QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of
|- and -
|Secretary of State for the Home Department
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Ms Lisa Giovannetti QC (instructed by Treasury Solicitor) for the Defendant
Hearing date: 19/3/13
Crown Copyright ©
Mr Justice Sales :
The new rules in Section E-LTRP, Section EX.1 and Rules 276ADE to 276CE
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"This was not considered conducive to clear, consistent and transparent decision-making, which, outside of exceptional circumstances, should properly reflect the Immigration Rules set by the Secretary of State and approved by Parliament. It also led, under the existing policy, to the perverse outcome that many in-country applicants (around 9,500 in 2010) who did not meet the requirements of the Immigration Rules but who could establish an Article 8-based claim to remain in the UK, received in some respects a better outcome (Discretionary Leave with recourse to public funds) than those applicants who met the requirements of the rules, who were granted leave to remain under the rules without such recourse."
Requirements to be met by an applicant for leave to remain on the grounds of private life
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 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.
Leave to remain on the grounds of private life in the UK
276BE. Limited leave to remain on the grounds of private life in the UK may be granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE are met. Such leave shall be given subject to such conditions as the Secretary of State deems appropriate.
Refusal of limited leave to remain on the grounds of private life in the UK
276CE. Limited leave to remain on the grounds of private life in the UK is to be refused if the Secretary of State is not satisfied that the requirements in paragraph 276ADE are met."
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. …
Section E-LTRP: Eligibility for limited leave to remain as a partner
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.1.2. The applicant's partner must be-
(a) a British Citizen in the UK;
(b) present and settled in the UK; or
(c) in the UK with refugee leave or as a person with humanitarian protection.
E-LTRP.1.3. The applicant must be aged 18 or over at the date of application.
E-LTRP.1.4. The partner must be aged 18 or over at the date of application.
E-LTRP.1.5. The applicant and their partner must not be within the prohibited degree of relationship.
E-LTRP.1.6. The applicant and their partner must have met in person.
E-LTRP.1.7. The relationship between the applicant and their partner must be genuine and subsisting.
E-LTRP.1.8. If the applicant and partner are married or in a civil partnership it must be a valid marriage or civil partnership, as specified.
E-LTRP.1.9. Any previous relationship of the applicant or their partner must have broken down permanently, unless it is a relationship which falls within paragraph 278(i) of these Rules.
E-LTRP.1.10. The applicant and their partner must intend to live together permanently in the UK.
E-LTRP.1.11. If the applicant is in the UK with leave as a fiancé(e) or proposed civil partner there must be good reason why the marriage or civil partnership did not take place during that period of leave and evidence that it will take place within the next 6 months.
Immigration status requirements
E-LTRP.2.1. The applicant must not be in the UK-
(a) as a visitor;
(b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner; or
(c) on temporary admission.
E-LTRP.2.2. 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. …
Section EX: Exception
EX.1. 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; and
(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."
"3.2.7d Exceptional circumstances
Where the applicant does not meet the requirements of the rules refusal of the application will normally be appropriate. However, leave can be granted outside the rules where exceptional circumstances apply. Consideration of exceptional circumstances applies to applications for leave to remain and leave to enter. "Exceptional" does not mean "unusual" or "unique". Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin. Instead, "exceptional" means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. That is likely to be the case only very rarely.
In determining whether there are exceptional circumstances, the decision maker must consider all relevant factors, such as:
(a) The circumstances around the applicant's entry to the UK and the proportion of the time they have been in the UK legally as opposed to illegally. Did they form their relationship with their partner at a time when they had no immigration status or this was precarious? Family life which involves the application 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.
(b) Cumulative factors should be considered. For example, where the applicant has family members in the UK but their family life does not provide a basis for stay and they have a significant private life in the UK. Although under the rules family life and private life are considered separately, when considering whether there are exceptional circumstances private and family life can be taken into account.
If the applicant falls to be granted because exceptional circumstances apply in their case, they may be granted leave outside the rules for a period of 30 months and on a 10 year route to settlement."
The facts in the Claimant's case
"12. Your client and his partner do not have children together and no evidence was provided to suggest otherwise. Therefore paragraph EX.1(a) does not apply.
13. It is accepted that your client is in a relationship with his partner, Angela Palmer, however, no evidence has been provided to suggest that there are any insurmountable obstacles to family life being continued overseas. Your client was served with removal papers on 8 November 2007 and was placed on reporting restrictions. However, your client did not attend his appointments and subsequently absconded. Your client and his partner entered into a relationship in February 2008, after your client had been served with removal papers, therefore knowing his immigration status was precarious and that he may not be allowed to stay in the United Kingdom.
14. Your client's partner has stated it would be difficult for her to relocate to India with your client as she is currently settled in the UK, but no evidence has been provided to suggest this is anything other than a preference. Your client's partner is employed in the UK, however, it would not be unreasonable to expect her to be able to secure appropriate employment overseas. Having considered the information provided, it is not accepted that your client and his partner would face significant hardship in relocating to India. …"
"16. Your client is 35 years old and entered the UK aged 28. As your client is over the age of 18, but not between the ages of 18 and 25 years, has not spent at least 20 years in the UK, he does not meet the requirements stated above. Your client has spent the majority of his life in India and he would be able to adjust back to life in India reasonably quickly. He has provided no evidence to substantiate his claim that he has no ties, including social, cultural or family, with India. In view of the fact that your client had spent the majority of his life in India, not the UK, it is reasonable to expect that such ties with his home country would have remained, in the absence of evidence to the contrary.
17. In view of the above the Secretary of State is not satisfied that your client meets the requirements of Paragraph  ADE (iii)-(vi) as stated above."
"18. The Secretary of State has also considered whether there are any exceptional circumstances in your client's case which would make a refusal unjustifiably harsh, and which might make a grant of leave outside the rules appropriate. Careful consideration has been given to the information provided on your client's behalf, but he has not raised any exceptional circumstances and the Secretary of State is not satisfied that the exercise of discretion is warranted in this case.
19. For the reasons given above any interference with your client's private and family life would be proportionate and within the permissible aims of Article 8(2) and pursuant to the maintenance of an effective immigration control."
(a) The challenges to Section EX.1 and paragraph 276ADE
"40. We accordingly further endorse the Upper Tribunal's observation in [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."
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) In relation to Section EX.1(b), for example, there may be individual cases in which, for some reason, there are particularly compelling reasons arising from the specific circumstances why leave to remain should be granted under Article 8, even though there may not be insurmountable barriers to family life continuing outside the United Kingdom, in the applicant's country of origin; and
ii) In relation to paragraph 276ADE, for example, 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. (On the facts of the Claimant's case, as determined by the Secretary of State, he does not have an arguable case of this kind available to him).
"The Court reiterates that in the context of both positive and negative obligations the State must strike a fair balance between the competing interests of the individual and of the community as a whole. However, in both contexts the State enjoys a certain margin of appreciation. Moreover, Art.8 does not entail a general obligation for a state to respect immigrants' choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a state's obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the contracting state, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (e.g. a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion. Another important consideration will also be 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. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Art.8 ."
"Thus the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires. "
"19. The words which I have italicized ["and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal"] lay to rest an issue which has troubled decision-makers and advocates at least since the decision of this court in R (Mahmood) v Home Secretary  1 WLR 840, because of the use by Lord Phillips MR, in the course of giving the second judgment, of the phrase "insurmountable obstacles" in the context of art. 8. This court sought, in the later case of LM (DRC) v Home Secretary  EWCA Civ 325 to explain the contextual significance of the phrase. Ms Busch adopts what I said in §11-14 of my judgment in that case. But for the present, at least, the last word on the subject has now been said in EB (Kosovo). While it is of course possible that the facts of any one case may disclose an insurmountable obstacle to removal, the inquiry into proportionality is not a search for such an obstacle and does not end with its elimination. It is a balanced judgment of what can reasonably be expected in the light of all the material facts. …
"24. EB (Kosovo) now confirms that the material question in gauging the proportionality of a removal or deportation which will or may break up a family unless the family itself decamps is not whether there is an insuperable obstacle to this happening but whether it is reasonable to expect the family to leave with the appellant. It is to be hoped that reliance on what was a misreading of Mahmood, as this court had already explained in LM (DRC)  EWCA Civ 325 (and as Collins J had previously done in Bakir  UKIAT 01176, § 9), will now cease."
(b) The challenge to the decision in the Claimant's individual case