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
		8th December 2014

Andrew Thomas QC :

1. This is an application for judicial review of the Secretary of State's decision refusing the Claimant leave to remain in the United Kingdom. The Claimant relies upon Article 8 ECHR and in particular the family life which he enjoys in this country with wife, his mother and his younger half-sister. The Claimant argues that the refusal of his application was irrational and unlawful.
2. The Claimant also relies upon an error of law in the determination of his application. By virtue of the June 2012 Statement of Changes in Immigration Rules (HC 194), revised rules came into force on 9th July 2012 ('the new rules'). The Claimant's application had been lodged before that date and transitional provisions indicated that the old rules ought to be applied to pending applications. The initial decision letter issued in March 2013 shows that the Defendant determined the application solely in accordance with the new rules. Although the decision has since been reconsidered twice by the Defendant on broader Article 8 grounds the Claimant argues that the later decisions are still influenced by the irrelevant consideration of the new rules. The issue is whether that has made a material difference to the outcome of his application.

Background

3. The Claimant is now 25 years old (born on 16th June 1989). He is a Bangladeshi national. He came to the United Kingdom as a visitor in June 2002, just a few days before his 13th birthday. His mother had already been living in the UK for two years following the breakdown of her marriage to the Claimant's father. The Claimant had in the meantime been living with grandparents in Bangladesh.
4. In 2003 the Claimant was granted further leave to remain as a dependent of his mother, who by then had a student visa. His mother's student visa expired on 31st January 2004. Since that date the Claimant has remained living in the UK without leave. He made an application for indefinite leave to remain in 2009 which was refused in February 2011. A request for reconsideration was refused in July 2011.
5. On 9th February 2012 the Claimant made an application for leave to remain based on Article 8 ECHR grounds. He relied on a number of matters. He had (by that date) been in the UK for 10 years. He came to the UK lawfully as a child. Although his leave to remain expired with his mother's visa in 2004, his mother has since obtained leave to remain. He was not included in her successful application as he was by then over 18. He is estranged from his father in Bangladesh having suffered what he describes as emotional abuse. He has an established family life in the UK with his mother and step-father. He has a half-sister born in 2004 with whom he has a close bond. He says that there is mutual dependence and his removal would impact on the family life of other members. He was educated in English schools between the ages of 13 and 18 and would have gone on to university had his immigration status been regularised. He has been in a stable relationship with a British national, his girlfriend Monisha Chowdhury (now his wife) since 2008. He is fully integrated into UK life and has no family ties left in Bangladesh. He argued that it would be unreasonable to require him to enjoy family life elsewhere when all his immediate family are now in the UK.
6. The Claimant's application was refused. The reasons were set out in a notice of decision dated 21st March 2013. The letter begins:

"Consideration has been given to your family life under Article 8 which from 9th July 2012 falls under Appendix FM of the rules."

However, the Claimant's application had been lodged in advance of the implementation date for the new rules, including Appendix FM. The Statement of Changes (HC 194) included the following:

"Implementation … 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".

The application of this provision to Article 8 claims was considered by the Court of Appeal in Edgehill & Ors v SSHD [2014] EWCA Civ 402. For reasons which I will set out below, I accept that that the Claimant's application should have been considered under the old rules. The real issue is whether the error has made a material difference to the outcome.

7. The March 2013 letter shows that the initial determination of the Claimant's application was made by way of the application the new rules, in particular paragraph R-LTRP 1.1(d) of Appendix FM. The decision on whether it was reasonable to expect the Claimant and his wife to relocate to Bangladesh was determined by the application of the 'insurmountable obstacles' test in paragraph EX.1. The decision on whether refusal would be a disproportionate interference with the Claimant's private life was determined in accordance with paragraph 276ADE. Beyond that, the letter did not contain anything to show that Article 8 issues had been considered other than by the narrow application of the new rules.

History of the Present Claim

8. The decision was challenged in a pre-action letter of claim dated 17th April 2013. The claim for judicial review was issued on 26th June 2013. The grounds were that the Defendant had failed to give adequate consideration to Article 8 arguments outside the application of the new rules. The application of the transitional provisions was not expressly raised. However, the grounds as drafted are sufficiently wide to permit the Claimant to advance this argument. The Defendant has not taken issue with that and has already pre-empted the argument in the Detailed Grounds of Defence.
9. Permission was granted by HHJ Burrell QC on the 4th of November 2013. By a consent order dated 1st May 2014, proceedings were stayed to permit reconsideration by the Secretary of State. Since that date, two further notices of decision have been issued, on 9th June 2014 and 9th September 2014 respectively. These letters confirm the original decision but on additional grounds. Although these letters post-date the grant of permission, both parties asked me to take these further grounds into account in determining the claim for judicial review. I am satisfied that there is no prejudice to the Claimant and that this is a case where a flexibility of approach is appropriate.
10. The letter of 9th June 2014 again refers to Appendix FM R-LTRP 1.1(d), paragraph EX.1 and paragraph 276ADE. The decision under the new rules was confirmed. The letter additionally considered Length of Residence under both parts of paragraph 276B, applying the old rules to that issue. The Claimant had not qualified by that route as he did not have either 10 years lawful or 14 years unlawful residence.
11. The letter went on to consider, under the heading of 'exceptional circumstances', whether there were any particular circumstances to warrant granting leave to remain on Article 8 grounds outside the rules. The letter states:

"The Secretary of State has the right to control the entry of non-nationals into its territory and Article 8 does not mean an individual can choose where they wish to enjoy their family life when it can be reasonably expected for them to continue that family life elsewhere. Article 8 will not be breached as long as it is deemed proportionate interference to expect you to return to Bangladesh. Consideration of any barriers to your return and to the private lives you have established in the United Kingdom have been given, and we are satisfied that you have provided no compelling or compassionate reasons why you should be granted leave to remain outside the rules.

Your application has been considered under Article 8 of the Human Rights Act [sic]. The Secretary of State has given careful consideration to your case and is satisfied that the decision does not represent a breach of your Article 8 rights. In reaching this decision the Secretary of State notes that there is nothing to prevent you exercising a right to a family life in Bangladesh, and there is also nothing to prevent you from returning to Bangladesh and making the appropriate application for entry clearance to return to the United kingdom.

Whilst this may involve a degree of disruption to your family life, this is considered to be proportionate to the legitimate aim of maintaining effective immigration control. It has been decided that a grant of leave outside the rules is not appropriate."

12. The third notice of decision is dated 9th September 2014. Its contents are described as supplemental reasons. Its purpose appears to have been to set out in greater detail the reasons for the Defendant's determination that it was reasonable to require the Claimant to return to Bangladesh notwithstanding his ties in the UK and in particular his marriage. The letter refers to a consideration of whether there may be insurmountable obstacles to the Claimant and his wife enjoying their family life in Bangladesh. It acknowledged the fact that Mrs Amin would experience some difficulties in adjusting to a change of culture in Bangladesh, including language barriers. It referred to paragraph 276ADE(vi) and concluded that the Claimant has not shown that he has lost all social, cultural and family ties to Bangladesh. The letter went on to consider 'exceptional circumstances' including the fact that the Claimant's mother and half-sister have leave to remain in the UK. The letter concludes:

"Having regard to all the evidence the Secretary of State is not satisfied that there is something more than normal emotional ties between him and his mother, sister and step-father. He [is] an adult and may lead an independent life in Bangladesh. He is married. In any event the fact that he is enjoying a family life with his mother, sister and step-father is not a good reason to grant him leave to remain. … He and his wife started their relationship in 2008 knowing that he had no permission to reside in the UK and may be removed at anytime. It is reasonable to expect his wife to relocate with him to Bangladesh. … The Secretary of State is not satisfied that refusal of leave to remain, taking full account of all considerations and evidence, prejudices your client's private and family life and that of his family members in the UK in a manner sufficiently serious to amount to a breach [of] Article 8."

Accordingly, the letter discusses the issue of relocation by reference to two different formulations of the test: the test of insurmountable obstacles and the test of whether it is reasonable to expect the Claimant's wife to relocate with him to Bangladesh. The conclusion was the same in both cases.

The Submissions of the Parties

13. On behalf of the Claimant, Mr Balroop argues that the decision refusing the Claimant's application for leave to remain is flawed because it takes into account irrelevant matters, namely the new framework of the Immigration Rules in Appendix FM and paragraph 276ADE. He acknowledges that judicial review will not succeed if the Court is satisfied that even without the irrelevant factor did the decision would be the same, but the decision maker has a high hurdle to establish that it did not affect the outcome (see R (FDA) v Secretary of State for Work & Pensions [2012] EWCA Civ at paras 67, 68 and 81).
14. Mr Balroop submitted that the decision was flawed because the effect of returning to Bangladesh was considered by reference to the insurmountable obstacles test in paragraph EX.1 which is more onerous than the broader test discussed in VW (Uganda) v SSHD [2009]EWCA Civ 5 at para 19 and Izuazu [2013] UKUT 00045 at paras 58-59. The correct formulation in the present case should have been whether in the light of all material facts it is reasonable to expect the Claimant and his wife to leave the UK and settle in Bangladesh. He submitted that had the correct test been applied the application would have succeeded.
15. Mr Balroop also addressed me on the application of Section 19 of the Immigration Act 2014 which, with effect from 28th July 2014, brings into effect Sections 117A and 117B of the Nationality, Immigration and Asylum Act 2002. These provisions set out principles to which a Court or tribunal must have regard when determining Human Rights issues in relation to immigration decisions. In particular, Section 117B(4) states:

"(4) Little weight should be given to (a) a private life or (b) a relationship formed with a qualifying partner which is established by a person at a time when that person is in the United Kingdom unlawfully".

Mr Balroop submits that it would be unfair to give retrospective effect to these provisions.

16. Finally, the Claimant submits that the Defendant has failed to comply with her own policy by refusing the Claimant's request for the issue of a removal direction so as to trigger a right of appeal to the First Tier Tribunal.
17. On behalf of the Defendant, Mr Malik argued that the new rules provide a framework for considering whether refusal of leave to remain would be a disproportionate interference with Article 8 rights. In the present case, the new rules provided a starting point to the Defendant's consideration of those issues. In her two subsequent decisions she has then gone on to give full and independent consideration to the merits of the Article 8 claim, consistent with the decisions in Nagre v SSHD [2013] EWHC 720 (Admin) and MF (Nigeria) [2013] EWCA Civ 1192. Having done so, she has concluded that his removal would be proportionate in all the circumstances. The Claimant has therefore not been prejudiced by the reference to the new rules. The decision would have been the same in any event.
18. He relied on the decision of the Supreme Court in Patel v SSHD [2014] 1 AC 651, in which Lord Carnwath JSC (at para 54) described the application of the rules as 'no more than the starting point for the consideration of Article 8'. In support of that conclusion, Lord Carnwath himself quoted the well-known passage from the speech of Lord Bingham in Huang [2007] 2 AC 167, where he said:

"…an applicant's failure to qualify under the rules is for present purposes the point at which to begin, not end, consideration of the claim under article 8. The terms of the rules are relevant to that consideration, but they are not determinative."

19. Mr Malik argued that all relevant matters have now been taken into account. The Defendant has demonstrated that she has given proper consideration to whether requiring the Claimant and his wife to relocate to Bangladesh would amount to a disproportionate interference with Article 8 rights. The Secretary of State was entitled to give weight to the fact that their relationship was formed at a time when the Claimant did not have any lawful right to remain in the UK.

Discussion

20. The application of the new rules to existing applications was considered by the Court of Appeal in Edgehill & ors v SSHD [2014] EWCA Civ 402. The Court rejected the argument advanced by the Secretary of State that the transitional provisions did not apply to Article 8 claims. It is clear from that decision that the new rules, encapsulated in Appendix FM, are not applicable to pending cases. A differently constituted Court of Appeal reached the opposite conclusion on a parallel issue in Haleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558. However, as Mr Balroop pointed out, neither the transitional provisions nor the decision two weeks earlier in Edgehill appear to have been cited in that case.
21. Both parties submitted, in my view rightly, that I should adopt the approach taken in Edgehill. The real issue is whether the error has made any difference to the outcome. Mr Malik relied upon paragraph 33 of Jackson LJ's judgment in that case, in which he said:

"A mere passing reference to the 20 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."

22. In R (Singh) v SSHD [2014] EWHC 2330 (Admin), Nicol J was faced by similar arguments. He said the following:

11. Mr Roe argued that there could be no place in a decision on a pre-9 July 2012 application for any reference to the structure of decision-making contained in the new rules. There is some support for that in Edgehill as I have shown, although a different approach has been taken by a different constitution of the Court of Appeal in Haleemudeen … at paragraph 40 and by Philip Mott, QC, Sitting as a Deputy Judge of the High Court in Rafiq v Secretary of State for the Home Department [2014] EWHC 1654 (Admin).

12. In my judgment, it is not necessary for me to resolve this difference. I shall adopt the approach most favourable to the claimant, that is the one in Edgehill. Nonetheless, Mr Roe accepts that he can cannot succeed if the decision inevitably would have been the same even if the Secretary of State had paid no attention at all to the criteria in the new rules.

23. A similar approach was taken by Mr Mark Ockleton QC in Jallow v SSHD [2014] EWHC 3502 (Admin), which was another case of an application filed before the implementation date. The Deputy Judge held that Appendix FM had no application in such a case.

"… The reference to Appendix FM and to the calculus of decisions by reference to that appendix in the Secretary of State's letter in the present case was an error in law. She should have gone from the non-compliance with the rules directly to consider whether the claimant had an Article 8 claim. If that then was an error of law, the question is whether it is such as to lead to a decision quashing the decision letter or whether the decision letter is good or good enough despite it. [Counsel for the Claimant] argues that it is simply impossible to know what judgment the Secretary of State would have made if she had, instead of applying Appendix FM properly turned her mind to the extensive jurisprudence on Article 8. Under those circumstances, it is necessary to enquire precisely what the Secretary of State was being asked to do in the present application, and to identify what factors the Secretary of State was asked to take into consideration."

The Deputy Judge held that there was there was no evidence of anything within the Claimant's application which demanded consideration outside the rules, or which could conceivably have led to a conclusion in her favour under Article 8.

24. It seems to me that there are three central issues to resolve in the present case:

a. Has the Defendant given full consideration to the Article 8 grounds advanced by the Claimant in his application?

b. Would the Defendant's decision have been different if the new rules had not been taken into account?

c. Is the Defendant's conclusion irrational or otherwise unlawful on Article 8 grounds?

Conclusions

25. In my judgment, the Defendant has now given full and proper consideration to all matters raised in the Claimant's application. The March 2013 decision letter was plainly inadequate but matters have moved on since then. Having agreed to a stay to allow for further consideration, the parties were agreed that I should take the Defendant's additional reasons for upholding the decision into account. It is clear to me that the June and September 2014 letters show that all matters raised by the Claimant in his application have been considered, both separately and in respect of their cumulative effect.
26. I am also satisfied that the consideration of the new rules has not made a material difference to the Defendant's decision. This application would not have succeeded under the old rules. The Claimant's case has always been outside the scope of the rules, based on the direct application of Article 8 principles. His argument is that the refusal to grant him leave to remain is unlawful as it amounts to a disproportionate interference with his right to family life and his right to private life. Those arguments have now been addressed in full by the Defendant.
27. The June 2014 and September 2014 letters show that this part of the decision was taken on the basis of established principles. There is nothing in them to suggest that this part of the assessment was distorted by taking new rules or policies into account. I am satisfied that ultimately the exercise which has been performed was the same as would have been required prior to 9th July 2012, namely weighing the general considerations of public policy against an assessment of the Article 8 factors in the particular circumstances of the Claimant's case. I am satisfied that the correct test was applied. In particular, I note that the issue of relocation has been addressed both by the test of insurmountable obstacles and by the test of whether it is reasonable to require the Claimant and his wife to relocate.
28. The Claimant argues that the Defendant's decision in this case was one which no reasonable decision-maker could possibly have reached and that it amounts to an unlawful interference with his Article 8 rights. In a challenge of this kind the Court must consider for itself whether the decision is a disproportionate interference with the Claimant's Article 8 rights and therefore unlawful. In so doing, the Court must have due regard to the general policies which the Defendant has sought to uphold, including the need for immigration controls which are workable, predictable, consistent and fair.
29. The Claimant is an independent adult. I recognise that in exceptional circumstances the relationship between an adult child and his parents, or between siblings, can give rise to a strong claim based on family life. In this case, whilst the Claimant has a close emotional bond with his mother, his half-sister and his step-father there is no evidence of mutual dependence in any other significant respect. The Claimant lived in Bangladesh until the age of 13 years. There are no strong language or cultural barriers for him to overcome, despite the fact that he has now been in the UK for many years. He is fit, intelligent and capable of finding employment.
30. The Claimant is now married. His wife was born and raised in the UK. However, where a relationship is formed at a time when one of the parties does not have a lawful right to remain it will only be in exceptional circumstances that removal would be incompatible with Article 8. That is a well established principle (see for example Biao v Denmark [2014] (App 38590/10) at para 53) and reference to Section 117B(4) of the 2002 Act (as amended) is superfluous. I take into account the compassionate reasons which the Claimant has advanced. However, I am not persuaded to that rejection of the claim amounts to a disproportionate interference with Article 8 rights. The Defendant's decision to reject the application cannot be characterised as irrational or unlawful.
31. Mr Balroop's final argument was that the Defendant has failed to comply with her own policy in that she did not respond to a request for the issue of a removal decision, which would have triggered a right of appeal. This is not in fact a ground which the Claimant had advanced in his Claim for Judicial Review, nor does he have leave to pursue it.
32. In R (Daley-Murdock) v SSHD [2011] EWCA Civ 161 it was held that the Secretary of State is not obliged to issue an appealable decision simultaneously with the rejection of an application for leave to remain. I do not consider it arguable that the failure to issue such a decision in March 2013 was unlawful, nor is it arguable that there has been an unlawful delay thereafter bearing in mind that the substantive decision has been challenged by way of judicial review. The Defendant is entitled to maintain her general policy that it is the responsibility of the Claimant himself to comply with her decision refusing him leave to remain.
33. For the reasons the claim for judicial review is dismissed.