective of the date the application was made."
The provisions of paragraph A280 are very complicated and fortunately I need not set them out here: it is sufficient to say that it preserves a few of the provisions of Part 8 in all circumstances and provides for others to remain applicable in particular classes of case.
(3) THE CHANGES INTRODUCED BY HC 565
THE FACTS AND THE PROCEDURAL HISTORIES
"79. It is clearly the case that this Appellant cannot hope to succeed under paragraph 276B and his only hope is Article 8, which is now governed by paragraph A277B, and Appendix FM of the Immigration Rules, which 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 family and private life. That does not rule out a separate consideration under Article 8 but is persuasive.
80. The situation here is that the Appellant has never had any leave to remain in the United Kingdom and apart from initially claiming asylum, he made no attempt to regularise his satiation in the United Kingdom until he made an application for indefinite leave to remain in early 2006. Weighed against that is the fact that he has had to wait over six years for a response from the Home Office.
81. During that time, he has met his present partner. They are married according to the Sikh religion but are not lawfully married in the United Kingdom. His partner is an overstayer, having come as visitor. They have one child in India, who is being looked after by his wife's brother and sister in law and a child in the United Kingdom, who is Indian and has no status in the United Kingdom.
82. The Appellant has considerable equity in his property in the United Kingdom and there is no problem in him putting that house on the market and using the proceeds to set himself up in India.
83. The Appellant has never had employment in India but has acquired skills in the United Kingdom, both as an HGV driver and as a construction worker and would have no great difficulty in finding employment in India. There is no reason for him to return to the village from which he came.
84. The Appellant acknowledges that he has no lawful right to be in the United Kingdom, but says that he has acquired friends in the United Kingdom and has adapted to the British way of life. That no doubt is true, but all that has happened during a time when he well knew that he had no right to be in the United Kingdom and that he was at risk of being returned to India.
85. The Respondent has, in the Refusal Letter set out the requirements to be met under the current Immigration Rules and I find that the decision reached, in respect of those rules, is entirely correct and that no other decision could be reached, based on the evidence before me.
86. There is clearly both a family and a private life and removal will affect the Appellant's private life but not in a way which could be described as being disproportionate.
87. There will be no effect on his family life as the removal will be the entire family and will result in their being reunited with their so in India."
"… this case fell precisely within the category recognised by Sales J as not demonstrating any arguable case outside of the Rules. The Claimant is an adult; 23 years of age at the time of the decision. She was an adult, obviously, when she married even though she came here when she was 17. The precarious immigration status of the Claimant was obvious when they entered a religious marriage in 2009. Nothing that I have been referred to arguably demonstrates that there was anything exceptional or compelling to require a consideration of Article 8 beyond those matters that were dealt with in the Rules."
That reasoning reflects the Secretary of State's Amended Summary Grounds of Defence, in which it was contended that, whatever the force of the procedural points, Ms Khalid had no arguable claim based on article 8 outside the Rules. Reliance was placed on the analysis by Sales J in Nagre of the effect of the Strasbourg jurisprudence (which I set out at para. 73 below). We have the transcript of the hearing, from which it is clear that this was also the main thrust of counsel's oral submissions. When the Judge put the point to Mr Malik in his reply his response was that it was enough at the permission stage that the Secretary of State had applied the wrong Rules: the materiality of that error was a matter for the full hearing.
(1) That it was wrong for the Secretary of State to rely on the new Rules because her application pre-dated 9 July 2012. Mr Malik told Gloster LJ about Edgehill and Haleemudeen and that permission had been given in Mr Singh's case: she directed that the two appeals be listed together. I am bound to observe that though that was indeed an arguable point, it was not a ground for challenging Professor Grubb's decision because he had accepted Mr Malik's case on it.
(2) That Professor Grubb was wrong to rely on what Sales J had said in Nagre about it being unnecessary in every case to proceed to a substantial second stage, since that had been disapproved by this Court in R (MM) v Secretary of State for the Home Department  EWCA Civ 985.
(3) That the Secretary of State had been obliged as a matter of law to consider her article 8 rights outside the Rules. Mr Malik relied on the judgment of Mr Michael Fordham QC, sitting as a Deputy High Court Judge, in R (Ganesabalan) v Secretary of State for the Home Department  EWHC 2712 (Admin), which contains an analysis of the judgment of Sales J in Nagre. This seems to be a different route to what is ultimately the same point as (2).
I observe at this stage that none of those grounds engaged with the actual basis on which Professor Grubb refused permission to apply for judicial review.
(A) DO THE NEW RULES APPLY TO APPLICATIONS MADE BEFORE 9.7.12 ?
THE POSITION UNDER HC 194
"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."
(1) JE applied for leave to remain on 22 August 2011, relying inter alia on the length of her residence in the UK. She could not satisfy the long residence requirements under Part 7 and accordingly relied on article 8. Her appeals to the First-tier Tribunal and the Upper Tribunal were dismissed. The Upper Tribunal said this:
"In considering her length of residence in the UK we have regard to paragraph 276ADE of the Immigration Rules (as amended). That paragraph came into force on 9 July 2012, that is after the date of the immigration decision and the hearing in the First-tier Tribunal. However, Article 8 appeals are decided on the facts as at the date of the hearing and, whilst this was a decision made before the new Rules came into effect and therefore have no direct application and not retrospective, we consider it appropriate to give weight to the new Rules as being an expression of the legislature's views as to where the public interest lies."
The Tribunal noted that she had in fact by the time of the hearing before it attained fourteen years' continuous residence, but it said that that was less than the twenty years now required under paragraph 276ADE (iii).
(2) The facts of HB's case were essentially similar. She too made an application prior to 9 July 2012. She relied solely on article 8. Her application was refused, and her appeals to the First-tier Tribunal and the Upper Tribunal were unsuccessful. The Secretary of State and both Tribunals relied on the fact that she could not satisfy the twenty-year residence requirement in paragraph 276ADE (iii), though in her case she could not have satisfied the fourteen-year requirement either.
"The Immigration Rules need to be understood not only by specialist immigration counsel, but also by ordinary people who read the rules and try to abide by them. I do not think that [counsel's] interpretation of the transitional provisions accords with the interpretation which any ordinary reader would place upon them."
He did, however, add a caveat that a decision should not be invalidated simply by a passing reference to paragraph 276ADE: it would only be vitiated if the decision-maker had treated its provisions "as a consideration materially affecting the decision" (see para. 33). JE's appeal was allowed, but HB's was dismissed on the basis that her article 8 was claim was weak and that the Secretary of State and the tribunals would have made the same decision even if they had not had regard to the new Rules.
"That submission could not succeed in view of the decision in the House of Lords in Odelola … ."
He summarised this part of his reasoning at para. 51 as follows:
"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."
THE EFFECT OF HC 565
"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 to276DH (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."
HC 565 has no equivalent to the implementation provision in HC 194, so in accordance with the principle in Odelola it applies to applications pending as at the date of its implementation.
"… clarified that where the Secretary of State was considering Article 8, including in respect of an application made before 9 July 2012 which did not meet the requirements of the Rules under which the application had been made, this consideration should be in line with the new Immigration Rules on family and private life in Appendix FM and paragraphs 276ADE to 276DH."
"Second, headings are important. Paragraphs A277, A277B and A277C are in Part 8 of the Immigration Rules and fall under the main headings 'Family Members', and sub-heading, 'Transitional provisions and interaction between Part 8 and Appendix FM and Appendix FM – SE'. It is clear that the Paragraph A277C relates to applications under Part 8 of the Immigration Rules. It would not have been in Part 8 and under these headings if it was of universal application and related to all applications (whether under other Parts of the Immigration Rules or outside the Immigration Rules). The objective of this provision is that where someone seeks leave to remain solely under Part 8 after 9 July 2012 but fails for some reason, the Secretary of State is able to, if she deems it appropriate, consider the matter under the new rules, even if new rules do not apply because of the application of Paragraphs A277 and A280. This is clear from the phrase 'subject to paragraphs A277 to A280' used at the outset. The provision is therefore not intended to alter the position as to the implementation provision in HC 194 but was directed to post 9 July 2012 applications which were, because of Paragraphs A277 and A280, not 'already' subject to the new rules."
(1) It is a fair point that the placing of these paragraphs in Part 8 suggests that they are only concerned with applications to which that Part applies. That would not assist Ms Khalid, but it would assist Mr Singh, whose claim is based on private life rather than family life. This has given me some pause; but in the end it seems to me that the point based on the placing of the paragraph must yield to its explicit language. Paragraph A277C does not (unlike paragraph A277B) contain any express reference to Part 8, and the reference to "paragraphs 276ADE to 276DH (private life)" would, it seems to me, be wholly redundant if it were directed only at claims relying on family life. It is material to note that this anomaly is not new, because paragraph A279, which formed part of the new section introduced into Part 8 by HC 194, itself purported to apply to applications under Part 7: see para. 12 above.
(2) What Mr Malik suggests as "the objective of this provision" may have some relationship to the language of paragraph A277B, though I am not sure whether it is correct even in that context; but I can see no basis for it in the language of paragraph A277C.
(3) The phrase "subject to paragraphs A277 to A280" does not seem to me to advance Mr Malik's case. I have already made the point (see para. 43 above) that the concern of these provisions appears to be to identify which of the provisions of the old Rules continue to apply under the new regime rather than to specify that the new regime applies to pending applications.
"Subject to paragraphs A277 to A280 and paragraph GEN.1.9. of Appendix FM of these rules, where the Secretary of State deems it appropriate, the Secretary of State will consider 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, 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 paragraph 276ADE (private life) of these rules. If the applicant meets the requirements for leave under those provisions (except the requirement for a valid application), the applicant will be granted leave under paragraph D-LTRP.1.2. or D-LTRPT.1.2. of Appendix FM or under paragraph 276BE of these rules."
Mr Malik's point does not relate to the re-formulation of the second part of the paragraph, which he does not suggest makes any change material to these cases, but to the introduction of the phrase "where the Secretary of State deems appropriate". His point is that there is no sign that the Secretary of State in either case made a considered decision that it was "appropriate" to apply the new Rules. The language in both decision letters was standard-form and suggested that the new rules were applied simply because they were thought apply to all applications, whenever made, not because she deemed it appropriate under paragraph A277C.
CONCLUSION ON ISSUE (A)
(1) When HC 194 first came into force on 9 July 2012, the Secretary of State was not entitled to take into account the provisions of the new Rules (either directly or by treating them as a statement of her current policy) when making decisions on private or family life applications made prior to that date but not yet decided. That is because, as decided in Edgehill, "the implementation provision" set out at para. 7 above displaces the usual Odelola principle.
(2) But that position was altered by HC 565 – specifically by the introduction of the new paragraph A277C – with effect from 6 September 2012. As from that date the Secretary of State was entitled to take into account the provisions of Appendix FM and paragraphs 276ADE–276DH in deciding private or family life applications even if they were made prior to 9 July 2012. The result is that the law as it was held to be in Edgehill only obtained as regards decisions taken in the two-month window between 9 July and 6 September 2012.
(3) Neither of the decisions with which we are concerned in this case fell within that window. Accordingly the Secretary of State was entitled to apply the new Rules in reaching those decisions.
(B) FAILURE TO APPLY THE TWO-STAGE APPROACH
"40. We accordingly further endorse the Upper Tribunal's observation in MF [that is, MF (Article 8 - new rules) Nigeria  UKUT 00393 (IAC)] that judges called on to make decisions about the application of Article 8 in cases to which the new rules apply, should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. If he or she does, there will be no need to go on to consider Article 8 generally. The appeal can be allowed because the decision is not in accordance with the rules.
41. Where the claimant does not meet the requirements of the rules it will be necessary for the judge to go on to make an assessment of Article 8 applying the criteria established by law.
42. When considering whether the immigration decision is a justified interference with the right to family and/or private life, the provisions of the rules or other relevant statement of policy may again re-enter the debate but this time as part of the proportionality evaluation. Here the judge will be asking whether the interference was a proportionate means of achieving the legitimate aim in question and a fair balance as to the competing interests.
43. The weight to be attached to any reason for rejection of the human rights claim indicated by particular provisions of the rules will depend both on the particular facts found by the judge in the case in hand and the extent that the rules themselves reflect criteria approved in the previous case law of the Human Rights Court at Strasbourg and the higher courts in the United Kingdom."
That passage refers to the approach to be taken by judges, but it of course applies equally to the Secretary of State and her officials as the primary decision-makers.
"Nonetheless, the new rules do provide better explicit coverage of the factors identified in case-law as relevant to analysis of claims under Article 8 than was formerly the position, so in many cases the main points for consideration in relation to Article 8 will be addressed by decision-makers applying the new rules. It is only if, after doing that, there remains an arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8 that it will be necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under the new rules to require the grant of such leave."
He proceeded, at para. 30, to set out the passage from Izuazu which I have quoted above, but he added this (consonantly with what he had said at para. 29):
"The only slight modification I would make, for the purposes of clarity, is to say that if, after the process of applying the new rules and finding that the claim for leave to remain under them fails, the relevant official or tribunal judge considers it is clear that the consideration under the Rules has fully addressed any family life or private life issues arising under Article 8, it would be sufficient simply to say that; they would not have to go on, in addition, to consider the case separately from the Rules. If there is no arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8, there would be no point in introducing full separate consideration of Article 8 again after having reached a decision on application of the Rules."
"I cannot see much utility in imposing this further, intermediary, test. If the applicant cannot satisfy the rule, then there either is or there is not a further Article 8 claim. That will have to be determined by the relevant decision-maker."
Mr Malik submitted – this being his second ground of appeal in Ms Khalid's case – that this short passage undermined the entirety of Sales J's point about a full separate consideration of article 8 not always being necessary.
"Where a person seeks leave to remain, relying on private life or family life or both, and relying on Article 8, and where the claim fails at the first stage by reference to the applicable Immigration Rules (Appendix FM and Rule 276ADE):
(1) There is always a "second stage" in which the Secretary of State must consider the exercise of discretion outside the Rules and must be in a position to demonstrate that she has done so.
(2) The extent of that consideration and the extent of the reasoning called for will depend on the nature and circumstances of the individual case.
(3) In a case in which the consideration or reasoning is legally inadequate, and leaving aside cases in which there is a right of appeal to a tribunal, it is open to the Secretary of State to resist the grant of judicial review if she is able to demonstrate that the decision would inevitably have been the same."
In connection with point (1), Mr Fordham, at paras. 21-30 of his judgment, conducts a careful examination of the relevant cases, including Nagre, with a view to establishing that, even where the decision-maker is entitled to conclude that a separate consideration of article 8 outside the Rules is unnecessary because all the issues raised have been dealt with at the first stage, a conscious decision to that effect is required.
(1) I should emphasise – though it is in truth entirely clear from the full judgment – that Mr Fordham's statement that "there is always a second stage" does not in any way qualify what Sales J says at para. 30 of his judgment in Nagre. Sales J's point is that the second stage can, in an appropriate case, be satisfied by the decision-maker concluding that any family life or private life issues raised by the claim have already been addressed at the first stage – in which case obviously there is no need to go through it all again. Mr Fordham's point is that that is a conclusion which must be reached as a matter of conscious decision in any given case and cannot simply be assumed. I agree with both points.
(2) The statement that the decision-maker "must be in a position to demonstrate" that he or she has given the necessary consideration is simply a reflection of the ordinary obligation to record a material decision. If the decision-maker's view is straightforwardly that all the article 8 issues raised have been addressed in determining the claim under the Rules, all that is necessary is, as Sales J says, to say so.
(3) It may not be entirely apt to describe a decision as to whether article 8 requires that an applicant be given leave outside the Rules as an "exercise of discretion".
"… in a precarious family life case, where it is only in "exceptional" or "the most exceptional" circumstances that removal of the non-national family member will constitute a violation of Article 8, the absence of insurmountable obstacles to relocation of other family members to that member's own country of origin to continue their family life there is likely to indicate that the removal will be proportionate for the purposes of Article 8".
The Judge plainly had that guidance in mind. It is now well established that it is not necessarily disproportionate for a spouse to be required to leave the country to obtain entry clearance from abroad: see Secretary of State for the Home Department v Treebhowan  EWCA Civ 1054.
Lord Justice Lewison:
Lady Justice Arden:
Note 2 Appendix FM does not use conventional sequential paragraph numbers but an idiosyncratic system which makes it peculiarly clumsy both to navigate and to refer to. This is not the only idiosyncrasy in the paragraphing system in the Rules. The use of an initial A before some of the paragraph numbers introduced by HC 194 (e.g. paragraphs A277-A280) is puzzling. The sequence of new “private life” paragraphs, inserted after 276D, begins with 276ADE and then runs 276BE, 276CE and then 276DE–276DH. I do not doubt that some subtle intelligence is at work, but the system is quite opaque to the uninitiated and adds to the difficulty of finding one’s way around. [Back] Note 3 I should, perhaps, record that it had been said in the earlier judicial review proceedings that she would have no support or accommodation in Pakistan because her immediate family were all in the UK and her wider family would not assist her because the family disapproved of her marriage. But that point was not made in the current claim, the focus being entirely on her husband’s position. [Back] Note 4 Apart from anything else, as I say below, paragraph A279 goes on to apply certain provisions of Appendix FM expressly to pending applications – which would be unnecessary if that job had already been done generally by the preceding paragraphs or in the opening words of the Appendix. [Back] Note 5 Mr Blundell said that this was not in fact her intention and that the effect of HC 565 was to restore what had been intended all along. That may or may not be the case – or different people in the team responsible may have had different intentions or none – but we must of course judge by what she said. [Back] Note 6 Each Statement of Changes is prefaced by a list of earlier Statements. The most recent Statement of Changes included in the bundle before us, which is HC 532 promulgated on 10 July 2014, reveals that in the two years since the promulgation of HC 194 there have been a further twenty Statements. Only a few were in the bundle before us, but those that were are extremely extensive. HC 194 has 116 paragraphs, HC 565 has 238 and HC 760 has 337. Many of those paragraphs effect only trivial changes, but none can safely be overlooked. [Back] Note 7 The fact that different provisions apply to the deportation of foreign criminals means that the recent decision of this Court in YM (Uganda) v Secretary of State for the Home Department  EWCA Civ 1292 has no bearing on the present case. [Back]
Note 2 Appendix FM does not use conventional sequential paragraph numbers but an idiosyncratic system which makes it peculiarly clumsy both to navigate and to refer to. This is not the only idiosyncrasy in the paragraphing system in the Rules. The use of an initial A before some of the paragraph numbers introduced by HC 194 (e.g. paragraphs A277-A280) is puzzling. The sequence of new “private life” paragraphs, inserted after 276D, begins with 276ADE and then runs 276BE, 276CE and then 276DE–276DH. I do not doubt that some subtle intelligence is at work, but the system is quite opaque to the uninitiated and adds to the difficulty of finding one’s way around. [Back]
Note 3 I should, perhaps, record that it had been said in the earlier judicial review proceedings that she would have no support or accommodation in Pakistan because her immediate family were all in the UK and her wider family would not assist her because the family disapproved of her marriage. But that point was not made in the current claim, the focus being entirely on her husband’s position. [Back]
Note 4 Apart from anything else, as I say below, paragraph A279 goes on to apply certain provisions of Appendix FM expressly to pending applications – which would be unnecessary if that job had already been done generally by the preceding paragraphs or in the opening words of the Appendix. [Back]
Note 5 Mr Blundell said that this was not in fact her intention and that the effect of HC 565 was to restore what had been intended all along. That may or may not be the case – or different people in the team responsible may have had different intentions or none – but we must of course judge by what she said. [Back]
Note 6 Each Statement of Changes is prefaced by a list of earlier Statements. The most recent Statement of Changes included in the bundle before us, which is HC 532 promulgated on 10 July 2014, reveals that in the two years since the promulgation of HC 194 there have been a further twenty Statements. Only a few were in the bundle before us, but those that were are extremely extensive. HC 194 has 116 paragraphs, HC 565 has 238 and HC 760 has 337. Many of those paragraphs effect only trivial changes, but none can safely be overlooked. [Back]
Note 7 The fact that different provisions apply to the deportation of foreign criminals means that the recent decision of this Court in YM (Uganda) v Secretary of State for the Home Department  EWCA Civ 1292 has no bearing on the present case. [Back]