England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		24 June 2014

MR JUSTICE OUSELEY:

1. There are before the court a number of cases which, in one form or another and whether at permission or substantive stage, raise issues about the lawfulness of the private and family life provisions of the Immigration Rules, changed by HC 194, and which commenced with 276ADE in relation to private life and are embodied in Appendix FM in relation to family life.
2. One of those claims, involving three people of Bangladeshi nationality, is at the substantive stage. Proceedings were initiated in the Upper Tribunal. They were transferred by the Upper Tribunal to the Administrative Court because they raised this issue as to the vires of the Immigration Rules. The transfer order said that the proceedings as a whole were to be determined by a High Court Judge. There was obvious sense in that order because a High Court Judge has power to deal with all the issues sitting as a High Court Judge or, as necessary, a judge of the Upper Tribunal.
3. The matter was considered on paper by HHJ Blackett. HHJ Blackett granted permission, the scope of which may be for debate here after, saying that the issue of the compatibility of Paragraph 276ADE with Article 8 had not been addressed in the acknowledgment of service. He then said that the point should be considered by the High Court "before being passed back to the UT for a full appeal on the merits".
4. I add at this stage that a judge granting permission for a non-mandatory transfer point to be considered ought to consider very carefully whether the convenient disposal of the entire proceedings would not be better achieved by the whole being dealt with by a High Court Judge in the Administrative Court, who has dual jurisdictional competence should that be necessary. This is a case in which, as the order transferring the case from the Upper Tribunal to the Administrative Court made clear, was just such a case.
5. The Claimants in this substantive matter are, first, the man who entered the United Kingdom in 2003 with valid leave to enter expiring in 2009. The second is his partner -- his now wife -- whom he met in 2004 and married in 2005. Together they have a child born in the United Kingdom who is the third Claimant. They have overstayed their leave. An appeal to the First Tier Tribunal was dismissed. The details of that have not been provided to the court. On 26 February 2013, the Claimants made an application, as it is put in the grounds of claim, for leave to remain outside the Immigration Rules. That application was refused on 5 June 2013.
6. The Claimants contend in the grounds, though, as I have said, without providing any of the relevant supporting material and it may not have been provided to the Secretary of State either in their application, that their private life would be infringed by a refusal of leave to remain.
7. The grounds also challenge the application to them of Paragraph 276ADE on the grounds that it is ultra vires. HC 194 as a whole is said to be ultra vires. The language of the claim is to be found in more than 30 which have been brought on behalf of various clients by Universal Solicitors. The argument has had the benefit of the skill and refinement which Mr Biggs has brought to it, for which the court is grateful.
8. He has widened his argument, encompassing points made by other claimants whose permission application is before the court so that it goes beyond, but that is legitimate, the scope of the vires of Paragraph 276ADE to encompass more generally both the 276ADE private life paragraphs and Appendix FM family life.
9. Mr Biggs contends that the power to make Immigration Rules derives from the provisions of section 3(2) of the Immigration Act 1971:

"The Secretary of State shall from time to time... lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances..."

10. He contends that the provisions to which I am going to come are ultra vires that sub-section because they permit or require decisions to be made which may, depending on the circumstances of the case, breach Article 8 of the ECHR.
11. He further submits that the Rules are not to be read down pursuant to sections 3(1) and 3(2) of the Human Rights Act 1998 because they are not subordinate legislation within the meaning of that Act to which the section 3 interpretative duty applies.
12. Paragraph 276ADE sets out the requirements to be met by an applicant for leave to remain on the grounds of private life, by reference to age and various other grounds. BE deals with the grant of limited leave to remain on the grounds of private life and for a period not exceeding 30 months. 276CE says that where those requirements in Paragraph 276ADE are not met "limited leave to remain on the grounds of private life in the UK is to be refused". There are other provisions in 276DE, DF and DG which deal with the grant of indefinite leave to remain on the grounds of private life.
13. Appendix FM dealing with family members says in the paragraph dealing with its purpose, GEN.1.1, that the Appendix 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 to which Article 8(2) requires regard to be had.
14. There is no doubt that Appendix FM contains a wide variety of detailed provisions which cover many of the circumstances which would arise where a family member contends that a decision in relation to immigration status or removal would breach his or her family rights or the rights of other members of the family. It is plain that it is not an exhaustive code. It is difficult to imagine that one could have an exhaustive code unless it were expressed in the most general language, because the very variety of human and family circumstances which are brought into play in Article 8 cases prevents specificity on an exhaustive basis.
15. The Appendix does, however, as with 276CE, contain a number of passages in which it is said that if a requirement is not met, leave or entry clearance will be refused. Thus, GEN.2.2 states:

"If a person does not meet the requirements of paragraph GEN.2.1 entry will be refused."

Again, section D-ECP headed "Decision on application for entry clearance as a partner" contains D-ECP.1.2 which says:

"Where the applicant does not meet the requirements for entry clearance as a partner the application will be refused."

D-ECP.1.1 sets out what those requirements are.

16. In those two paragraphs are provisions which say that entry will be granted if the requirements are met and refused if not.
17. A similar pattern can be seen in relation to decisions on an application for indefinite leave to remain as a partner. Likewise in relation to limited leave to remain, there are rules in relation to a partner for immigration status. It provides that an appellant must not be in the UK in breach of a variety of requirements; the clear indication being that if a partner is in the UK in breach of those circumstances, they will fail in their application for limited leave.
18. At the core of Mr Biggs' argument is the contention that the Secretary of State has no power to lay before Parliament Immigration Rules which expressly and exhaustively preclude the Secretary of State under her practice of granting permission to avoid or obliging her to refuse permission where that would involve, a breach of Article 8.
19. Mr Biggs drew my attention to two cases in which the courts have considered what the outcome should be where it considered that Rules were expressed in too restrictive terms to accommodate the full requirements of Article 8.
20. The first was Zhang v Secretary of State for the Home Department [2013] EWHC 891 Admin which concerned the effect of Rules which, on their face, required somebody who sought an extension of leave, but in a different category from that which she had previously enjoyed, to depart the United Kingdom to make the application for leave where that would involve separation from her new husband for a period of about two months.
21. Turner J considered that requiring her to leave the United Kingdom for two months or so in order to make an application for entry clearance from abroad would be a disproportionate interference with her Article 8 rights. He did not, however, strike down the Rule which would require that. He found that it could not lawfully be applied to the Claimant in that case; see paragraph 81.
22. It follows, in my judgment, from that that he regarded the Rule as deficient in its express language, but not one which prevented him concluding that the Secretary of State's decision was unlawful, and not from the decision she ought to have reached.
23. Mr Biggs also referred me to the decision of Blake J in MM and Others v Secretary of State for the Home Department [2013] EWHC 1900 Admin MM involved a challenge to the minimum maintenance requirement of £18,600. Blake J was clearly satisfied that so specific but generally applied a limit was disproportionate in its application to British citizens and recognised refugees. That was the situation of the claimants in that case. He recognised that a variety of alterations to that defective general rule might make it Article 8 compliant.
24. He said in paragraph 153 that he did not consider:

"that the arrangements where the Entry Clearance Office is able to refer a difficult case to the Secretary of State for advice on the application of the exceptional circumstances policy is sufficient to render the decision making process as a whole lawful and compatible with the European Convention on Human Rights."

25. He said that the current versions of the Rules were intended to be exhaustive and conclusive statements of executive policy on all issues, including the extent to which the right to private and family life should be subject to rules of prior financial stability. The rare or exceptional circumstances criteria did not explain sufficiently what the criteria were. A bright line Rule in operation might involve a disproportionate decision. The terms of the policy themselves were so severe and inflexible as to be a disproportionate interference with an important right, to which the existence of an imprecise residual discretion to depart from the Rule would not suffice to achieve Convention compatibility. The clear terms of a Rule were not cured by a policy to permit departures, particularly where the sort of circumstances could not be discerned.
26. I do not agree with his observation about the FM Appendix being exhaustive. It plainly is not, because of the whole variety of circumstances which come into play which that Rule is plainly not intended to exclude from consideration.
27. But nonetheless, he did not strike down the financial provisions of the Rules or make a formal declaration. The decision itself made under the Rules was regarded as unlawful. That again clearly implies that the Secretary of State should have made a lawful decision, taking account of Article 8, which could only have been done pursuant to the exercise of the residual discretion which is contained in section 3(2): See the decision of the Supreme Court in Munir v Secretary of State for the Home Department [2012] UKSC 32 [2012] 1 WLR 2192; and in particular paragraph 44.
28. I was also referred to the decision in MF Nigeria v Secretary of State for the Home Department [2013] EWCA Civ 1192. This concerned a further aspect of the changes in HC 194 in particular, paragraph 398 relating to deportation. Paragraph 398 sets out the circumstances in which a criminal would be deported having made an Article 8 claim. The Secretary of State, in assessing that claim would consider whether two other paragraphs containing specific circumstances applied and if not, only "in exceptional circumstances" would the public interest in deportation be outweighed by other factors.
29. The court was faced with an argument that this, in effect, required the Secretary of State at times to act in a way incompatible with Article 8. There was a certain fluidity in the Secretary of State's position. However, the Secretary of State came to rest on the contention that the provision in the Rules which enabled exceptional circumstances to be weighed in the balance was intended to cover the circumstances in which there would be unjustifiable, or disproportionate, hardship in removal such as to lead to a violation of Article 8.
30. The words "exceptional circumstances" were not intended to bring back the language which had been rejected in Huang v Secretary of State for the Home Department [2007] UKHL 11 [2007] 2 AC 167 as seemingly creating an exceptionality test as opposed to an expectation of the rarity of the occasions in which the removal would be unjustifiably harsh. The court took the view that the Secretary of State in using that language was intending to do no more than, in perhaps less than desirable language, allow for other circumstances which Article 8 would require to be considered.
31. Paragraph 45 of that judgment is, however, important because it is in this paragraph that the Court of Appeal considered what the position would have been if their interpretation of exceptional circumstances had been wrong and it had instead contained an impermissibly restrictive approach to what Article 8 required.

Paragraph 45 says:

"Even if we were wrong about that [that is its interpretation of "exceptional circumstances"], it would be necessary to apply a proportionality test outside the new rules as was done by the UT. Either way, the result should be the same. In these circumstances, it is a sterile question whether this is required by the new rules or it is a requirement of the general law. What matters is that it is required to be carried out if paras 399 or 399A do not apply."

32. The court then considered whether there was a one or two stage test. It concluded that if the individual failed under the Rules in the application of paragraphs 399 or 399A, there was a second stage to the test which they thought was required by the new Rules, in which all other circumstances were looked at.
33. The Upper Tribunal had concluded that that second stage was required because the Rules did not reflect fully the Strasbourg jurisprudence, but, continued the Court of Appeal in paragraph 46:

"Either way, it is necessary to carry out a two stage process."

34. It is my judgment that that case makes it perfectly clear that even where a Rule is interpreted as being exhaustive or exclusionary, which is the highest that Mr Biggs can put his case here, and there is therefore no explicit allowance for "exceptional circumstances" or the like as the Court of Appeal found in that case, nonetheless the Secretary of State is bound to consider Article 8 in its fullness.
35. The last case to which I need to refer is the case of Nagre v Secretary of State for the Home Department [2013] EWCA 720 (Admin), a decision of Sales J which was referred to and approved by the Court of Appeal in MF (Nigeria). In this case, Sales J had to consider a number of aspects of Appendix FM as well as 276ADE.
36. The Secretary of State had issued instructions regarding the approach to be applied by her officials in deciding whether to grant leave to remain outside the Rules in the exercise of her residual discretion. Such leave should be granted in exceptional cases, but the guidance she provided on what that meant relevant also to these proceedings, was set out in paragraph 13 of Sales J's judgment. Exceptional did not mean unusual. Exceptional means circumstances in which refusal of leave to enter or remain would result in unjustifiably harsh consequences such that refusal would not be proportionate. That was likely to be very rare, but in determining whether there was such exceptional circumstances, the decision maker had to consider all relevant factors, some of which were then exemplified.
37. The judge said that exceptional circumstances as defined in that guidance equated such circumstances "with there being unjustifiable hardship involved in removal such that it would be disproportionate – i.e. would involve a breach of Article 8." There was no challenge to the lawfulness of that guidance.
38. The judge pointed out that it would not be possible for Rules expressly to provide in detail for every aspect of the circumstances which arise in an Article 8 claim. He recognised that the Secretary of State had a residual discretion to grant leave to enter or remain outside the Rules.
39. He too discussed what was meant by exceptional circumstances. He concluded in paragraphs 34 to 36 that where the new Rules did not fully dispose of a claim based on Article 8:

"the Secretary of State will be obliged to consider granting leave to remain outside the Rules. If she does not, where there is an appeal the First-Tier Tribunal will be obliged to consider allowing the appeal, and where there is no appeal, judicial review will lie.

35. The important points for present purposes are that there is full coverage of an individual's rights under Article 8 in all cases by a combination of the new rules and (so far as may be necessary) under the Secretary of State's residual discretion to grant leave to remain outside the Rules and that, consequent upon this feature of the overall legal framework, there is no legal requirement that the new rules themselves provide for leave to remain to be granted under the Rules in every case where Article 8 gives rise to a good claim for an individual to be allowed to remain. This had always been the position in relation to the operation of the regime of immigration control prior to the introduction of the new rules, and the introduction of the new rules has not changed these basic features of the regime.

36. Therefore, in my judgment, the Claimant's challenge to the lawfulness of the new rules fails. No matter how closely, or not, the new rules track the detailed application of Article 8 in individual cases, the immigration control regime as a whole (including the Secretary of State's residual discretion) fully accommodates the requirements of Article 8. The fact that the new rules do not do that in all cases by themselves does not render them unlawful."

40. I agree. The position, therefore, in my view, is this. The Immigration Rules before HC 194 used to make provision for the grant and refusal of leave to remain without specific regard to the ECHR. It was never thought that they were ultra vires. The obligation existed in section 6 not to make decisions incompatibly with the Convention. This was applied, albeit as a duty, through the exercise of the residual discretion in section 3(2) of the 1971 Act.
41. HC 194 represents an advance upon that position because it identifies where the Secretary of State will grant or refuse leave to remain under the Rules. The existence and content of the Rules, in the light in particular of their approval by Parliament, is relevant to the proportionality exercise within or outside the Rules.
42. The Rules cannot be read in isolation from the duty under the Human Rights Act, which is given effect in the way I have described. It is irrelevant that the Rules may not provide for every situation. They should not be read as if they were exhaustive or exclusionary merely because a number of the cases they cover are quite specific. There is always a residual discretion to cover those claims which, if not answered would lead to a breach of Article 8, by the exercise of the residual discretion. There is no warrant for reading the Rules in such a way as to exclude the exercise of the residual discretion in those circumstances.
43. Even if the Rules are seemingly exhaustive, or indeed, say in certain instances that leave to remain will not be granted unless certain conditions are satisfied, the decision whether to grant leave to remain is still subject to the duty under the Human Rights Act, in the exercise of the discretion that continues to exist outside the Rules not to breach those rights. The guidance clearly envisages that even where the Rules say leave will not be granted, the decision will have to be considered by way of exceptional circumstances, using that phrase in the manner in which it was interpreted by the Court of Appeal in MF (Nigeria) and by Sales J in Nagre.
44. The Secretary of State and then a Court on appeal or by way of judicial review will have to consider whether the decision outside the Rules was so disproportionate or harsh as to amount to an unjustifiable interference with Article 8 rights.
45. In any event, even if section 3(2) of the Human Rights Act does not specifically apply to Immigration Rules because they are not subordinate legislation, nonetheless it is a principle of interpretation that secondary legislation in the broad sense, that is to say including the statements of practice such as the Immigration Rules, should be construed so as to sustain their vires rather than to make them ultra vires, if that can sensibly be done.
46. There is no difference between requiring the Secretary of State to consider Article 8 claims outside the Rules if they are not met by the Rules themselves, which is the approach that was adopted by the Court of Appeal in MF (Nigeria) in paragraph 45, and requiring the Secretary of State to interpret the Rules as if language of "save where a contrary decision would be unjustifiably harsh or disproportionate" were incorporated as a general introduction to the Rules. The result would be the same. A debate about the difference is sterile.
47. In those circumstances, as I have said, the Rules have to be read along with the guidance as to the residual discretion. Reading them in that way, there is no scope for there to be an ultra vires argument. The Rules, in my judgment, in this case are not ultra vires and this claim fails on that ground.
48. Mr Saini in the case of Ghani takes a further point on the permission application. He contends that the immigration changes in HC 194 were unlawful because they did not comply with the procedural requirements of section 3(2) the 1971 Act. That Act says:

"If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying... then the Secretary of State shall as soon as may be make such changes... in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution..."

49. The relevant timetable for these purposes is that the changes were laid before Parliament on 13 June 2012. They came into force on 9 July 2012, which, for present purposes, is clearly less than forty days later. Mr Saini says that they did not, therefore, have the full forty days for scrutiny which legislation required and, indeed, they were never considered by the House of Lords in a debate.
50. This is misconceived. The Rules were laid before Parliament. There was no negative resolution passed within forty days. The requirement of the statute is clearly satisfied. But it goes further than that. There was a positive resolution of the House of Commons on 19 June 2012. It does not matter that that was not made on the fortieth day. What matters is that there was no negative resolution within forty days. There is no requirement of the statute that that negative resolution be considered towards the end of the forty day period such that a resolution earlier than that is somehow ineffective, particularly when it is positive.
51. It is irrelevant that the House of Lords did not debate the changes until October. The fact that they then approved them is also neither here nor there for the purposes of vires, though it is relevant to the weight to be given to them. There was no negative resolution by the House of Lords within the period of forty days. Had there been a negative resolution of either House after the Rules had come into force but within the forty days, the changes would not have continued in force. There would have to have been a further period of forty days after that resolution in which changes had to be made, but that simply is not the position that has arisen in this case.
52. I would also point out that it is not for this court to rule upon whether a period that Parliament has had to scrutinise this sort of statement is adequate for it or not. That is entirely a matter for Parliament's judgment. This court is only concerned with the simple fact of whether there was a period of forty days, after the statement was laid before Parliament, in which a negative resolution was passed. No negative resolution was passed. That is the end of that point. I refuse permission to proceed with it.
53. I will now hear counsel on the implications of that and, first, what happens in the case of Amin.
54. MR FORTT: My Lord, I am prepared to hear the remainder of the claim, but I understand that my learned friend will say that he's somewhat prejudiced because of the order which was made on the papers that the remainder of the claim should be remitted to the Upper Tribunal for a determination and he isn't ready to address it. So I don't think I can take that point any further forward, unfortunately.
55. MR JUSTICE OUSELEY: No.
56. MR FORTT: In relation to this aspect of the claim, given that this has required a separate hearing, I will ask for costs in relation to the substantive claim that we've dealt with today. If my Lord is prepared to, I would apply for them to be summarily assessed today.
57. MR JUSTICE OUSELEY: Yes. I have somewhere a statement of costs. Mr Biggs.
58. MR BIGGS: Yes, my Lord. My position is that it would not be right to deal with the remainder of the claim today. I appreciate that's unsatisfactory, broadly speaking, but my instructions were limited to dealing with the ultra vires argument. There's no written argument, for example, dealing with the claim in its entirety. There are other aspects that would need to be looked at and would need to benefit from written argument. In submission, to deprive my clients of the benefit of that and, perhaps, the benefit of a further bundle of documents focused on the other aspects of claim, in my submission, would not be fair.
59. It's also right to point out that both parties were labouring under the impression that the court would only be dealing with the ultra vires point today because of the terms of the order that was made. I echo my learned friend's sentiments. It's unfortunate. In an ideal world, I would very much have wanted to deal with matters today.
60. MR JUSTICE OUSELEY: Yes.
61. MR BIGGS: In terms of costs, I don't resist my learned friend's application. He has succeeded on the substantive matter today and it seems to me that costs should follow the event on that issue.
62. MR JUSTICE OUSELEY: Are you legally aided?
63. MR BIGGS: My Lord?
64. MR JUSTICE OUSELEY: Are you legally aided?
65. MR BIGGS: I'm not, no.
66. MR JUSTICE OUSELEY: It is unfortunate, but I think in view of the order of HHJ Blackett it would be wrong, without there having been rather greater notice to the Claimant, to proceed with the balance of the claim.
67. As I have said, I do hope that judges who grant permission on a non-transfer point will not make an order of that sort without giving it very careful thought, because even if no time at all is saved through it being one judge, it avoids the case joining a queue twice.
68. I express hope that the Upper Tribunal will give this case, now that that point has gone, priority to avoid it having to wait in the queue, both from the point of view of the Claimants and from the point of view of the Defendant, longer than is absolutely essential.
69. There will be an order for the costs in favour of the Defendant, which, if there is no objection, I will summarily assess once I've got hold of the schedule of costs which I have been provided with. Can you remind me, while I look, how much? Here we are. £4,530, is that it?
70. MR FORTT: Yes.
71. MR JUSTICE OUSELEY: Mr Biggs?
72. MR BIGGS: Well, my Lord, I've just been passed the costs schedule. I don't know whether it's been served, but I won't take any procedural points. No, my Lord. I can't take any objection to those costs.
73. MR JUSTICE OUSELEY: No. There's nothing on the face of it which to me either comes across as eyebrow raising. So there will be an order for costs summarily assessed in the sum of £4,530.