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
		20 February 2015

Philip Mott QC :

1. This is a claim by six members of a family of Pakistani nationality. They consist of the father, mother and four children, as follows:

i) Saleem Javed, father, born on 17 May 1967, now aged 47.

ii) Aneesa Sheikh, mother, born on 10 March 1970, now aged 44.

iii) Noman Sheikh, son, born on 26 October 1989, now aged 25.

iv) Waleed Sheikh, son, born on 23 July 1993, now aged 21.

v) Bisma Sheikh, daughter, born on 28 December 1994, now aged 20.

vi) Sameen Sheikh, daughter, born on 17 September 1999, now aged 15.

2. Their immigration history, in short, is as follows:

i) 24 September 2006: Saleem Javed entered the UK with his family with entry clearance as an exempt diplomat. He had a job as a cashier at the Pakistan Embassy. The family was given leave to enter on that basis for five years, to 8 June 2011.

ii) 10 April 2010: Saleem Javed left his employment and his leave was curtailed so that the diplomatic exemption expired after 90 days, on 2 July 2010. As a result his family's leave was similarly curtailed.

iii) 7 June 2011: The family made application for leave to remain outside the Immigration Rules, on human rights grounds. This was rejected on two occasions for errors but resubmitted.

iv) 25 October 2011: The applications were refused with a right of appeal and removal papers were served. The Claimants lodged appeals with the First-tier Tribunal ["FTT"].

v) 7 February 2012: The appeals were dismissed by the FTT. Permission to appeal was thereafter refused by the FTT and the Upper Tribunal so that on 22 March 2012 they became appeal rights exhausted.

vi) 22 March 2013: Further applications were made for leave to remain outside the Immigration Rules.

vii) 9 May 2013: These applications were refused with no right of appeal.

3. The Claimants challenge these decisions of 9 May 2013. The claim form was lodged on 7 August 2013. Permission was granted by Ben Emmerson QC, sitting as a Deputy High Court Judge, on 12 March 2014 on consideration of the Claimants' papers and the Defendant's acknowledgement of service.
4. On 6 October 2014 and 12 November 2014 supplementary decision letters were issued confirming the refusals, and dealing specifically with the Article 8 claim which the deputy judge considered was arguable. As a result, I have to look at the two sets of decision letters together.

Preliminary issues

5. Mr Ahmed, who appeared for the Claimants, raised technical points in his skeleton argument for the first time. Mr Mitchell, for the Defendant, did not object to them and I must deal with them. They concern the form and ambit of the decision letters. The position, as it appears from the bundle of documents before me, is as follows:

i) A covering letter dated 9 May 2013 was sent to the Claimants' solicitors and referred to Saleem Javed, Aneesa Sheikh and Sameen Sheikh. It stated that their applications had been refused for the reasons set out in enclosed notices. Two such notices were enclosed.

ii) One enclosed notice was addressed to Saleem Javed, giving his correct date of birth, but the reasons relate to the requirements for leave to remain as a child, and refer to "your parents' applications" which had been refused. It is clear that this notice should have been addressed to Sameen Sheikh.

iii) The other enclosed notice was addressed to Aneesa Sheikh, and dealt with her application under the Partner Route and under the Parent Route. Although expressed as relating only to her, Mr Ahmed agreed that the wording and reasoning was apt to apply also to her husband, Saleem Javed.

iv) There were separate covering letters and enclosed notices, also dated 9 May 2013, sent to the same solicitors and relating to Waleed and Noman Sheikh. Each dealt with his claim in respect of private life, as young men of full age.

v) The application of Bisma Sheikh, who was then over 18, was returned as invalid for non-payment of the appropriate fee on 2 May 2013. This was challenged by the Claimants' solicitors on 5 May 2013, but that appears to have got no further. Thus there never was a substantive decision in respect of Bisma Sheikh, because there was allegedly no valid application. There is no claim in these proceedings that this decision was unlawful.

vi) On 28 May 2013 the Claimants' solicitors wrote to the defendant asking for a review of the decisions. From this point until the skeleton argument of Mr Ahmed for this hearing it was assumed that the decision letters taken as a whole amounted to a refusal of all the applications, or at least that the decisions which had been made were sufficient to determine the fate of the whole family.

vii) The supplementary decisions of 6 October and 12 November 2014 related to the same five members of the family, excluding Bisma Sheikh.

6. Mr Ahmed submitted in his skeleton argument that there is no decision in relation to Sameen Sheikh which was served on her or her parents. At the hearing he went further, and submitted that the decision apparently served in relation to Saleem Javed was a nonsense, as it was only appropriate to a child, so should be treated as no decision at all.
7. Firstly, it is clear that there has been no substantive decision in relation to Bisma Sheikh, and there is no challenge to the rejection of her application. Accordingly I have no jurisdiction to make any order in relation to her immigration status. Since she was over 18 when the other family applications were made, her exclusion cannot affect the validity of the decisions in other cases.
8. Secondly, the absence of a notice giving reasons expressly directed at the application of Sameen Sheikh in May 2014 is unfortunate, but is easily explained. There was one set of reasons directed at the parents and a separate set of reasons directed at her as their child. This is both obvious now and must have been obvious then, for it gave rise to no complaint from the Claimants' solicitors. It is, in my judgment, properly treated as a typographical error in the headings of the decision letters which has caused no prejudice and does not in any way invalidate them.

Substantive issues

9. In relation to the substance of the decisions, Mr Ahmed raised two points. Firstly, he said that the decisions were unlawful, irrational and disproportionate because the decision-maker had failed to engage with the factual content of the applications, and therefore there was no proper exercise of the discretion to grant leave to remain even outside the current rules. Secondly, he submitted that the defendant was wrong to impose a test of exceptional circumstances, which was referred to in the supplementary decision letters.
10. In the end it seems to me that these are in reality two ways of arguing that the decision letters failed to consider properly the Article 8 claims of this family, and should therefore be struck down.

The framework of the Immigration Rules

11. By the time of the decisions in May 2013 the new rules for family life in Appendix FM and the new rules for private life in Paragraph 276ADE of the Immigration Rules were in force. It is well established that these changes were intended, so far as possible, to incorporate the Strasbourg jurisprudence in relation to Article 8 claims into the Rules, see for example R (Nagre) v SSHD [2013] EWHC 720 (Admin), the oft-cited decision of Sales J as he then was. In that case a broad challenge to the legality of the new rules failed. It was recognised, however, that there may be cases in which a right to remain based on Article 8 may be established, even though falling outside the new rules. The guidance issued by the Defendant referred to "exceptional circumstances" as a shorthand way of covering such cases. In relation to the decision-making process, Sales J said this:

"29. ….. 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.

30. ….. if, after the process of applying the new rules and finding that the claim for leave to remain under them 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."

12. The term "exceptional circumstances" which appears in the departmental guidance was considered by the Court of Appeal in MF (Nigeria) v SSHD [2013] EWCA Civ 1192. The court was dealing with a deportation case, but the relevant features of the guidance were the same. It agreed that the term did not seek to revive the discredited exceptionality test, but involved the application of the proportionality test as required by the Strasbourg jurisprudence. It was unhelpful to debate whether this was a one stage or a two stage test. The new rules were a complete code, but required a two stage approach to ensure that exceptional cases were not overlooked (see paragraphs [39] to [46]). The decision of Sales J in Nagre was referred to with apparent approval (paragraph [41]).
13. This is not a deportation case, and the rules applicable to both family life and private life considerations do not contain "exceptional circumstances" provisions. To that extent they are not a complete code, but the published guidance which does refer to "exceptional circumstances" is a part of the overall code (see the analysis of recent authorities by Michael Fordham QC, sitting as a Deputy High Court Judge, in Ganesabalan v SSHD [2014] EWHC 2712 (Admin)).
14. Consideration of the overriding provisions of Article 8 involves the application of a proportionality test.

The decision letters

15. The May 2013 decision letters went through the various stages of the new rules, in relation to Appendix FM and Paragraph 276ADE as appropriate. It is not submitted that the analysis was wrong in any respect, that any of the Claimants could have succeeded under the terms of those rules, or that any rule was omitted from consideration. The applications could only succeed, if at all, as exceptional cases caught by the overriding provisions of Article 8.
16. Those decision letters, although issued after the decision in Nagre, do not indicate any consideration of the overriding provisions of Article 8, or whether these were even arguably exceptional cases. Accordingly they were liable to challenge unless it could be said that the decision would inevitably have been the same. The deputy judge in granting permission thought it arguable that the combination of the length of residence of the two youngest children, the matrix of family, community and educational ties, and the finding of the FTT that the father did not knowingly act in breach of immigration controls in delaying his first application for leave to remain made the family's circumstances exceptional.
17. As a result the supplementary decision letters were issued in October and November 2014. They deal both with the overriding provisions of Article 8 and the duties imposed by section 55 of the Borders, Citizenship and Immigration Act 2009. Whether they deal with those questions properly and adequately is now at the heart of this challenge.

Legal issues

18. Before considering the overall evidence in detail, I should refer to two Upper Tribunal authorities relied upon by Mr Ahmed, JO & Others v SSHD [2014] UKUT 00517 (IAC) and R (Oludoyi) v SSHD [2014] UKUT 00539 (IAC).
19. JO was a decision of the President, McCloskey J. The headnote states that section 55 of the 2009 Act requires a decision-maker to be properly informed of the position of a child, and to conduct a careful examination of all the relevant information and factors. In that case the eldest child had lived in the UK for at least 7 years prior to the application, and could be brought within Appendix FM, paragraph EX.1, if it was not reasonable to expect the child to leave the UK. The mother gave evidence of an irreparable fracture between herself and her family in Nigeria, so that she had no resources or means of support or survival if returned to Nigeria. The decision-maker, however, had not taken steps to obtain this information and was therefore not properly informed. On the contrary, the decision letter referred to the mother being able to support her children while they became used to living in Nigeria. The decision had been upheld by the FTT, but unsurprisingly the appeal was allowed by the Upper Tribunal.
20. That case is very far removed on its facts from the present. It is not suggested here that there was any information which was not available to the decision-maker, or that further specific investigation was required. The challenge is simply that the information available was not clearly considered by the Defendant.
21. Oludoyi is a decision of Upper Tribunal Judge Gill. The headnote rejects the suggestion that Nagre sets some threshold test before Article 8 needs to be considered. If that was being suggested, I agree that it goes beyond the decision in Nagre. The passages in Nagre cited above deal with the extent to which detailed reasons are required, and do not fix a new threshold before the overriding provisions of Article 8 need to be considered. Indeed, it would be impossible to decide whether there was an arguable case that the applicant's circumstances were exceptional so as to invoke Article 8 without considering Article 8. The actual decisions in Oludoyi refusing leave were upheld as lawful, despite the fact that the decision-maker had not embarked on a full Razgar analysis of the evidence.
22. Neither decision, in my judgment, casts doubt on the practical guidance by Sales J in Nagre as to the extent of detail required in a decision letter. If they did, they would be in conflict with the Supreme Court decision in Zoumbas v SSHD [2013] UKSC 74. The judgment of Lord Hodge sets out a set of seven principles in relation to children cases which I do not need to repeat here. Lord Hodge went on to add the following significant matters:

i) At least in the context of extradition, there may be circumstances in which the weight of another primary consideration can tip the balance and make the interference proportionate even where it has very severe consequences for children (paragraph [13]).

ii) Section 55 does not require the Secretary of State in every case to consider the children's best interests first and then to address other considerations which might outweigh those interests (paragraph [19]).

iii) A decision letter setting out the conclusions briefly does not necessarily give rise to any inference that there has not been careful consideration (paragraph [22]).

iv) The Secretary of State does not have to record and deal with every piece of evidence in her decision letter (paragraph [23]).

v) Other things being equal, it may be in a child's best interests to stay in the UK, but other things are not equal where the child and its parents are not British citizens (paragraph [24]).

The facts

23. I turn now to consider the underlying facts. The starting point must be the decision of the FTT in February 2012. It heard evidence from Saleem Javed and a son described as the third appellant. The heading of the decision suggests that this was Noman Sheikh, but the references to the University of Westminster suggests that it may have been Waleed Sheikh. The ambiguity is not material.
24. The FTT found them both to be manifestly credible. It accepted that the father believed the applications in June 2011 were in time, without realising that their leave had been curtailed as a result of his leaving his job. It recorded that the children had been attending school, and the third appellant had been playing cricket at a high level in the Essex league. He had also been accepted for entry to the University of Westminster. The other children were in secondary education and college.
25. All the children were well settled and did not wish to return to Pakistan. The father, by contrast, confirmed that but for the children he and his wife would be happy to return to Pakistan.
26. The FTT found that the children had established roots in the UK and had shown evidence of a private life here. The parents had not so demonstrated a private life, and any private life they may have established was very limited and superficial. There would be no interference with family life because it existed entirely within the nuclear family unit and all members would be returned to Pakistan together.
27. In relation to the minor children, they had all spent longer in Pakistan than in the UK, and had all been educated in both countries. There was no reason to suppose that they could not forge links in Pakistan within their school and community similar to those established in the UK. I note here that there seems to have been no suggestion that any child would have a language problem on return to Pakistan.
28. The FTT considered, understandably, that the best interests of the minor children was to remain with their parents, wherever that may be. As to the third appellant, there was no evidence to suggest that he would be unable to continue playing cricket in Pakistan or to attend university there.
29. In these circumstances the FTT concluded that there would be no disproportionate interference with family or private life for all the family to be returned to Pakistan.
30. That was the position in 2012. I asked Mr Ahmed what material changes had occurred between then and the 2013 applications. His response was that it was mainly the longer duration of the Claimants' residence in the UK. He pointed in particular to the fact that by the time of the supplementary decision letters the youngest child Sameen, then still under 18, had lived in the UK for more than 7 years. He agreed, however, that the relevant date was the date of application, in March 2013, when she had resided in the UK for only six and a half years, having been just seven years old when she arrived. He did not submit that her case could succeed on any "near miss" principle, and it is well established that a near miss cannot provide substance to a human rights case which is otherwise lacking in merit (see Patel & Others v SSHD [2013] UKSC 72, at [56] in the context of PBS decisions).

The decision letters

31. Since no complaint is made about the application of the new rules, the important letters for the purpose of the present challenges are the supplementary ones issued in October and November 2014. Mr Ahmed put forward the case of Sameen as the strongest in Article 8 terms, and I therefore consider that in detail.
32. The decision relating to Sameen and her parents starts with the findings of the FTT, considers the impact of section 55 of the 2009 Act, and notes the length of time she has been in the UK. It rejects the suggestion that she does not know any language other than English, reasonably in the light of the lack of any such suggestion in the FTT decision and the fact that she was at school in Pakistan to the age of seven. It concludes, reasonably, that she would still have family ties in Pakistan, and that her upbringing in a Pakistani family unit will have kept her aware to some extent of the culture of that country.
33. In my judgment this is a perfectly reasonable decision, and it sets out its reasoning in sufficient detail. I can deal with the remaining members of the family shortly. Noman and Waleed are now in their twenties. Even at the date of the application in March 2013 both were of full age. Both had spent the majority of their life in Pakistan, and had roots and family there. If either wished to continue further education in the UK, he could make an application for a limited student visa. That was no reason to allow the whole family to remain here indefinitely. The supplementary decision letters in relation to them are quite short, but in my judgment there was no question of them being even arguably exceptional cases where the overriding provisions of Article 8 should lead to a grant of leave outside the Rules. It was sufficient to say so shortly.
34. This was a family which arrived in the UK because of the father's job, and obtained exemption from the normal immigration requirements for that reason. It was not an entry with a view to settlement, although an application for leave to remain could always be made. Their lawful residence continued for just under four years only, although they believed it was lawful for five. Thereafter their residence has been precarious, during a period of appeal and then without status at all. The fact that as a result of these proceedings they have now been resident for over eight years does not assist them. In my judgment there is nothing in the circumstances existing at the time of the most recent application which changed the assessment of the FTT the previous year. Equally, there is nothing to require a greater degree of analysis or detail in the supplementary decision letters dealing with the overriding provisions of Article 8 and section 55 of the 2009 Act.
35. For these reasons, and in the case of Bisma Sheikh because she has no adverse decision to challenge as explained above, all these applications fail.
36. Unless the parties can agree any issues of costs which arise, the applications will be decided on written submissions in the usual way.