QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
|THE QUEEN ON THE APPLICATION OF GANESABALAN||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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Miss C Rowlands (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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THE DEPUTY JUDGE:
(1) The claimant, a citizen of Sri Lanka, had come to the United Kingdom nearly 12 years previously in October 2000 aged 24. He had then been present lawfully with leave to remain as a student for some nine and a half years until April 2010. He had subsequently and unsuccessfully sought to regularise his position, and had then remained in the United Kingdom without leave and invoked Article 8.
(2) The claimant had met his wife in the United Kingdom in 2002, after which they had built up a strong relationship eventually resulting in their marriage in March 2012.
(3) The claimant's wife, now aged 30, was a British citizen who had lived in the United Kingdom for more than 16 years from the age of 14, was settled with a stable job and able to maintain the couple. The clear implication of the letter of representations was the submission that she could not reasonably be expected to follow the claimant were he removed.
(4) Further considerations were emphasised which included the claimant's good character, an English language qualification, a 'Life in the UK' test certificate, and reference to the case of Chikwamba v Secretary of State for the Home Department  UKHL 40, to which I will return at the end of this judgment.
(1) The claimant could not meet the criteria in Immigration Rule 284, which is concerned with extension of stay as a spouse of a person present and settled in the UK.
(2) So far as private life and family life were concerned, the relevant Immigrations Rules were, respectively, Rule 276ADE and Appendix FM.
(3) So far as concerned private life and Rule 276ADE, the claimant had not lived continuously in the United Kingdom for the requisite 20 years, nor for a period of less than 20 years accompanied by an absence of relevant ties with Sri Lanka (which absence of ties the Secretary of State decided he had not demonstrated).
(4) As regards family life and Appendix FM, the claimant was present in breach of immigration laws, needed to show that he was in a genuine and subsisting relationship with a partner of a British citizen in the United Kingdom but also that insurmountable obstacles arose to their family life continuing outside the United Kingdom (which insurmountable obstacles the Secretary of State decided he had not demonstrated). The relevant paragraphs of Appendix FM in play in this case were as follows: R-LTRP.1.1, E-LTRP.2.2 and EX.1.
(5) There was no discretion, whether based on exceptional circumstances or otherwise, arising under the terms of the relevant and applicable Immigration Rules.
The factual premise
Discussion of the law
(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.
(i) Unlike other Rules which have a built-in discretion based on exceptional circumstances, Appendix FM and Rule 276ADE are not a "complete code" so far as Article 8 compatibility is concerned.
(ii) These Immigration Rules operate alongside important guidance which is itself part of the relevant overall code and which guidance recognises the discretion outside the Rules and the duty on the Secretary of State to consider exercising that discretion in the individual case.
"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.
'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 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.
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."
(1) The first is that the guidance describes in mandatory terms a duty to consider all relevant factors in order to make a determination as to whether there are exceptional circumstances. I take that from the phrase "in determining whether there are exceptional circumstances, the decision maker must consider all relevant factors". So far as exceptional circumstances are concerned, the guidance makes clear that it is describing "circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate". In other words, the ultimate focus is on the question of whether the refusal would be disproportionate, by reference to the consequences.
(2) The second point which, in my judgment, requires to be emphasised is that the guidance spells out illustrative factors which are recognised as relevant to the exercise of discretion. They include the cumulative factors relating to family life and private life. They include questions which relate to immigration status and duration of presence and the combination of the two. That last point is reflected in the phrase "the proportion of the time they have been in the UK legally as opposed to illegally".
(iii) The duty to consider exercising the discretion is recognised in the authorities.
" ... if they come across a case falling outside the new rules ... nonetheless have to consider whether it is a case where, on the particular facts, there would be a breach of Article 8 rights if the application for leave to remain were refused".
At paragraph 34 in Nagre:
"In cases where consideration of the new rules does 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."
(iv) The discretion, described variously by reference to 'exceptional circumstances' or 'unjustifiable hardship', involves the Secretary of State applying a proportionality test and asking whether removal would be disproportionate by reference to Article 8 standards.
44. ... the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence ...
45. ... necessary to apply a proportionality test ... "
In MM (Lebanon) (paragraph 130) the Court of Appeal endorsed that position and at paragraph 134 described "the proportionality test ... guided by the Huang tests and UK and Strasbourg case law".
(v) There is no prior threshold which dictates whether the exercise of discretion should be considered; rather the nature of the assessment and the reasoning which are called for are informed by threshold considerations, those threshold circumstances include (a) whether an arguable basis for the exercise of the discretion has been put forward; (b) whether the relevant factors have already been assessed; (c) whether a repeat evaluation is unnecessary.
"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."
Sales J continued at paragraph 30, describing a "slight modification" to a proposition which had been stated previously by the Upper Tribunal. Their proposition was this:
"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."
In my judgment, the phrase "make an assessment" (which I have emphasised) is of significance. What Sales J described as the "slight modification" was that again, having applied the Rules and found ineligibility, if:
" .. the relevant official ... 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."
In my judgment, that passage is plainly addressing the question whether there needs to be a further "assessment" and, in particular, a "full separate consideration" of Article 8. Further, in my judgment, it is clear from that passage that it is for the Secretary of State necessarily to consider the question of exceptional circumstances and judge what evaluation is necessary and appropriate. That, in my judgment, is encapsulated by the relevant official "consider[ing]" whether "it is clear that the circumstances under the Rules has fully addressed any family life or private life issues arising under Article 8". That is a question which arises once the Rules have been applied and it calls for a conclusion. This analysis, in my judgment, is also clearly what is in mind from the phrase "it would be sufficient simply to say that". This indicates the decision maker, having asked whether the position is clear from the perspective of family life or private life issues arising under Article 8, giving reasons explaining that that question has been addressed and that conclusion has been reached.
" ... it is important that officials applying the residual exceptional circumstances policy should be vigilant to avoid a tick box mentality and should bear the policy guidance in mind seeking to stand back after working through the analysis required so as to formulate in an overall manner a view as to whether there might be a good arguable case of disproportionality if leave to remain was not granted."
That passage, in my judgment, very clearly recognises that, having addressed the Immigration Rules and reached conclusions on their application, there is a duty by reference to the guidance on the decision maker then to step back and formulate a view. The need for a view is not triggered by there being some good arguable basis. Rather, as Green J there explains, one of the questions – indeed the first question – to be considered in formulating that view, is the question whether there might be a good arguable case.
(vi) Features, aspects of features and combinations of features already addressed, whether in full or in part, by reference to the Immigration Rules do not in principle become irrelevant to the discretion and the evaluation of proportionality for Article 8 purposes.
MISS ANZANI: My Lord, there is a costs application on behalf of the claimant. I have not been provided with a costs schedule by my instructing solicitor.
THE DEPUTY JUDGE: Could we just deal with remedy first. What is the remedy that is appropriate in the light of my judgment?
MISS ANZANI: My Lord, the appropriate remedy, in my submission, would be to quash the decision of 15 February.
THE DEPUTY JUDGE: So that is remedy. And you are applying for your costs?
MISS ANZANI: Yes.
THE DEPUTY JUDGE: Miss Rowlands?
MISS ROWLANDS: Well, not only has my learned friend not had a schedule of costs, neither have we. This is a fundamental failing. It is the kind of failure that was addressed in Mitchell v News Group Newspapers and, in my submission, my Lord, the outcome of that must be that there is no basis upon which you can order costs against the Secretary of State. This is not a trivial default, particularly having regard to the conduct of the claimant, which I set out in full to your Lordship yesterday. Basically, no schedule, no costs, is my submission.
THE DEPUTY JUDGE: Do you have a fallback position that they should not be entitled to the costs of their skeleton?
MISS ROWLANDS: The whole costs of yesterday and today, would be my submissions.
THE DEPUTY JUDGE: That is not what I asked you, though. I am asking: do you have a fallback position that they should not have the costs of the skeleton?
MISS ROWLANDS: My fallback position would be to rule out all the costs of yesterday and today because those instructing me and myself were put to such great inconvenience --
THE DEPUTY JUDGE: I am against you on the question of costs. The claimant has succeeded in this claim for judicial review. The question of costs being wasted because of an adjournment did not arise because the matter was resolved yesterday. I see no basis for depriving the claimant of her costs. There are two points, in my judgment, that arise. The first is the one relied on by Miss Rowlands. She submits the absence of a costs schedule should be fatal to a costs order being made. In my judgment, that is not right in principle but in any event would not be the appropriate course as a matter of discretion. The preparation of the bundles and the skeleton and so forth, as I have already said, would have been highly relevant to costs had there needed to be an adjournment. The other point is the one I have raised, which is whether it would be appropriate to deprive the claimant of the costs of the skeleton argument in the circumstances that it was lodged late. Miss Rowlands has not adopted that as her fallback position but in any event, in my judgment, in all of the circumstances it would not be appropriate to deprive the claimants of the costs of the skeleton argument. The usual order will follow. The claimant will have the costs of this judicial review claim.
Anything else, Miss Rowlands?
MISS ROWLANDS: I would ask that the claimant must not have the costs of the affidavits that you ruled out yesterday and that the claimant must pay the costs of the detailed assessment which is necessitated by their default.
THE DEPUTY JUDGE: Miss Anzani, I cannot see any basis for giving you the costs of the affidavits.
MISS ANZANI: No, my Lord.
THE DEPUTY JUDGE: Albeit I have given my ruling, Miss Rowlands has now raised that and I think it is appropriate for me to reopen my ruling to that extent and that is what I am going to do. The claimant's costs shall exclude the costs of the preparation of the affidavits. I am not prepared to exclude the costs of the assessment. The order is that the claimant is to have the costs, to be the subject of detailed assessment if not agreed.
Is this is a legal aid case, Miss Anzani?
MISS ANZANI: It is not, my Lord.
THE DEPUTY JUDGE: Anything else?
MISS ROWLANDS: My Lord, I would seek permission to appeal. First of all on that costs aspect of it. I cited to you Mitchell v News Group Newspapers. You are bound by that. That is you have given no reasons for diverging from the judgment of the Court of Appeal in that and, my Lord, again the reason for giving the claimant carte blanche to fail to comply with the court orders, drive a coach and horses through them as far as that is concerned, and that the Secretary of State then has to go through the costs of detailed assessment with the claimant having failed again to supply a schedule of costs that would have obviated the need for that assessment.
I do also seek permission to appeal in relation to your judgment as a whole. First of all, on the question of whether the claimant has to show an arguable case that there is something that is not catered for within the Rules that should be considered before that assessment becomes necessary. My Lord, I do not propose to repeat the unsuccessful submissions that I have already made but I do say that this is a case that will affect a significant number of other cases that are in letters in the same format. So it would be of assistance if the Court of Appeal would give guidance on that aspect. Secondly, in relation to your judgment on whether it would have been inevitable, having regard to the high threshold that has to be met, that the decision would be the same again.
THE DEPUTY JUDGE: Can you just help me with the binding authority that you are saying I have disregarded. Where am I looking in the White Book?
MISS ROWLANDS: My Lord, I am afraid I do not have the White Book with me. If you give me a second I will find it on BAILII. It is Mitchell v News Group Newspapers  EWCA Civ 1537. It is the judgment of the Master of the Rolls, Richards LJ and Elias LJ. This was a case where it was related to the libel case brought against the Sun newspaper.
THE DEPUTY JUDGE: You are going to show me authority for the fact that it is wrong in principle to give any costs to a party who has not produced a schedule. I need to see that.
MISS ROWLANDS: It is a question of relief and sanctions. So the Rule provides that the claimant must serve a schedule of costs. We served ours. So, not having done so, she must show you why she has not done that, why there is good reason for that.
THE DEPUTY JUDGE: I just want to see the authority that you say binds me and is inconsistent with the order I have made because that is the basis of your application for permission. You are telling me there the authority that a claimant is not entitled to costs if he or she has failed to lodge a schedule of costs.
MISS ROWLANDS: My Lord, that is what happened in Mitchell. The court ordered a costs budget hearing, the claimant failed to provide the costs budget in accordance with that and in fact it was there before the hearing but it was slightly late and the ruling of the Court of Appeal on that was that, having regard to the need to comply with the Rules, Orders and Practice Directions, there should be no relief from the sanction provided for and that the outcome was that the claimant was limited to such costs as amounted to court fees.
THE DEPUTY JUDGE: On the application for permission to appeal, I refuse the application. I have not been shown or had described to me any authority for the proposition that the absence of a costs schedule, and in circumstances where there was no order of the court, of itself in principle denies the claimant any entitlement to any costs of the proceedings, which was Miss Rowlands's submission. Her description of the authority that she intended to cite – and she has not been able to point me to any passage in the White Book – does not not on the face of what she has said establish that proposition. Therefore, in my judgment, there is not any arguable basis, either in principle or as a matter of the appropriateness of the exercise of my discretion, to give permission to appeal so far as costs are concerned.
So far as the judgment as a whole is concerned and what the Secretary of State has to do in addressing the discretion and the relevance of the threshold questions, in my judgment the position is clear on the basis of a line of previous authority and there is no proper basis for me to grant permission to appeal for a further such authority. In my judgment, the arguments on appeal have no realistic prospect of success and it is a matter for the Secretary of State, of course, if she wishes to invite the Court of Appeal to take a different view.
I have to fill out the form, which you will see anyway. It says: costs, no authority shown why wrong in principle, exercise of discretion and judgment. Legal merits, analysis based on clear line of case law and application to particular facts, no realistic prospect of success.