QUEEN'S BENCH DIVISION
33 Bull Street, Birmingham, B4 6DS
B e f o r e :
| IFTIKHAR AHMED
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Claire Van Overdijk (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 4th February 2014
Crown Copyright ©
Mr Justice Green :
(1) The Application
(2) The facts
(i) The Claimant
(ii) The first decision: 13th November 2012
(iii) The application for permission to apply for judicial review
(iv) The second Decision letter: "The August 2013 Decision".
i) The fact that the Claimant and his wife did not have children.
ii) The fact that there were no insurmountable obstacles to the Claimant and his wife continuing a family life in Pakistan bearing in mind that the Claimant's wife had lived most of her life outside of the United Kingdom and the fact that the Claimant had likewise lived most of his life in Pakistan.
iii) The fact that neither the Claimant nor his wife had employment nor owned property in the United Kingdom.
iv) The fact that the Claimant, having overstayed his permit, "should have been aware" that he had no legal right to remain and could be asked to leave at any point in time and that this would impact upon his family life in the United Kingdom.
v) The conclusion that for the Claimant and his wife living in the United Kingdom was merely a preference to living in Pakistan but that no evidence had been advanced to establish that there were any problems in relation to relocating back to Pakistan.
vi) The fact that the Claimant had produced no evidence that he had no ties, including cultural or family ties back in Pakistan.
"21. I have considered whether the particular circumstances set out in your client's application constitute exceptional circumstances which, consistent with the right to respect a private and family life contained in Article 8 of the European Convention on Human Rights, might warrant consideration by the Secretary of State of a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules. It has been decided that they do not, because it took your client over two years to attempt to regularise his stay in the United Kingdom after his previous leave to remain expired. Your client claims this was an oversight on his part as he thought he had indefinite leave to remain. However, it was your client's responsibility to ensure that he was aware of the conditions of his stay in the United Kingdom, and to make sure that he remained here lawfully at all times".
(v) The reformulation of the Claimant's Grounds
"It is contended that to simply state that the Claimant has waited two years to regularise his status, in circumstances when it is not challenged that his marriage is subsisting, is insufficient reason for stating that the case cannot succeed outside of the Immigration Rules".
(3) The statutory framework
"This route is for those seeking to enter or remain in the UK on the basis of their family life with a person who is a British Citizen, is settled in the UK, or is in the UK with limited leave as a refugee or person granted humanitarian protection. It sets out the requirements to be met and, in considering applications under this route, it 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 of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others. It also takes into account the need to safeguard and promote the welfare of children in the UK".
The purpose of Appendix FM is, accordingly, to build into the fabric of the Immigration Rules Article 8 type considerations. In this section it is stipulated that the requirement for limited leave to remain as a partner includes that the applicant must meet all of the requirements of "Section E-LTRP". One such requirement, set out in E-LTRP.2.2 is that: "The applicant must not be in UK in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX. applies". Once again it is common ground in the present case that the Claimant had overstayed his permitted period by a substantial period amounting to approximately two years and eight months by the time of the application. However, because E-LTRP.2.2 makes reference to exceptions in "paragraph EX.", this is, yet again, not the end of the story.
"(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK".
"Where an applicant does not meet the requirements of the rules under Appendix FM and/or Appendix FM-SE, refusal of the application will normally be appropriate. However, leave can be granted outside the rules where exceptional circumstances apply. Where an applicant fails to meet the requirements of the rules, caseworkers must go on to consider whether there are exceptional circumstances.
"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 or their family 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".
"When assessing an application under paragraph EX.1.(b), in determining whether there are "insurmountable obstacles", the decision-maker should consider the seriousness of the difficulties which the applicant and their partner would face in continuing their family life outside the UK, and whether they entail something that could not (or could not be expected to) be overcome, even with a degree of hardship for one or more of the individuals concerned.
The assessment of whether there are "insurmountable obstacles" is a different and more stringent assessment than whether it would be "reasonable to expect" the applicant's partner to join them overseas. For example, a British Citizen partner who has lived in the UK all their life and speaks only English may not wish to uproot and relocate halfway across the world, but a significant degree of hardship or inconvenience does not amount to an insurmountable obstacle. ECHR Article 8 does not oblige the UK to accept the choice of a couple as to which country they would prefer to reside in.
The decision-maker should look at whether there is an inability to live in the country concerned. The focus should also be on the family life which would be enjoyed in the country to which the applicant would be returned, not a comparison to the life they would enjoy were they to remain in the UK.
Lack of knowledge of a language spoken in the country in which the couple would be required to live would not usually amount to an insurmountable obstacle. It is reasonable to conclude that the couple must have been conversing in a commonly understood language whilst in the UK. Therefore, it is reasonable for that to continue outside the UK, whether or not the partner seeks to learn a/the language spoken in the country of proposed return.
The factors which might be relevant to the consideration of whether an insurmountable obstacle exists include but are not limited to:
(a) Ability of family to lawfully enter and stay in another country. The decision-maker should consider the ability of the parties to lawfully enter and stay in the country concerned. However, the onus should be on the applicant to show that this is not possible in order for this to amount to an insurmountable obstacle. A mere wish/desire/preference to live in the UK would not amount to an insurmountable obstacle.
(b) Cultural barriers. This might be relevant in situations where the partner would be so disadvantaged that they could not be expected to go and live in that country. It must be a barrier which either cannot be overcome or would present a very high degree of hardship to the partner such that it amounts to an insurmountable obstacle.
(c) The impact of a mental or physical disability. Whether or not either party has a mental or physical disability, a move to another country may involve a period of hardship as the person adjusts to their new surroundings. But a physical or mental disability could in some circumstances mean that the degree of hardship which would be experienced by the person would be such that it amounts to an insurmountable obstacle".
(4) Case law on Article 8
(i) The two part test
"The only slight modification I would make, for the purposes of clarity, is to say that if, after the process of applying the Rules and finding that the claim for leave to remain under them fails, the relevant official or Tribunal Judge considers that 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 was 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".
"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".
(ii) The overall evaluative exercise/"precarious" rights
"The Court reiterates that in the context of both positive and negative obligations the State must strike a fair balance between the competing interests of the individual and of the community as a whole. However, in both contexts the State enjoys a certain margin of appreciation. Moreover, Article 8 does not entail a general obligation for a State to respect immigrants' choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State's obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (e.g., a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion. Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8".
(iii) Exceptional circumstances
(iv) Good arguable case needed to trigger an Article 8 review outwith the Rules
"In my judgment, the correct analysis of the position is that which I have set out above by reference to the Strasbourg case-law. The consequence, in my view, is that in the majority of precarious family life cases where removal is in question, where the Secretary of State's officials conclude that the family member who is applying for leave to remain cannot satisfy the test in Section EX.1(b) in the new rules, it is unlikely that there will be a good arguable case (let alone a case that is ultimately found to be established) that Article 8 would require that leave to remain should be granted outside the Rules".
(v) Need to avoid a tick box approach
(5) Failure by the Defendant to apply the two part test
"22. It is also not recognised that your client raised any circumstances with his original application that could be deemed to be exceptional. It is accepted that your clients wife is a British citizen who has been in the United Kingdom for a number of years, but for the reasons previously mentioned, on its own, this is not sufficient for the Secretary of State to exercise her discretion by granting leave on an outside the rules basis."
The SSHD hence also addressed herself to the particular position of the Claimants wife, and her period of residence in the UK and her status as a citizen in the UK and, by cross reference, brought into play all of the other factors which had led the SSHD to conclude that her position, in combination with his, was not sufficient in the weighing exercise to lead to a positive decision in the Claimants favour. In summary whilst Ms Rutherford was quite right to distinguish Nagre, in this case the SSHD did not conclude that the family right was highly precarious. Here the SSHD identified the correct facts and simply took them into consideration as part of a more general and overall assessment. The Claimant at no point in time had a guarantee that he would be given a permanent right to residency in the United Kingdom and, further, part of the period of time relied upon by the Claimant to found his claim for family life covers a period when he was unlawfully in the United Kingdom. There was hence an element of precariousness but not a very strong one; but in my judgment the Defendant did not mischaracterise the factor nor give it undue weight.
(6) Insurmountable obstacles
"We would observe that, if "insurmountable" obstacles are literally obstacles which it is impossible to surmount, their scope is very limited indeed. We shall confine ourselves to saying that we incline to the view that, for the reasons stated in detail by the UT in Izuazu at paras 53 to 59, such a stringent approach would be contrary to Article 8".
"It is thus the degree of difficulty the couple face rather than the 'surmountability' of the obstacle that is the focus of judicial assessment but again as a factor rather than a test".