England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th November 2014

Judge A Grubb :

Introduction

1. The first claimant ("C1") and second claimant ("C2") are citizens of Nigeria who were born respectively on 23 September 1992 and 6 October 1993. They are sisters and are now aged 22 and 21 years old respectively.
2. The claimants entered the United Kingdom on 20 January 2004 with visit visas and leave valid until 15 July 2004. Thereafter, the claimants overstayed.
3. The purpose of the visit was purportedly to see their grandmother in the UK where she lives and is a British citizen. However, it would appear that in truth they came to join their maternal aunt, a British citizen in the UK, with the agreement of the father, after their mother died in Nigeria in December 2003. They have lived with their aunt, her 3 children and their grandmother since arriving in the UK. It is also said, although not specified, that they have other family members in the UK. The claimants have attended school. It would appear that both claimants have obtained GSCEs and A levels and both have been offered places at the University of Portsmouth to study pharmacy and psychology respectively. It is not clear from the evidence whether either claimant has actually taken up the offer of a place.
4. On 22 June 2012, the claimants submitted separate FLR(O) applications for discretionary leave on the basis of their private and family life in the UK.
5. On 7 February 2013, the Secretary of State refused C1 leave to remain. On 28 March 2013, the Secretary of State refused C2 leave to remain.
6. On 1 March 2013 and 15 April 2013, the claimants' legal representatives sent pre-action protocol letters to the Secretary of State in respect of C1 and C2 respectively in which it was argued that the Secretary of State's decisions failed properly to consider the claimants' rights to remain under Article 8 of the ECHR and requesting the Secretary of State to make an appealable removal decision against each of the claimants.
7. On 7 May 2013, the claimants issued these proceedings contending that the Secretary of State had acted unlawfully in failing properly to consider their rights under Article 8 of the ECHR and in failing to issue appealable immigration decisions.
8. On 17 October 2013, permission was granted by Lang J.

The Respondent's Decisions

9. The separate decision letters in respect of each claimant are brief.
10. C1: 7 February 2013
11. The basis of the Secretary of State's refusal in relation to C1 was, in summary, as follows. First, the Secretary of State concluded that the "family life" which C1 claimed with her "family and friends" in the UK did not constitute family life under Appendix FM of the Immigration Rules (Statement of Changes in Immigration Rules, HC 395 as amended). Secondly, as a consequence, the Secretary of State went on to consider C1's claim based on her "private life" in accordance with para 276ADE of the Immigration Rules. Having set out the requirements of the rule, the Secretary of State concluded that C1 could not succeed under para 276ADE(iii) as she had only been resident in the UK for nine years and not, as required, for at least twenty continuous years. Further, in relation to para 276ADE(vi), the Secretary of State concluded that C1 had not established she had "no ties" with Nigeria. The refusal letter states as follows:

"Furthermore I note that you entered the United Kingdom at the age of 11 and you are now 20 years of age. I am therefore satisfied that you have lived a large proportion of your life in Nigeria and as you can return to Nigeria with your sister and by the fact that your father is in Nigeria you have failed to demonstrate that you have no ties (including social, cultural or family) with Nigeria and therefore do not meet the requirements of paragraph 276ADE(iii) (vi)."

12. The decision letter itself makes no reference to a consideration of whether C1's circumstances justify a grant of leave on an exceptional basis outside the Rules. However, the covering letter does state:

"Your client's case has been considered on an exceptional basis. You have made submissions that your client wishes to remain in the United Kingdom due to her having a family and private life here. Whilst it is acknowledged that your client wishes to remain in the United Kingdom this does not give your client the right to do so on an exceptional basis."

13. C2: 28 March 2013
14. C2's decision letter is even more briefly expressed. In respect of C2, the Secretary of State first concluded that the "family life" that C2 claimed with her relatives in the UK did not constitute family life for the purposes of Appendix FM and that her application would therefore be considered on the basis of her "private life" only under para 276ADE. Secondly, the Secretary of State set out the relevant requirements of para 276ADE. Thirdly, having noted that C2 entered the UK on 20 January 2004 aged 10, (and thus by implication could not show 20 years continuous residence), the Secretary of State concluded that she could not show under para 276ADE(vi) that she had "no social or cultural ties" to her home country.
15. The decision letter again makes no reference to a consideration of whether C2's circumstances justify a grant of leave outside the Rules on an exceptional basis. Unlike with C1, no reference is made to exceptional circumstances in the covering letter sent with the decision letter.

The Issues

16. In his oral submissions, Mr Zane Malik, who represented the claimants, did not pursue their challenge on the basis that the Secretary of State had acted unlawfully by failing to make an appealable immigration decision. That was undoubtedly a sound approach in the light of the authorities that the Respondent does not have an obligation (but only a discretion) to make an appealable removal decision when refusing leave to remain (see R (Daley-Murdock) v SSHD [2011] EWCA Civ 161 and Patel and others v SSHD [2013] UKSC 72). Instead, Mr Malik focused exclusively on the ground that the Secretary of State had acted unlawfully in failing properly to consider the claimants' Article 8 rights in her decisions of 7 February 2013 and 28 March 2013.
17. Mr Malik advanced the claimants' case on three bases:

(1) The Secretary of State acted unlawfully by refusing the claimants leave to remain by reference to the new Immigration Rules incorporated by HC 194 (the "new Rules") which came into effect on 9 July 2012 when the claimants' application for leave was made prior to that date;

(2) The Secretary of State acted unlawfully by failing to give independent consideration to Article 8;

(3) The Secretary of State acted unlawfully by failing to consider whether to exercise discretion outside the Rules under Article 8 on the basis that there were "exceptional" circumstances justifying the grant of leave.

Application of the 'New' Rules

18. On 9 July 2012, the Immigration Rules were amended by HC 194 (June 2012) so as to include, in particular, rules specifically dealing with claims to enter and remain in the UK based upon family relationships (Appendix FM), claims based upon private life in the UK (paras 276ADE to 276DH) and setting out the scope of the public interest and the circumstances in which it will be outweighed in a deportation case (paras 396 to 399C). Those changes were introduced in order to give effect to the government's view of the scope of Article 8 of the ECHR. The extent to which the rule has successfully enshrined, as it is put in some of the case law, a "complete code" I will return to shortly in the light of the authorities.

The Submissions

19. Mr Malik submitted that the new Rules had no application to the claims made by the claimants and the Secretary of State had acted unlawfully by applying them in refusing the claimants leave to remain.
20. Mr Malik based his submission squarely upon the decision of the Court of Appeal in Edgehill and Another v SSHD [2014] EWCA Civ 402. He submitted that the Court of Appeal had concluded that in considering applications for leave to remain outside the Rules under Article 8, where the applications were made before 9 July 2012, it was an error of law to reach that decision applying the new Rules, namely para 276ADE. Mr Malik accepted that the Court of Appeal added a proviso, namely that the reliance upon the new rule must be "material" but, he submitted, the new Rules were material consideration in the decisions made in respect of the claimants.
21. Mr Malik accepted that the Court of Appeal had taken a different approach in Haleemudeen v SSHD [2014] EWCA Civ 559. However, Mr Malik submitted that it was clear that the Court of Appeal in Haleemudeen had not been referred to the earlier decision in Edgehill and had not been shown the implementation provisions in HC 194 which was relied upon by the Court of Appeal in Edgehill to reach its decision. Mr Malik submitted that I should follow Edgehill, either on the basis that the decision in Haleemudeen was decided per incuriam or, alternatively, being faced with conflicting decisions of the Court of Appeal I was free to choose between the decisions and, he submitted, I should follow Edgehill, which was correct.
22. Ms Catherine Rowlands, on behalf of the Secretary of State, submitted that the point relying on Edgehill had not been part of the claimants' grounds and no application to amend the grounds had been made so, as a result, I should not entertain Mr Malik's arguments on this issue. In any event, Ms Rowlands submitted that, even if Edgehill was followed, it was clear that these claimants could not succeed on the basis of any rules in force prior to 9 July 2012. The application of the new Rules, in particular para 276ADE, to these claimants was, therefore, Ms Rowlands submitted, not material to the decisions. Consequently, these claimants could not succeed in these proceedings any more than could the one appellant (HB) in Edgehill, who could not show that, unlike the other appellant in Edgehill (JE), that had the old Rules been applied to him he would have succeeded.

Discussion

23. I will deal first with Ms Rowlands' pleading point which has considerable merit. The argument based upon Edgehill has never formed part of the claimants' grounds nor has any application been made to amend the grounds to include this argument. It is, of course, not surprising that the point was not made in the claim as originally filed on 7 May 2013 since the decision in Edgehill was not handed down until 2 April 2014. However, there has been more than ample time to seek to amend the grounds to raise this point. In fact, the point was raised for the first time in the claimants' skeleton argument dated 25 September 2014 which was itself served on the defendant less than a week before the hearing date. That said, Ms Rowlands both in her skeleton argument and in her oral submissions dealt with the merits of this point.
24. In the absence of any amendment to the grounds to include this challenge, and Mr Malik made no such application, the claimants cannot rely on this basis to challenge the legality of the decisions. Nevertheless, as I have heard full submissions on the point, and given the view I take that the claimants cannot, in any event, succeed under it, I will address the substance of Mr Malik's submissions.
25. In Edgehill the Court of Appeal concluded that the Upper Tribunal had erred in law in considering the Article 8 claims of the two appellants before the Court of Appeal under the 'new' private life rule in para 276ADE when their applications had been made prior to 9 July 2012. The Court relied upon the "implementation" provisions set out at the beginning of HC 194. That provided that the relevant changes took effect on 9 July 2012 but continued:

"However, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012".

26. The Court of Appeal rejected the Secretary of State's argument that that provision could only apply in instances where the pre 9 July 2012 application was, itself, under the Rules and so it could not apply to an application to remain under Article 8 because, prior to 9 July 2012, such an application was for discretionary leave outside the Rules. The Court of Appeal declined to interpret the implementation provision in this way and concluded that it applied to all applications made prior to 9 July 2012. The Court concluded that, therefore, it was unlawful to reject an Article 8 application made before 9 July 2012 in reliance upon the individual's failure to meet the requirements of the new Rules, in particular being able to show twenty years' continuous residence (which replaced the specified period of fourteen years' continuous residence in the UK under the former rule 276B). The Court of Appeal stated, however, "one important qualification" at [33]. That was that:

"A mere passing reference to the twenty years' requirement in the new Rules will not have the effect of invalidating the Secretary of State's decision. The decision only becomes unlawful if the decision maker relies upon rule 276ADE(iii) as a consideration materially affecting the decision." (my emphasis).

27. Applying that "important qualification" the Court of Appeal allowed the appeal of JE because he had lived continuously in the UK for more than fourteen years (and therefore satisfied the requirements of the old Rules) but could not show that he had lived continuously in the UK for at least twenty years (under the new para 276ADE). However, in relation to HB, the Court of Appeal dismissed his appeal because, not only could he not show twenty years' continuous residence under para 276ADE, also he could not show fourteen years' continuous residence under the old Rules. The error was, therefore, not material. At [38], the Court of Appeal stated:

"It is clear that both the Secretary of State and the Tribunals would have made precisely the same decision whether or not they had regard to the new Rules".

28. That is precisely the point relied upon by Ms Rowlands in relation to these claimants. I accept that submission. It is not contended that they could have succeeded under any immigration rule in force prior to 9 July 2012. They could not succeed under the 'long residence' rule in para 276B based upon 10 years continuous lawful residence or 14 years residence. Further, they had no claim under the Rules based on their relationship with their aunt or grandmother. There was, prior to 9 July 2012, no rule expressly dealing with private claims under Art 8. Their applications were made under Art 8 seeking a grant of leave outside the Rules. The Secretary of State's application of para 276ADE even if legally wrong in the light of Edgehill, was not material to the decisions. The claimants are, in my judgment, in no different position to HB in the Edgehill case. The application of para 276ADE (which it is not suggested either of the claimants could meet) was not material to the decisions and, in my judgment, therefore the claimants cannot succeed on this point.
29. As the claimants cannot succeed even applying Edgehill, it is strictly unnecessary for me to resolve the conflict between the Court of Appeal's decisions in Edgehill and Haleemudeen because the claimants clearly could not succeed if the approach taken by the Court of Appeal to the 'new' rules in Haleemudeen applied.
30. Consequently, I reject the claimants' submissions under this head of challenge.

Independent Consideration of Article 8

The Submissions

31. Mr Malik's second submission was that the Secretary of State's decisions were unlawful because, having decided that the claimants could not meet the requirements of the Rules, the Secretary of State was legally obliged to undertake an independent consideration of their claims under Article 8 of the ECHR. He relied upon the decision of the Supreme Court in Patel and Others v SSHD [2013] UKSC 72 where the court had endorsed the "authoritative guidance" as to the approach of a Tribunal to Article 8 set out in the House of Lords' decision in Huang v SSHD [2007] UKHL 11. He accepted that this did not require a rigid adoption of the five-stage approach set out in R (Razgar) v SSHD [2004] UKHL 27 but required, nevertheless, a consideration of the claimants' individual circumstances including any family life with their relatives in the UK and the issue of proportionality involving a balancing of the demands of fair and firm immigration control against any interference with the claimants' family or private life. Mr Malik submitted that the Court of Appeal in R (On the application of MM (Lebanon) v SSHD [2004] EWCA Civ 985 had rejected the analysis of Sales J in R (Nagre) v SSHD [2013] EWHC 720 (Admin) that it was only necessary to undertake a consideration of a claim outside the Rules if there was an "arguable" case of good grounds for granting leave outside the Rules. He relied upon a passage in the judgment of Aikens LJ at [128] where, having referred to the "arguable case" requirement in Nagre, he stated:

"I cannot see much utility in imposing this further, intermediary, test. If the applicant cannot satisfy the rule, then there either is or is not a further Article 8 claim. That will have to be determined by the relevant decision-maker."

32. Mr Malik submitted that on the basis of Patel and MM, the Secretary of State had erred in law by failing to consider the claimants' claims outside the Rules.
33. Ms Rowlands submitted that the decision in Nagre remained good law. She submitted that nothing in Patel or in MM affected the two-stage approach in Article 8 cases set out in Nagre. First, the Secretary of State must consider whether an individual satisfies the requirements of the Immigration Rules; secondly, if the individual does not, then the Secretary of State must go on to consider her residual discretion to grant leave to remain outside the Rules in cases where there is an arguable claim under Article 8 because the new Rules do not fully dispose of the claim under Article 8. She referred me to a number of passages in the judgment in Nagre, in particular at [27]-[29]. Ms Rowlands submitted that the Court of Appeal in MM had not overruled the two-stage approach. In these cases, Ms Rowlands submitted that the claimants' cases were not strong on the evidence. There was nothing, she submitted, consistent with the approach in Nagre of identifying "compelling circumstances", which arguably justified the grant of leave to either claimant outside the Rules.

The Case law

34. Since HC 194 amended the Immigration Rules on 9 July 2012 to include rules dealing with "Article 8 claims", there have been a number of cases both in the High Court and Court of Appeal (as well as in the Upper Tribunal (Immigration and Asylum Chamber)) which have considered the relationship between the new Rules and Article 8 of the ECHR. I was referred to a number of authorities including Nagre, MF (Nigeria) v SSHD [2013] EWCA Civ 1192; Ahmed v SSHD [2014] EWHC 300 (Admin); Haleemudeen; MM (Lebanon); R (Rafiq) v SSHD [2014] EWHC 1654 (Admin); R (Singh) v SSHD [2014] EWHC 2330 (Admin) and R (Ganesabalan) v SSHD [2014] EWHC 2712 (Admin).
35. A helpful and useful starting point is the decision of Sales J in Nagre. In that case, changes to the Immigration Rules introduced by HC 194 were challenged on the basis that they were unlawful because they were incompatible with Article 8 of the ECHR. Sales J rejected that contention on the basis that the Rules, together with the Secretary of State's residual discretion to deal with "exceptional cases" outside the Rules under Article 8, were Convention compliant. Sales J approved, what has become known as, a two-stage approach. At [29], he said this:

"... the new rules do provide better explicit coverage of the factors identified in case-law as relevant to analysis of claims under Article 8 than was formerly the position, so in many cases the main points for consideration in relation to Article 8 will be addressed by decision-makers applying the new rules. 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."

36. At [30], having approved the two-stage approach set out by UTIAC in Izuazu (Article 8 – new rules) [2013] UKUT 0045 (IAC), he continued:

"The only slight modification I would make, for the purposes of clarity, is to say that if, after the process of applying the new rules and finding that the claim for leave to remain under the fails, the relevant official or tribunal judge considers it is clear that the consideration under the Rules has fully addressed any family life or private life issues arising under Article 8, it would be sufficient simply to say that they would not have to go on, in addition, to consider the case separately from the Rules. If there is no arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8, there would be no point in introducing full separate consideration of Article 8 again after having reached a decision on application of the Rules."

37. At [30], Sales J reiterated that:

"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."

38. At [35], Sales J emphasised that the important points were 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 ...".

39. In MF (Nigeria), the Court of Appeal was concerned with the deportation provision in the new Rules, in particular paras 398-399A. At [41]-[42] The Court expressed as "helpful" the statement of the law in Nagre. In MF the relevant Immigration Rule, namely para 398 had within it an "exceptional circumstances" criterion when the public interest in deportation would be outweighed. In that context, the Court of Appeal stated at [44]:

"We would, therefore, hold that the new rules are a complete code and the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence."

40. The first point turned upon the incorporation of the "exceptional circumstances" criterion within the rule itself. As a consequence, the deportation rules can be taken as a "complete code". That is not the case with Appendix FM and the private life rule in para 276ADE where "exceptional circumstances" are not specifically referred to but, nevertheless, arise for consideration under the Secretary of State's residual discretion outside the Rules (see Shahzad (Art 8: legitimate aim) [2014] UKUT 0085 (IAC)). The second point is of general application to deportation and other cases, namely that the exceptional circumstances criterion embeds an assessment of "proportionality" under Article 8 taking into account Strasbourg jurisprudence.
41. At [46] the Court of Appeal in MF confirmed that whether under the Rules (such as para 398) or as part of the Secretary of State's residuary discretion where an individual cannot meet the substance of the Rules:

"It is necessary to consider whether there are circumstances which are sufficiently compelling (and therefore exceptional) to outweigh the public interest in deportation."

42. In non-deportation cases, the final phrase requires adaption to read, "to outweigh the public interest in removal".
43. It is not clear whether the Court of Appeal in MF approved the "arguable case" criterion identified by Sales J in Nagre at [29] or, alternatively, the Court of Appeal saw the second-stage as being one which arose in every case where an individual could not succeed under the Rules. The language used in [46] that, "It is necessary to consider" exceptional circumstances might suggest that the court favoured the latter approach.
44. In any event, the "arguable case" criterion was approved and applied by UTIAC in Gulshan.
45. Prior to MM, the approach was, in my judgment, helpfully summarised by Green J in Ahmed at [38] as follows:

"First, as to the submission that in law a separate Article 8 assessment must occur outside of the rules it is apparent from the cases set out above that Article 8 considerations are embedded into the Rules and the Guidance such that if the SSHD applies those Rules and Guidance then, ordinarily, Article 8 considerations will have been fully catered for. This was the point made by Sales J in Nagre at paragraphs [27]-[29]. The Rules and the Guidance do leave open a discretion to the SSHD to permit exceptional circumstances to be taken into account. The case law makes clear that the concept of exceptional circumstances must be assessed from the perspective of proportionality and with Strasbourg jurisprudence in mind. See paragraph [30] above. In short the conventional Article 8 proportionality appraisal is one conducted within the framework of the Rules and the Guidance because they have been structured to isolate the relevant Article 8 factors and to enable officials applying the rules to take those considerations on board. In the present case no good arguable grounds have been advanced that there were factors particular to the Claimant that are not capable of being assessed from within the existing framework of rules and guidance and which therefore needed to be assessed outwith the Rules (see paragraph [31] and [32] above)."

46. Ahmed, and of course Gulshan, were decided before the Court of Appeal's decision in MM. In that case, as Mr Malik submitted, Aikens LJ at [128] did cast doubt on the utility of the "arguable case" criterion.
47. Mr Malik also relied upon MM, in particular at [134] in support of his submission that the "exceptional circumstances" consideration required an application of the "proportionality test" following Huang and the relevant Strasbourg case law.
48. A further helpful authority to which I was referred is the case of Ganesabalan, a decision of Michael Fordham QC (sitting as a Deputy High Court Judge). The decision in that case turned, in fact, on the point raised in Mr Malik's third submission – and for which he placed great reliance upon Ganesabalan – namely that the Secretary of State always has a duty to consider whether to exercise discretion outside the Rules. Leaving that issue aside for the present, the Deputy Judge helpfully sought to draw together the threads of the many authorities including MM. At [9], the judge summarised his view as to the correct legal approach in cases of this sort as follows:

"... Where 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."

49. The Deputy Judge then went on to identify what he considered to be "six key points" emerging from the case law.
50. First, he noted that in MF (Nigeria) the Court of Appeal had described the new Rules as a "complete code" but that was in the context of the deportation rule which incorporated an "exceptional circumstances" criterion. Where there was no equivalent "exceptional circumstances" provision, as with Appendix FM and para 276ADE, the Rules were not "exhaustive" and Article 8 issues had to be addressed through the Secretary of State's "residual discretion" applying the "proportionality test" guided by the approach in Huang and the Strasbourg case law.
51. Secondly, the Immigration Rules operate alongside the Secretary of State's guidance dealing with the exercise of discretion outside the Rules. That guidance required a consideration of "all relevant factors" and a consideration of whether the circumstances are such that "refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate". Taken together, the rules and guidance provide the "overall legal framework" for considering an individual's rights under Article 8.
52. Thirdly, the Secretary of State is under a duty to consider exercising discretion outside the Rules. (see Nagre at [14] and [34]; MF (Nigeria) at [44] and [46]; MM (Lebanon) [130] and Ahmed [26]).
53. Fourthly, the discretion outside the Rules variously described as "exceptional circumstances" or circumstances of "unjustifiable hardship" involves the Secretary of State applying a proportionality test by reference to Article 8 (see MF (Nigeria) at [44] and [45] and MM (Lebanon) [130] and [134]).
54. Fifthly, the Deputy Judge concluded that there was "no prior threshold" to the exercise of discretion based upon whether the individual could establish an "arguable" claim for the exercise of discretion based upon factors which have not already been assessed under the Rules. Those "threshold" factors were, rather, relevant to the nature of the assessment and the reasoning that was called for in considering the exercise of discretion outside the Rules. At [21], the Deputy Judge noted that the guidance recognised that the decision-maker was "required to consider relevant factors in order to determine whether there are exceptional circumstances." (my emphasis).
55. He continued:

"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."

56. Having set out Sales J's judgment in Nagre at [29] and [30], the Deputy Judge continued at [22]-[24]:

"22. .... 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."

57. At [25]-[27] the Deputy Judge analysed the decision of Green J in Ahmed and, in particular, what he said concerning the need to establish a "good arguable case" in order "to trigger an Article 8 review outwith the Rules". The Deputy Judge said this:

"25. .... 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 matter 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 stressed 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."

58. At [29]-[30] the Deputy Judge reached the following conclusion:

"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."

59. Sixthly, the Deputy Judge concluded that features or combinations of features addressed in full or in part within the Immigration Rule do not in principle become irrelevant to the exercise of discretion and the evaluation of proportionality under Article 8. The judge rejected Counsel for the Secretary of State's submission that circumstances "catered for by the Rules" were to be excluded from the consideration of the consideration of the exercise of discretion outside the Rules. She relied on two examples including the immigration status of the individual and the length of stay in the UK. At [33]-[34] the Deputy Judge said this:

"33. ... 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."

Discussion

60. In my judgment, the analysis in Ganesabalan is most helpful and I agree with, and gratefully adopt, it. It seeks to take into account the Court of Appeal's view in MM (Lebanon) and link that to the two-stage approach accepted in Nagre which was confirmed by the Court of Appeal in MF (Nigeria).
61. In my judgment, the Secretary of State (apart from 'complete code' situations) always has a discretion to grant leave outside the Rules. That discretion must be exercised on the basis of Article 8 considerations, in particular assessing all relevant factors in determining whether a decision is proportionate under Article 8.2. There is, in principle, no "threshold" criterion of "arguability". I respectfully agree with what Aikens LJ said in this regard in MM (at [128]). However that factor, taken together with other factors such as the extent to which the Rules have taken into account an individual's circumstances relevant to Article 8, will condition the nature and extent of the consideration required as a matter of law by the Secretary of State of an individual's claim under Article 8 outside the Rules. If there is no arguable case, it will suffice for the Secretary of State simply briefly to say so giving adequate reasons for that conclusion. At the other extreme, where there are arguable good grounds that the Rules do not adequately deal with an individual's circumstances relevant in assessing Article 8, the Secretary of State must consider those circumstances and identifiably carry out the balancing exercise required by proportionality in determining whether there are "exceptional circumstances" requiring the grant of leave outside the Rules under Article 8.
62. In any event, as is made plain in Ganesabalan, a failure to consider whether to exercise discretion outside the Rules will, in itself, be unlawful.
63. That said, a failure to consider the exercise of discretion or failing properly to consider the relevant factors outside the Rules, though unlawful, will not result in the court granting any relief if the decision would "inevitably" have been the same (see Ganesabalan at [37] and Haleemudeen at [61]).
64. Turning to the circumstances of these claimants, there were features of their applications which raised Article 8 issues which, in my judgment, were not wholly resolved by an application of the Immigration Rules. First, they had both arrived in the UK as children aged 10 and 11. Secondly, they had lived with their aunt who had acted as their de facto mother whilst they attended school. They continue to live with her, even as adults, prior to going to university. Whilst their relationship with their aunt does not fall within Appendix FM, there is at least an arguable case that their pre-18 relationships and their post-18 relationships given their continued residence with their aunt amounted to "family life" for the purposes of Article 8. There is no "blanket rule" that adult children cease to have family life with a parent (here de facto their aunt) simply by reaching the age of 18 (see Ghising (Family life – adults – Gurkha policy) [2012] UKUT 00160 (IAC) at [53]-[55] and [58]; subsequently approved by the Court of Appeal in R (Gurung and Others) v SSHD [2013] EWCA Civ 8 at [46]). Thirdly, the claimants have spent a significant period of time, albeit unlawfully, in the UK during formative and important years of their development since they were aged 10 and 11 respectively. Fourthly, there was evidence before the Secretary of State that the claimants' mother had died in Nigeria in 2003 shortly before the claimants came to the UK in January 2004 and the claimants' father had ceased to have any involvement in their lives since that time.
65. In my judgment, these factors required consideration by the Secretary of State as to whether the claimants should be granted leave outside the Rules. They required the Secretary of State to engage with the exercise of her discretion outside the Rules and to consider whether there were "exceptional circumstances". It would not have been sufficient simply to state there are no "exceptional circumstances".
66. To this extent, I accept Mr Malik's submission that the Secretary of State was required to give separate consideration to Article 8 in her decision letters. As I have already noted, Mr Malik did not suggest that that consideration required a rigid application of the five-stage test in Razgar. He was right not to do so. It is the substance of the consideration and not its form which is important. I do not consider that he can gain any assistance from the decisions in Huang and Patel and others the facts of which arose before the new Rules came into existence. The House of Lords and Supreme Court were not considering the relationship between the new Rules and Art 8.
67. In my judgment, it would be sufficient for the Secretary of State to take the factors I have identified into account in assessing whether there were "exceptional circumstances" applying the criterion of whether the circumstances were "compelling" such as to produce "unjustifiably harsh consequences" so as to outweigh the public interest.
68. Did the Secretary of State give adequate consideration to the claims outside the Rules in her two decision letters? Further, if the Secretary of State's decision failed to do so was it nevertheless inevitable that the claims would fail such that the court should not grant relief.
69. It is convenient to address these issues more fully under the third basis upon which Mr Malik put the claimants' challenges – the Secretary of State failed to consider whether to exercise discretion outside the Rules. However, as I make clear below, in reaching a decision in respect of C2 the Secretary of State did not consider whether there were "exceptional circumstances". I am equally persuaded that the consideration in the covering letter in respect of C1 was wholly inadequate, if it did indeed amount to a consideration of "exceptional circumstances" at all. There were no adequate assessments made outside the Rules and, as a result, in my judgment both decisions are unlawful. Subject to the 'inevitability' of outcome point dealt with below, the decisions must be quashed.
70. I now turn to consider that third basis upon which Mr Malik put the claimants' challenges.

Consideration of Exercise of Discretion outside the Rules

71. Mr Malik submitted that the Secretary of State had also acted unlawfully by failing to consider whether to exercise discretion outside the Rules in relation to both C1 and C2. He relied upon Ganesabalan where a failure to consider whether there were "exceptional circumstances" was held to be unlawful.
72. In relation to the decision made on 28 March 2013 in respect of C2, it is not suggested that the Secretary of State considered whether to exercise discretion outside the Rules. It is clear from the decision letter that she did not do so. In relation to the decision of 7 February 2013 in respect of C1, the decision letter also made no reference to "exceptional circumstances" but, as I set out earlier (above para 11), the covering letter stated that C1's case had been considered on an "exceptional basis". Ms Rowlands submitted that that was an adequate consideration in relation to C1 and it should be "read across" in relation to the decision in respect of C2 on 28 March 2013.
73. I do not accept Ms Rowlands' submission. First, it is quite impossible to "read across" any consideration of C1's circumstances on an "exceptional basis" in the decision letter of 7 February 2013 to that of C2 when the decision was made on 28 March 2013. It is clear from the signatures on the decisions that the two decisions were made by different officials in the Home Office. There is nothing to suggest that the official dealing with C2's application turned his or her mind to the question of whether there were "exceptional circumstances" and that, in my judgment, was unlawful. Secondly, in principle I do not accept that decisions made some seven weeks apart in relation to C1 and C2 respectively should be read together so as to incorporate any decision made in C1's letter into that of C2. In my judgment, both C1 and C2 were entitled, as a matter of law, to the separate and individual consideration of their circumstances. That, presumably, was the reason why a single decision was not made applying to both claimants.
74. For that reason, the decision in respect of C2 is unlawful.
75. In any event, as I have already pointed out, the consideration of C1's claim in the covering letter goes nowhere near an adequate consideration of her circumstances (let alone those of C2). Even assuming that the Secretary of State could carry out her legal obligation to consider the exercise of discretion outside the Rules not in the decision letter itself but rather in a covering letter, the bald assertion that C1's case has been "considered on an exceptional basis" cannot in the circumstances of C1 be seen as an adequate assessment of her circumstances under Article 8 outside the Rules. The covering letter apart from that bald assertion does little more than state that C1 does not have the right to remain "on an exceptional basis" having made submissions based on her family and private life in the UK. I have already identified earlier a number of factors which, in my view, required consideration outside the Rules. In my judgment, more was required of the Secretary of State than simply to assert she had considered C1's claim on an exceptional basis and C1 had no right to remain on an exceptional basis. In my judgment, the Secretary of State had, as a minimum, to engage with C1's circumstances that merited consideration outside the Rules. A fortiori there was no consideration (adequate or otherwise) of C2's claim outside the Rules.
76. For these reasons, therefore, I am satisfied that the decision letters of 7 February 2013 and 28 March 2013 did not lawfully consider C1 and C2's claims to remain in the UK outside the Immigration Rules under Article 8.
77. Although Ms Rowlands submitted that any error of law was immaterial because the claimants' claims were so weak they would inevitably fail, that is a high threshold to satisfy. Given the age at which C1 and C2 came to the UK, their integration into the UK through school from the age of 10 and 11 and their potential family life with their aunt, I am simply unable to conclude with any degree of confidence that their claims would necessarily fail. I do not say that their claims are strong or must inevitably succeed but the two decision letters do not, in my judgment, grapple adequately (or at all) with their individual circumstances and are therefore unlawful. As the Deputy Judge pointed out in Ganesabalan at [45]:

"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."

78. However, the Secretary of State has not done so. In my judgment, the claimants were entitled to a consideration of their individual circumstances outside the Immigration Rules.

Conclusion

79. For these reasons, the claim for judicial review succeeds and I quash the Secretary of State's decisions of 7 February 2013 and 28 March 2013 refusing the claimants leave to remain.
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