Neutral Citation Number: [2014] EWHC 2712 (Admin)
CO/4857/2013 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 16 July 2014
 
B e f o r e: 

MICHAEL FORDHAM QC
(Sitting as a Deputy High Court Judge) 
- - - - - - - - - - - - - - - -
Between: 
THE QUEEN ON THE APPLICATION OF GANESABALAN 
Claimant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant 
- - - - - - - - - - - - - - - -
Computer‑Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -

Miss S Anzani (instructed by Naglaw Solicitors) appeared on behalf of the Claimant 
 
Miss C Rowlands (instructed by the Treasury Solicitor) appeared on behalf of the Defendant 
- - - - - - - - - - - - - - - -
J U D G M E N T
THE DEPUTY JUDGE:

INTRODUCTION
1.	This is a claim for judicial review brought with the permission of Hickinbottom J.  At issue is the lawfulness of a revised decision dated 15 February 2013 accompanied by a notice of decision by which the claimant was refused leave to remain in the United Kingdom. This is another case involving what has been described in the authorities as the “two‑part test” or “two‑stage test” so far as private life and family life under Article 8 of the European Convention on Human Rights and the relevant Immigration Rules and guidance are concerned. Six authorities relating to that topic were cited to me. In date order they were R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin); MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 [2014] 1 WLR 544; Ahmed v Secretary of State for the Home Department [2014] EWHC 300 (Admin); Halleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558, R (Amin) v Secretary of State for the Home Department [2014] EWHC 2322 (Admin); and R (MM(Lebanon)) v Secretary of State for the Home Department [2014] EWCA Civ 985.

2.	By a letter dated 29 June 2012, the claimant's solicitors had asked the Secretary of State to "exceptionally consider this application and grant our client an extension of stay in the UK as the partner of a person present and settled in the UK". That letter of representations, read with the accompanying form and materials, emphasised private life and family life and the standard of proportionality under ECHR Article 8.  In particular, the following features of the claimant's position were put forward.

(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 [2008] UKHL 40, to which I will return at the end of this judgment.

3.	The position under the Immigration Rules was as follows. The claimant was assessed by the Secretary of State as being ineligible on the application of the requirements of the Rules. There is no challenge in this claim to the lawfulness or reasonableness of that conclusion.
(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.
4.	The essence of the case is as follows. Miss Anzani, for the claimant, submits that the decision letter contains an error of law and should be quashed for failure to address the legally-required question as to whether exceptional circumstances justified leave to remain outside the Rules in order to satisfy Article 8.  She submits that the two‑stage test was applicable and that only the first stage was addressed.

5.	Miss Rowlands, for the Secretary of State, responds in essence that, in the absence of anything ‘exceptional’ or ‘compelling’ in this case: no second stage arose, and nothing further needed to be addressed; but, in any event, there is no basis for granting judicial review or any remedy because the decision would inevitably have been the same.  As Miss Rowlands put it, it is necessary to ask whether any ‘exceptional’ or ‘compelling’ circumstances were identified by the claimant, which are not ‘catered for by the Rules’, which the Secretary of State failed to consider, and which would lead the court to quash the decision so that she can now consider them.

The factual premise 
6.	The starting point is to ask whether the claimant has established that the decision letter in this case only involved the application of the terms of the relevant Immigration Rules.  Miss Anzani submits that that is the nature of the decision letter, and I accept that submission.

7.	So far as family life is concerned, the notice of decision expressly recorded that "consideration has been given to your family life under EX.1 of Appendix FM".  So far as reference to Article 8 is concerned, the decision notice stated expressly, in referring to private life, that "Article 8 ... from 9 July 2012 falls under paragraph 276ADE of the Rules". Having addressed the position under the Rules, the notice continued: "In view of the above, the Secretary of State is not satisfied that you are able to meet the requirements of paragraph 276ADE, as stated above".  The notice continued: "Your application for leave to remain in the United Kingdom has been refused".  Absent from the notice was any further reference to any further question or consideration. The covering letter of 15 February 2013 stated: "The decision to refuse was entirely appropriate and correct as your client does not meet the requirements of the Rules, including EX.1".

8.	In those circumstances, in my judgment, the factual premise on which the claim rests is made out. This case therefore contrasts with Nagre (see paragraphs 23 and 51). There, the Secretary of State had written a revised decision letter of 18 March 2013 which expressly recorded that the Secretary of State had “also considered whether there are any exceptional circumstances in your client’s case which would make a refusal unjustifiably harsh and might make a grant of leave outside the Rules appropriate”.  That letter went on to explain that: “Careful consideration has been given to the information provided” but the conclusion had been reached that it “had not raised any exceptional circumstances and the Secretary of State is not satisfied that the exercise of discretion is warranted in this case”. Also contrasting with the present case is Ahmed (see paragraphs 12 and 38 to 39).  There too, alongside the evaluation of facts and circumstances relevant to the Immigration Rules, there were in an August 2013 decision passages referable to the question of whether any exceptional circumstances arose. Similarly, in Halleemudeen (at paragraph 20) the court recorded that the decision letter had made express reference as follows: "It is not considered that your particular circumstances would justify a grant of leave outside the Immigration Rules".

Discussion of the law 
9.	For present purposes and as relevant to the present case the correct position in law, in my judgment, is as follows.  Were a person seeks leave to remain, relying on private life or family life or both, and relying on Article 8, and where the claim fails at the first stage by reference to the applicable Immigration Rules (Appendix FM and Rule 276ADE):
(1)	There is always a “second stage” in which the Secretary of State must consider the exercise of discretion outside the Rules and must be in a position to demonstrate that she has done so.

(2)	The extent of that consideration and the extent of the reasoning called for will depend on the nature and circumstances of the individual case.

(3)	In a case in which the consideration or reasoning is legally inadequate, and leaving aside cases in which there is a right of appeal to a tribunal, it is open to the Secretary of State to resist the grant of judicial review if she is able to demonstrate that the decision would inevitably have been the same.

10. In my judgment, there are six key points which for relevant purposes emerge from the case law in this area.

(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.

10.	That point, in my judgment, is well established on the authorities. In MF(Nigeria (at paragraph 44) the Court of Appeal described “the new rules” as "a complete code".  But that was plainly in the context of applicable rules which included provision “in the new rules” for “exceptional circumstances”: see the end of paragraph 42. That this was the position in MF (Nigeria) was recognised in the discussion of that case in Halleemudeen at paragraph 43. 

11.	Appendix FM and Rule 276ADE have no equivalent “exceptional circumstances” provision.  “Plainly”, as was held in Amin at paragraph 26, they are not “exhaustive”; but there is "always a residual discretion" (see paragraph 42).  As the Court of Appeal explained in MM (Lebanon) (paragraph 134): " ... if the relevant group of [Immigration Rules] is not ... a 'complete code' then the proportionality test will be more at large, albeit guided by the Huang tests and UK and Strasbourg case law".

12.	The Immigration Rules are the important first stage and the focus of Article 8 assessments. Indeed it will be an error of law not to address Article 8 by reference to the Rules.  The position is explained by the Court of Appeal in Halleemudeen at paragraphs 40 to 42, 47 and 51.

(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.

13.	So far as this is concerned, the relevant guidance for the purposes of this case was in the Immigration Directorate Instructions December “Family Members Under the Immigration Rules” (December 2012) at paragraph 3.2.7d headed “Exceptional circumstances”.  I quote from that guidance:

"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."  

14.	Two points, in my judgment, are to be emphasised in relation to that guidance.
(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".

15.	The importance of the guidance is well recognised in the case law: see eg. Nagre paragraph 13, Ahmed paragraph 23 and MM (Lebanon) paragraph 48. In Nagre the court described the guidance (paragraph 14) as "clear and appropriate".  See too Halleemudeen at paragraph 17, where Nagre and the guidance are discussed. Later in the judgment in Nagre (paragraph 35) the court refers to the “full coverage of the individual's rights under Article 8 in all cases”, that being "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".  That was described as the “overall legal framework”. At paragraph 36 there is a reference to "the immigration control regime as a whole (including the Secretary of State's residual discretion)". In Ahmed, in an important passage at paragraph 38, there were no fewer than five references to Article 8 considerations being embedded, catered for or addressed in "the Rules and the guidance."

16.	It ought not to be overlooked that as a matter of conventional public law, policy criteria are not regarded as exhaustive. A relevant power or duty must be accompanied by flexibility, so that criteria are not permitted rigidly or automatically to dictate the answer in an individual case, and so that the decision maker remains willing to listen and consider the question as to whether an exception should be made. Moreover, it is axiomatic in public law that where there is a discretion it is accompanied by a duty to consider the exercise of the discretion.

(iii) The duty to consider exercising the discretion is recognised in the authorities.

17.	In my judgment, that is a point that follows already from the significance of the guidance and the discussion of it in the case law, with which I have dealt already. However, there are some further reference points which assist.
18.	In Nagre (at paragraph 14, my emphasis added) the court held by reference to the guidance that relevant officials:

 " ... 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."

19.	In MF(Nigeria the Court of Appeal referred in the context of exceptional circumstances and discretion to their being a necessity. In paragraph 44 reference was made to the application of the proportionality test "as required by the Strasbourg jurisprudence”. At paragraph 45 reference was to the fact that "it would be necessary to apply a proportionality test".  At the end of paragraph 46 the Court of Appeal explained that, whether within or outside the Immigration Rules: "either way it is necessary to carry out a two stage process."  See too MM (Lebanon), paragraph 130; Ahmed, paragraph 26 (“where a claimant did not meet the requirement of the Rules it is then necessary … to proceed to make an assessment of Article 8 applying the criteria established by law”); and Amin, paragraph 43 to 44 and 46.

(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.

20.	In MF(Nigeria (at paragraphs 44 to 45) the Court of Appeal framed the approach as follows:

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".

21. The same point can be seen from the other authorities: see Halleemudeen, paragraph 59, referring to "the Article 8 proportionality issue"; paragraph 67 referring to "the assessment of proportionality"; Nagre, at paragraph 14, describing the describing the guidance and the question whether "on the particular facts there would be a breach of Article 8 rights"; paragraph 28, explaining that "the basic framework of analysis contemplated by Lord Bingham in Huang continues to apply"; and paragraph 35, referring to the question whether "Article 8 gives rise to a good claim for an individual to be allowed to remain".  See too Ahmed at paragraph 30, referring to the weighing exercise to be carried out compatibly with the Convention; and Amin, paragraph 34, referring to consideration of "Article 8 in its fullness" and explaining, between paragraphs 40 and 46, the significance for the residual discretion of the need to comply with the Secretary of State's duty under section 6 of the Human Rights Act.  

(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.

21.	In my judgment, this position is plainly supported by the guidance and authorities.  Starting with the guidance, the whole point of paragraph 3.7d is to recognise that the decision maker is required to consider relevant factors in order to determine whether there are exceptional circumstances.  In my judgment, it is difficult to see the logic of a position where, by reference to some threshold question requiring exceptional circumstances, the Secretary of State is not required to consider the position at all.

22.	For the Secretary of State, Miss Rowlands emphasised passages in Nagre at paragraphs 29 and 30.  At paragraph 29, Sales J said this, having referred to the application of the Rules (emphasis added):

"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.

23.	Moreover, these passages in Nagre are alongside what was said in paragraph 14 of that case, in endorsing the guidance as “clear and appropriate” and explaining that officials "have to consider whether it is a case where on the particular facts there would be a breach of Article 8 rights".  As I said at the outset of this judgment, Nagre was a case in which the question had been considered and the reasons in the decision letter had addressed whether there was any basis for any exercise of discretion in terms of exceptional circumstances (see paragraph 23 of Nagre).

24.	The question of what "assessment of Article 8" is called for in the circumstances, and in particular whether there is a need for "a full separate consideration" is, in my judgment, a different matter. It does not obviate the duty on the decision maker to consider the exercise of discretion.

25.	This topic was considered by Green J in Ahmed.  Under a heading "good arguable case needed to trigger an Article 8 review outwith the Rules" the judge considered Nagre and another authority cited to him (paragraphs 31 to 32).  He then picked up the point at paragraphs 36 to 39.  Of significance, in my judgment, in considering that analysis are two points.  Firstly, Green J recognised at paragraph 33:

 " ... 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.

26.	Secondly, of significance in Green J's analysis, are the passages in which he considers the application of the two‑stage test and in particular the emphasis on the guidance alongside the Rules: see paragraph 38 of his judgment.  As with Nagre, in Ahmed the position was that the discretion had been addressed in the decision letter and the judge explained at paragraph 39 that the relevant matters had all been taken into account in the context of a decision which had expressly addressed whether there were exceptional circumstances (see paragraph 12 of the judgment in Ahmed).

27.	Moreover, so far as what was envisaged by "an Article 8 review", Green J went on to explain that there was no need to conduct what would be an ‘artificial duplication’ of the exercise already undertaken under the Rules if that exercise had already evaluated and assessed the relevant facts.  He referred at paragraph 39 to the absence of a need "artificially to duplicate the self‑same exercise outside the Rules" and continued by reference to the absence of the need "to make an identical assessment."  The context in Ahmed was that the claimant was submitting that there had been an error of law (see paragraph 36) "in failing to conduct a separate, discreet Article 8 assessment outside of the Rules". In my judgment, the judge was plainly addressing his mind to the question of whether the Secretary of State could properly conclude that no such further “assessment” was called for, having stood back and formulated the “overall … view” which he had described at the end of paragraph 33.

28.	Looking at the other side of the coin, in Halleemudeen, at paragraph 47, the Court of Appeal described a situation in which the impugned decision maker (there, the tribunal) had "identified [no] particular features of Mr Halleemudeen's case which justified considering proportionality outside the Rules".  That, in my judgment, also supports the position in principle which is that it is for the Secretary of State to address her mind to the question of exceptional circumstances and whether any further evaluation is called for and, if so, to conduct it.

29.	In my judgment the ‘threshold questions’, as they have been described, are therefore informing the question of what it is appropriate for the decision letter to go on to contain by way of assessment. They are not obviating the need for the Secretary of State at least to address her mind to the question of discretion and exceptional circumstances and to give some reasoning which indicates that she has done so and what conclusion she has arrived at.

30.	Were it otherwise, this position would arise. Decision letters would be upheld as lawful even though no indication arises that anything has been done other than simply to apply the Rules. Put another way, decision letters which are the same in their content as they would have been if the Secretary of State (or her official) erroneously considered that the Rules were a comprehensive code or erroneously ignored the existence of the guidance as part of the overall scheme would be upheld as lawful decisions.  In my judgment, the authorities cited to me do not support such a conclusion.

(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.

31.	Miss Rowlands, for the Secretary of State, pointed to various passages in the authorities which described factors and circumstances by reference to whether they were already recognised in the Immigration Rules. See, for example, Nagre at paragraph 29, which refers to "circumstances not sufficiently recognised under the new Rules"; Amin, paragraphs 30 and 32, referring to "other circumstances"; and Halleemudeen, paragraph 49, which refers to reliance on "the very factors that meant [the claimant] did not qualify" under the Rules.  Those are illustrative examples of passages of that kind.

32.	It is certainly the case (see Halleemudeen paragraph 49 and 65 and see the guidance itself quoted earlier in this judgment) that an applicant cannot invoke the discretion on the basis of a ‘near miss’ so far as the criteria under the Rules are concerned.  In other words the ‘residual discretion’, as it has been called, is not an entitlement to leave to remain in a case which has nearly satisfied the criteria.

33.	Miss Rowlands, to illustrate the position so far as circumstances ‘catered for by the Rules’ are concerned, gave examples including the question of immigration status and the length of duration and the combination of the two. However, as I have already emphasised, the guidance itself lists as illustrative a relevant circumstance under the discretion precisely the question of the proportion of time that has been spent in the United Kingdom with leave to remain. Strictly, I would accept that is illustrative of the sorts of ‘considerations addressed by the Immigration Rules’. However, in my judgment, it is quite impossible to conclude that that sort of feature is to be excluded from the residual discretion, still less that it could not be considered in combination alongside other features of a case, whether or not themselves addressed fully or partially within the Immigration Rules.

34.	It is, in my judgment, revealing that Sales J in Nagre (at paragraph 29) was talking about a question of degree when he was referred to “circumstances not sufficiently recognised in the Immigration Rules”.  The point about duration of presence and immigration status is emphatically illustrated by Ahmed at paragraphs 41 and 43 to 44, where the court regarded that feature as being a matter which could properly go to the exercise of the discretion.  Therefore, there is no basis for treating features of this kind, in my judgment, as somehow excluded from the overall evaluation.

35.	The same point could be illustrated by many passages in the other cases: Halleemudeen, paragraph 66; and Amin, paragraph 38, are examples. There, the courts are discussing circumstances which at least touch on those covered by the Rules. In Halleemudeen the reference at paragraph 66 is a discussion of the length of residence in the United Kingdom, which rules the claimant in that case could not satisfy.

Conclusion  
36.	It follows from the factual premise in this case and the analysis of the law which I have set out above that there was, in my judgment, an error of law in the decision letter in this case.  The decision letter and notice contain no indication or reasoning which demonstrates that the Secretary of State has considered the exercise of discretion or the question of exceptional circumstances or the question of proportionality.  The claimant does not submit, and I do not find, that the Secretary of State was required to undertake any particular review or assessment or parallel assessment. However, in order to be a lawful decision the Secretary of State was, in my judgment, required to address her mind to the question of the discretion and was required in her reasons to demonstrate that she had done so and what conclusion she had reached.

Inevitability
37.	The critical question, therefore, becomes whether the court can be satisfied in this case that the decision would inevitably have been the same had the decision addressed the question of discretion.  So far as that is concerned, Miss Rowlands, for the Secretary of State, emphasised in essence two points. Before I come to them, I should explain that I accept, and the point is well illustrated by Halleemudeen paragraphs 61, 64 and 68, that if Miss Rowlands can satisfy the court on the question of inevitability of outcome, it could not be appropriate to grant judicial review.  That is because she would have demonstrated that the error of law was not a material one.  Put another way, she would have demonstrated that it could not be appropriate in the exercise of discretion to grant any relief.

38.	The first of Miss Rowlands’ two key submissions on this part of the case involved identifying what she submitted was the link between the sorts of features relied upon by the claimant in the submissions letter and the contents of the relevant Immigration Rules regarding family life and private life.  I have already dealt with the question of whether features which overlap with, or are part of the subject matter of, relevant Immigration Rules become legally irrelevant when the discretion comes to be addressed.  In my judgment, they do not.  This is not a case in which the claimant was invoking the discretion on the basis, in my judgment, of a ‘near miss’ of the Rules. Rather, a series of circumstances were being put forward which were properly matters for evaluation as to whether removal in the circumstances could be said to be disproportionate and in breach of Article 8 for the purposes of the ‘exceptional circumstances’ discretion and the ‘unjustifiable harshness’ question identified in the guidance. In my judgment, the ultimate question was, and remains, whether that combination of features could lead to a positive conclusion applying that approach. I am not persuaded that the contents of the Immigration Rules of themselves provide an answer which robs that claim, for an exercise of discretion, of any prospect of success.

39.	Secondly, and very powerfully, Miss Rowlands submitted that the proof of the pudding in relation to this point is to look at the way in which factors of this kind have been addressed in the case law. As to that, she emphasised Ahmed and the features of that case, submitting that they were similar and in her submission stronger than those in the present case; they being features which were considered in the judgment of Green J and in particular between paragraphs 40 and 44.  Ahmed was a case of an overstayer who had a period of lawful residence, had claimed that it had ended in circumstances of inadvertence, relied on the genuine and subsisting relationship with a spouse whom he had married from the outset and in circumstances which were not appropriately to be regarded as highly precarious.  Ahmed was a case in which the judge held that precisely those considerations had been properly evaluated in the decision letter which in terms addressed the question of exceptional circumstances. The question is whether Miss Rowlands can persuade me, by reference to the conclusion in that case that Article 8 considerations have been lawfully rejected, that the present claim is so hopeless that the decision that her client would have arrived at can be regarded as inevitable.

40.	There are dangers, in my judgment, in taking factors of that kind in another case and seeking to rely on them to sustain the submission that the answer in a different case is inevitable.  As Miss Anzani pointed out, Ahmed was a case where the wife had lived most of her life outside the United Kingdom. It was a case in which the duration of the period of lawful residence in the United Kingdom was considerably shorter, that is to say 4 years.  It was also a case in which one can see that there was no particular consideration arising out of any employment status.  The present case involves 13 years’ presence, as I said out the outset, with more than nine and a half years lawfully with leave to remain and involves the settled position of a British citizen having spent a considerable period in the United Kingdom, 16 years, having arrived here aged 14, settled here with a job and supporting the couple.

41.	I am not prepared to accept on the basis of Ahmed that the outcome in the present case, had the Secretary of State addressed in the decision letter the question of exceptional circumstances, would inevitably have been adverse to the claimant.

42.	I note from Halleemudeen, by way of contrast, the sorts of considerations which led the Court of Appeal to be unable to be satisfied that the outcome in that case was inevitably adverse.  Facts and circumstances, of course, will always be different but in that case emphasis was placed on various features covered by the Immigration Rules which the claimant could not satisfy by some measure. There were some 13 years of presence, 11 of them lawfully, with a wife who had been present for some 7 or so years and in circumstances where the couple and their two children were settled with employment links. Not unlike the Court of Appeal in Halleemudeen (Beatson LJ at paragraph 64), I have not found it easy either to assess whether it is inevitable that on reconsideration the Secretary of State would reach the same conclusion, nor whether, had she addressed her mind to the discretion and addressed it in the decision letter, she would have done so.

43.	I should make clear that reference to case law by way of parallel can, in my judgment, be extremely helpful in Article 8 cases. That is not because any parallel case will of itself be authority which is binding. Rather, it is that such cases can be very helpful as working examples, particularly where a court is grappling with the submission that an answer is obvious or inevitable, or a question whether a human rights claim would have no realistic prospect of succeeding. That is the sort of question which often arises and having the assistance of working examples can, in my judgment, help the court to reach confident conclusions. In this case, the two cases to which I have referred happen to be before the court because they happen to be relevant to the two‑stage test. I make no criticism of anyone but there are before the court no ‘working examples’ that would enable me to come to a confident conclusion on this issue of inevitability. 

44.	It matters that the Secretary of State approaches decisions lawfully, asking herself the legally relevant questions, having regard to legally relevant considerations and giving legally adequate reasons.  It matters, in my judgment, that the Secretary of State is the front-line decision maker entrusted with addressing these considerations, and, on the face of it, the claimant was entitled, in my judgment, to a decision which demonstrably did so.  The decision in this case demonstrably did not do so and I am not prepared to refuse judicial review on the basis that the decision would inevitably have been the same had the discretion been addressed.

45.	I add two footnotes.  First, having regard to what was said by the Court of Appeal in Halleemudeen at paragraph 60, about a court asking whether it can “properly consider the question of proportionality itself”, I was not invited to approach this case on the basis of adopting a primary judgment on the question of proportionality.  Miss Rowlands, in my judgment properly and correctly, took her stand on the question of inevitability. I have in mind in any event what the Court of Appeal said about the “evaluative exercise” which proportionality involves (see paragraph 67).  I am also conscious of the advantage that the Secretary of State has as the front-line decision maker in relation to such matters. It would have been very easy for the Secretary of State to address, by reference to the guidance, the question of exceptional circumstances. She could at any time, including after the grant of permission for judicial review, have decided to do so.

46.	Finally, again by way of footnote, I come to the case of Chikwamba.  In the letter of representations in this case reliance had been placed on Chikwamba.  The point that was there being made wass that, if the Secretary of State gave as the only reason for maintaining her decision that the claimant could leave the UK and apply for entry clearance, that would not of itself make the decision proportionate.  That point was picked up on in the grounds for judicial review at paragraph 29 and in the skeleton argument at paragraph 20(ii).  I was also shown the case of R (Zhang) v Secretary of State for the Home Department [2013] EWHC 891 (Admin) for the purposes of submitting that in applying Chikwamba there was no distinction between children cases and other cases.  I was not prepared to allow Miss Anzani to make any further or different point arising from Chikwamba at this hearing, and I ruled on that at the start of the hearing.  If Miss Anzani wished to make other submissions, then in fairness to the Secretary of State, the case would have needed to be adjourned.  Miss Anzani chose to proceed on the basis of the Chikwamba point as it had been put in the letter and the grounds.

47.	In my judgment, there is a short and complete answer to that point, as Miss Rowlands correctly submits.  The Secretary of State did not fall into any error so far as the point which is advanced is concerned.  Nowhere in the decision, still less as the sole basis of it, did the Secretary of State rely on the claimant's opportunity to leave and apply for entry clearance.  That was not the basis of her conclusion and in those circumstances I am quite satisfied that there is nothing in the Chikwamba point.

48.	For the reasons that I have given this claim for judicial review succeeds.

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 [2013] 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.