ON APPEAL FROM HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Alexandra Marks, sitting as a Deputy High Court Judge
Insert Lower Court NC Number Here
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVID RICHARDS
LORD JUSTICE HOLROYDE
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
THE QUEEN (on the application of PARAMJIT KAUR)
Parminder Saini (instructed by MTG Solicitors) for the Respondent
Hearing dates: 15th May 2018
Crown Copyright ©
Lord Justice Holroyde:
"… on compassionate grounds on the basis of her connections in the UK and possible breach of human rights under Article 8 of the ECHR, namely her right to respect for her private life in accordance with paragraph 276ADE(vi) and EX.1(b) of the Immigration Rules."
The letter went on to refer to Mrs Kaur's arrival in the UK on 10th December 2006, to her earlier frequent visits to her husband, to the failure of the SSHD to make any decision on the claim which she said she had made in 2011, and to the presence in the UK of her close family. The letter stated that Mrs Kaur did not wish to return to India, having established a private life in the UK, and said –
"… our client does not have any social, cultural family or any other ties in India any more. This is on account of the length of time that she has been in the UK, the ties and connections she has established in the UK, the fact that her family are residing in the UK and on the basis that our client's mother in law recently passed away in India. As such, our client has no further ties with her country of origin."
The letter went on to speak of Mrs Kaur having integrated herself into British society and asserted that she did not have any means of support in India. It further stated that there were insurmountable obstacles to family life continuing with her husband outside of the UK, on the basis that Mr Singh had been residing in the UK for more than 16 years and had established a life for himself here, being in gainful employment and making a valuable contribution to society. It was submitted that it would be unreasonable to expect him to leave the UK and return to India, and that there were insurmountable obstacles to Mrs Kaur and Mr Singh continuing their family life outside the UK.
The SSHD's decision:
"Whilst it is acknowledged that this decision may cause a degree of hardship and inconvenience for your client and her husband, this is not decisive from the viewpoint of Article 8. The Secretary of State has weighed up the hardship and inconvenience this refusal may cause and is satisfied that the decision is proportionate to the aims of maintaining an effective immigration control. The Secretary of State is therefore satisfied that the decision to refuse your client does not represent a breach of any party's Article 8 rights to a family life or private life."
The letter stated that Mrs Kaur therefore did not qualify within the Immigration Rules under either the "Parent Route" (Appendix FM, R-LTRPT 1.1) or the "Partner Route" (Appendix FM, R-LTRP 1.1). As to her private life, the letter indicated that the SSHD did not accept that Mrs Kaur had lost ties to her home country during the period of time she had been in the UK, and accordingly was not satisfied that she could meet the requirements of Rule 276ADE(iv) of the Immigration Rules. Mrs Kaur's application was therefore refused. Mrs Kaur had no right of appeal, as she did not have leave to enter or remain in the UK as at the date of her application.
"The evidence shows that your client is living in a diaspora of Indian nationals or ex-nationals so she continues to enjoy the culture and language of her own country here in the UK. Therefore, as your client retains her cultural and language ties to India, it is considered she would be able to return to India and adapt to living there with little disruption."
The legal framework:
"276ADE. 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 2.3 and S-LTR 3.1 in Appendix FM; and
ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or …
vi) is aged 18 years or above, has lived continuously in the UK for less that 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."
"Whilst each case turns on its own facts, circumstances relevant to the assessment of whether a person has ties to the country to which they would have to go if they were required to leave the United Kingdom must include, but are not limited to: the length of time a person has spent in the country to which he would have to go if he were required to leave the United Kingdom, the age that the person left that country, the exposure that person has had to the cultural norms of that country, whether that person speaks the language of the country, the extent of the family and friends that person has in the country to which he is being deported or removed and the quality of the relationships that person has with those friends and family members."
In the circumstances of that case, the Upper Tribunal was satisfied that the claimant (who had lived in this country since the age of 6) had no ties with his native Nigeria, concluding that he was "a stranger to the country, the people and the way of life".
"It plainly is not the sort of case with which the Upper Tribunal was concerned in Ogundimu or indeed in Green. Both of those were cases involving people who had come to this country as very young children and been granted leave to remain in the jurisdiction, who had no ties whatsoever with their country of origin, but who had then committed criminal offences and therefore appeared to be subject to compulsory deportation to that country, subject only to Article 8 considerations. But this is not a case in which it could possibly be concluded that Mrs Bailey would be a complete stranger to Uganda, however strong the ties that she has formed in the UK since coming to this country and overstaying her visa."
"At para 125 of its judgment in Ogundimu the Upper Tribunal was not seeking to put this 'rounded assessment' into a straitjacket, nor to create a checklist of matters which had to be present or which had to be addressed directly in a decision letter. It was simply indicating that if the relevant decision-maker did have regard to these considerations in making their 'rounded assessment', that would be lawful. In other words, the listed considerations could on no view be regarded as irrelevant considerations for the purposes of the assessment to be made, if a decision-maker chose to have regard to any of them. Depending on the particular circumstances of a specific case, one or all of them might be highly relevant."
"E-LTRP.1.1 To qualify for limited leave to remain as a partner all of the requirements of paragraphs E-LTRP.1.2. to 4.2. must be met.
E-LTRP.2.1. The applicant must not be in the UK in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1. applies."
Paragraph EX1 stated that –
"EX.1. This paragraph applies if …
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 with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK."
"… there may be individual cases of adults who have lived in the United Kingdom for less than 20 years and who do retain some ties to their country of origin, but in relation to whom the ties they have developed and the roots they have put down in the United Kingdom manifestly and strongly outweigh those ties, so that it would be disproportionate to remove them."
In such circumstances, he said, the SSHD would be obliged to consider granting leave to remain outside the Rules. I accept the submission of Mr O'Brien, on behalf of the SSHD, that it is certainly implicit (if not indeed explicit) in Sales J's observation that such a consideration is not possible under paragraph 276ADE(vi) itself.
"the term 'insurmountable obstacles' in provisions such as section EX.1 are not obstacles which are impossible to surmount: MF (Nigeria); they concern the practical possibilities of relocation. In the absence of such insurmountable obstacles, if removal is to be disproportionate it is necessary to show other non-standard and particular features demonstrating that removal will be unjustifiably harsh: Nagre."
"42. In Jeunesse, the Grand Chamber identified, consistently with earlier judgments of the court, a number of factors to be taken into account in assessing the proportionality under article 8 of the removal of non-settled migrants from a contracting state in which they have family members. Relevant factors were said to include the extent to which family life would effectively be ruptured, the extent of the ties in the contracting state, whether there were "insurmountable obstacles" in the way of the family living in the country of origin of the non-national concerned, and whether there were factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion: para 107.
43. It appears that the European court intends the words "insurmountable obstacles" to be understood in a practical and realistic sense, rather than as referring solely to obstacles which make it literally impossible for the family to live together in the country of origin of the non-national concerned. In some cases, the court has used other expressions which make that clearer … 'Insurmountable obstacles' is, however, the expression employed by the Grand Chamber; and the court's application of it indicates that it is a stringent test. In Jeunesse, for example, there were said to be no insurmountable obstacles to the relocation of the family to Suriname, although the children, the eldest of whom was at secondary school, were Dutch nationals who had lived there all their lives, had never visited Suriname, and would experience a degree of hardship if forced to move, and the applicant's partner was in full-time employment in the Netherlands: see paras 117 and 119."
"For the purposes of paragraph EX.1(b) 'insurmountable obstacles' means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner."
"45. By virtue of paragraph EX.1(b), "insurmountable obstacles" are treated as a requirement for the grant of leave under the Rules in cases to which that paragraph applies. Accordingly, interpreting the expression in the same sense as in the Strasbourg case law, leave to remain would not normally be granted in cases where an applicant for leave to remain under the partner route was in the UK in breach of immigration laws, unless the applicant or their partner would face very serious difficulties in continuing their family life together outside the UK, which could not be overcome or would entail very serious hardship. Even in a case in which such difficulties do not exist, however, leave to remain can nevertheless be granted outside the Rules in 'exceptional circumstances', in accordance with the Instructions: that is to say, 'in circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate'."
"49. In Jeunesse, the Grand Chamber said, consistently with earlier judgments of the court, that an important consideration when assessing the proportionality under article 8 of the removal of non-settled migrants from a contracting state in which they have family members, is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be "precarious". Where this is the case, the court said, "it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8 ": para 108.
50. Domestically, officials who are determining whether there are exceptional circumstances as defined in the Instructions, and whether leave to remain should be granted outside the Rules, are directed by the Instructions to consider all relevant factors, including whether the applicant '[formed] their relationship with their partner at a time when they had no immigration status or this was precarious'. They are instructed, at para 3.2.7d: 'Family life which involves the applicant putting down roots in the UK in the full knowledge that their stay here is unlawful or precarious, should be given less weight, when balanced against the factors weighing in favour of removal, than family life formed by a person lawfully present in the UK.' That instruction is consistent with the case law of the European court, such as its judgment in Jeunesse. As the instruction makes clear, 'precariousness' is not a preliminary hurdle to be overcome. Rather, the fact that the family life has been established by an applicant in the full knowledge that his stay in the UK was unlawful or precarious affects the weight to be attached to it in the balancing exercise.
51. Whether the applicant is in the UK unlawfully, or is entitled to remain in the UK only temporarily, however, the significance of this consideration depends on what the outcome of immigration control might otherwise be. For example, if an applicant would otherwise be automatically deported as a foreign criminal, then the weight of the public interest in his or her removal will generally be very considerable. If, on the other hand, an applicant—even if residing in the UK unlawfully—was otherwise certain to be granted leave to enter, at least if an application were made from outside the UK, then there might be no public interest in his or her removal. The point is illustrated by the decision in Chikwamba v Secretary of State for the Home Department."
52. It is also necessary to bear in mind that the cogency of the public interest in the removal of a person living in the UK unlawfully is liable to diminish—or, looking at the matter from the opposite perspective, the weight to be given to precarious family life is liable to increase—if there is a protracted delay in the enforcement of immigration control. …"
The judicial review proceedings:
i) erred in concluding that there were no insurmountable obstacles to Mrs Kaur and Mr Singh continuing their family and private life outside the UK;
ii) erred in concluding that Mrs Kaur did not meet the requirements of paragraph 276ADE(vi);
iii) failed properly to assess whether Mrs Kaur's circumstances were exceptional, such that she should have been granted leave to remain outside the Rules.
"Where an area of the Rules does not have an express mechanism, the approach in Nagre and Gulshan should be followed: ie, after applying the requirements of the Rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them."
"Neither the defendant's letter nor the Notice of Decision referred to the practical possibilities of the claimant and her husband relocating to India, by reference to their respective ages, employment, accommodation or financial means".
The Deputy Judge added that the supplementary letter of 25th April 2014 did not refer to insurmountable obstacles at all. She noted the submission on behalf of Mrs Kaur that Mr Singh's indefinite leave to remain had been granted in 2011 because of the strength of his connections in the UK and said that –
"Added to that is the fact that accompanying Mrs Kaur back to India on any basis other than a temporary one would – common sense seems to dictate – involve the practical consequence and reality that Mr Singh would have to leave his relatively well paid job in the United Kingdom and home here (which I note is owned by his employers) after 18 years in this country, and having recently been granted not just indefinite leave to remain but also British citizenship."
The Deputy Judge therefore found that the SSHD's decision that it was reasonable to expect Mrs Kaur and Mr Singh to continue their family life and private lives outside of the UK was flawed. She said that the SSHD had –
"… failed to give any reasons for her conclusion that there were no insurmountable obstacles to the claimant and her husband continuing their relationship were Mrs Kaur to return to India, and omitted to mention any consideration of factors relating to the practical possibilities of their relocation there."
"a curious omission bearing in mind that all Mrs Kaur's close family members - her husband, her adult daughter, her adult son and her grandson – are now in the United Kingdom."
The Deputy Judge said that the SSHD had failed to demonstrate that she had taken account of significant evidential matters which contradicted the view that Mrs Kaur would be able to return to India and adapt to living there with little disruption:
"The defendant's decision made no reference at all to the claimant's social or family ties in India; indeed, none were indicated by the claimant with the exception of her mother in law who, I understand, is now deceased. On the evidence this claimant's social and family ties are stronger in this country than in India."
The Respondent's Notice:
"In such a case, any interference would only be considered temporary (and therefore more likely to be proportionate). A person who claims that he will not qualify for entry clearance under the rules is not in any better position than a person who does qualify under the rules - he is still expected to apply for entry clearance in the usual way, as the entry clearance officer will consider article 8 claims in addition to applications under the rules."
"I am far from suggesting that the Secretary of State should routinely apply this policy in all but exceptional cases. Rather it seems to me that only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad."
Mrs Kaur understandably relies on that statement.
"is it really to be said that effective immigration control requires that the claimant and her child must first travel back (perhaps at the taxpayers' expense) to Zimbabwe, a country to which the enforced return of failed asylum seekers remained suspended for more than two years after the claimant's marriage and where conditions are 'harsh and unpalatable', and remain there for some months obtaining entry clearance, before finally she can return (at her own expense) to the United Kingdom to resume her family life which meantime will have been gravely disrupted? Surely one has only to ask the question to recognise the right answer."
"23 The significance of Chikwamba, however, is to make plain that, where the only matter weighing on the respondent's side of the balance is the public policy of requiring a person to apply under the rules from abroad, that legitimate objective will usually be outweighed by factors resting on the appellant's side of the balance.
24 Viewed correctly, the Chikwamba principle does not, accordingly, automatically trump anything on the State's side, such as a poor immigration history. Conversely, the principle cannot be simply "switched off" on mechanistic grounds, such as because children are not involved, or that (as here) the appellant is not seeking to remain with a spouse who is settled in the United Kingdom."
With every respect to the Upper Tribunal, I do not think that Lord Brown's words in Chikwamba justify the inclusion of the word "usually" in paragraph 23 of their decision.
The submissions summarised:
"56 The European court's use of the phrase "exceptional circumstances" in this context was considered by the Court of Appeal in MF (Nigeria) v Secretary of State for the Home Department  1 WLR 544 . Lord Dyson MR, giving the judgment of the court, said, at para 42:
"In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual's article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be 'exceptional') is required to outweigh the public interest in removal."
Cases are not, therefore, to be approached by searching for a unique or unusual feature, and in its absence rejecting the application without further examination. Rather, as Lord Dyson MR made clear, the test is one of proportionality. The reference to exceptional circumstances in the European case law means that, in cases involving precarious family life, "something very compelling … is required to outweigh the public interest", applying a proportionality test. The Court of Appeal went on to apply that approach to the interpretation of the Rules concerning the deportation of foreign criminals, where the same phrase appears; and their approach was approved by this court, in that context, in Ali.
57 That approach is also appropriate when a court or tribunal is considering whether a refusal of leave to remain is compatible with article 8 in the context of precarious family life. Ultimately, it has to decide whether the refusal is proportionate in the particular case before it, balancing the strength of the public interest in the removal of the person in question against the impact on private and family life. In doing so, it should give appropriate weight to the Secretary of State's policy, expressed in the Rules and the Instructions, that the public interest in immigration control can be outweighed, when considering an application for leave to remain brought by a person in the UK in breach of immigration laws, only where there are "insurmountable obstacles" or "exceptional circumstances" as defined. It must also consider all factors relevant to the specific case in question, including, where relevant, the matters discussed in paras 51–52 above. The critical issue will generally be whether, giving due weight to the strength of the public interest in the removal of the person in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control."
"If we were now to allow the appeal to proceed on this basis it would inevitably mean that the matter would have to be sent back to the tribunal for further findings of fact. Counsel differed in their views as to how lengthy and expensive that further hearing might be, but that there would have to be a further hearing is beyond doubt. It seems to me therefore that this case is within the well-known rule of practice that if a point is not taken in the court of trial, it cannot be taken in the appeal court unless that court is in possession of all the material necessary to enable it to dispose of the matter finally, without injustice to the other party, and without recourse to a further hearing below."
Lord Justice Richards:
Lady Justice Arden: