England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		4 February 2015

THE DEPUTY JUDGE:

1. I am going to give judgment on an ex tempore basis in this case, primarily because I have been taken extensively to the authorities, including some very recent authorities, and I do not see any need to set out at great length what has been an ongoing discussion about the principles which are involved in cases of this kind.
2. This is an application for judicial review in respect of the decision which was made by the Secretary of State for the Home Department on 21 May 2013. The Claimant is a Mauritian national born on 26 February 1984 and came to this country in 2005. She has been here for some time as an over-stayer. She had been here for 8 years, having been in Mauritius until the age of 21. She has now married in this country and says that she has a settled life here and cannot return to Mauritius.
3. Permission to bring this application was granted on 31 January last year. Essentially there are two grounds which are relied upon by the Claimant. The first ground is in respect of a failure by the Secretary of State to carry out a separate consideration pursuant to Article 8 of exceptional circumstances in reaching the decision to refuse the application, and the second is that the Secretary of State failed properly to consider rule paragraph 286ADE(vi), in other words, the "no ties" provision, and that she simply made a bald statement without giving the necessary rounded assessment, again on the basis of the authorities.
4. I have a bundle of documents. The application is at page 28 and sets out essentially those grounds. There was a suggestion of an argument that the Claimant should not be permitted to refer to the case of MM (Lebanon) [2014] WLR(D) 308, [2014] EWCA Civ 985 but that is not pursued and, in any event, it does not seem to me that that was an argument that could have been successful. There is a statement both from the Claimant and from her husband. They set out the particular circumstances of their relationship. They emphasise how close they are as a couple. They emphasise their commitment to one another and their commitment to this country. They both say in varying terms that they are unable to live in Mauritius, and there is reference made to the very sad history of an ectopic pregnancy which resulted obviously in the loss of the baby.
5. The Claimant says that she considers herself to be British. She set outs in some detail the circumstances in which she and her husband live and points out that they are no burden on the state. The Claimant relies on there being compelling personal circumstances which give rise to exceptional circumstances which were not considered by the Secretary of State and, again, the husband says, in particular, at page 41, that he cannot go to Mauritius. On that issue, the Secretary of State points out that as a British citizen he is perfectly free to go to Mauritius. There are no obstacles to his moving there.
6. The evidence, which is at page 34, from the Claimant states quite baldly, "I have no connections now in Mauritius". I am urged to consider that the Secretary of State should have taken that into account in the round in looking at the relevant paragraph of the rules. In particular, there is no consideration of exceptional circumstances. On behalf of the Secretary of State, and by reference to the letter, which begins at page 23 in the bundle, it is conceded that there is no reference at all to the consideration of exceptional circumstances. It does not say that given that there is no arguable case, "exceptional circumstances" has not been considered; it does not say that there has been some consideration, and it has been rejected. There is no mention of whether or not this was considered to be something which fell inside or outside of the rules or which the rules covered. It is silent on the point. As to the Ground 2, what is set out at page 24 is, "having spent 21 years in Mauritius, and in the absence of any evidence to the contrary, it is not accepted that in the period of time you have been in the UK you have lost ties to your home country, and therefore the Secretary of State is not satisfied that you can meet the requirements rule 276ADE(vi)".
7. The arguments in respect of the law and the approach which the Secretary of State should take in principle revolve around essentially four cases to which I have been referred. The first is of course the case of Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin) and the dicta there of Sales J who has set out, and again I do not intend to repeat it; the approach that should be taken in such cases. That was considered again in the case MM (Lebanon). Again, I do not intend to repeat the sections that I have been taken to. They should be deemed to be incorporated into this judgment. The conclusion obviously is that if the applicant cannot satisfy the rules, then there may or may not be an Article 8 argument, and that is referred to. The two more recent cases of the decision of Judge Grubb in the case of Aliyu v Secretary of State for the Home Department [2014] EWHC 3919 (Admin) and of Michael Fordham QC, sitting as a Deputy High Court Judge in Ganesabalan v Secretary of State for the Home Department [2014] EWHC 2712 suggest that it is a requirement upon the Secretary of State to identify, and I am summarising this in the briefest of terms, whether or not the exercise has been carried out and, if it has not been carried out, that it is on the basis that there is no arguable case or even simply to state that consideration has been given to it and it has been rejected. I do not need to say more than this. I find that the approach in Ganesabalan and in Aliyu is the appropriate approach and it properly reflects the earlier decisions in Nagre and MM (Lebanon) and that there is, as set out, a requirement on the Secretary of State, contrary to what is argued in front of me today, to say, in terms, that exceptional circumstances have or have not been considered and have been rejected. It is not suggested in either of the authorities for the Secretary of State to set out any great detail. It simply needs to reflect the fact that the point has been taken into account.
8. On that premise, it is apparent, considering the letter that I have already referred to, that the Secretary of State has not done so. And in that respect, the Secretary of State has, in my view, and on the basis of the authorities, fallen into error. The argument to contrary is, in my view, not the correct approach. It is not enough either, as has been referred to in one of the authorities, simply for the Secretary of State to expect a party to infer that the matter has been considered if it is not referred to. I think to read that into such a letter would be beyond what should be expected of anybody receiving a decision from the Secretary of State. They are entitled to know what has been taken into account and what has not been taken into account, in fairness, and the Secretary of State has that obligation.
9. The argument was pursued on the basis that the Secretary of State only needs to make reference to whether or not the point has been considered and rejected in circumstances where the Secretary of State considers that there would be an arguable case. And it is suggested that in a case such as this, which the Defendant says is so weak as not to be arguable, there is no need to make reference to that further Article 8 test. I reject that argument; primarily because it is not in accordance with the authorities I have referred to, in my view, and which I consider reflect the correct approach. But also because, again, if the Secretary of State has a reason for not doing something, in fairness to a party, that reason ought to be identified. In other words, it only needs another sentence saying: "there would be no arguable point in my doing this and so I have not done it".
10. The Secretary of State then goes on, given that as I have found I am against the argument with regard to the contents of this letter, to say that in light of the inevitability of the outcome, I should nonetheless reject this claim that judicial review is not appropriate because it is immaterial. There are no bases, it is suggested, for an Article 8 claim on the evidence put forward by the Claimant and that in those circumstances, even having found that the Secretary of State has fallen into error in this case, since it would have made no difference to the outcome, I should reject the claim.
11. I have been referred to the decision of Ganasabalan and to the dicta there of Michael Fordham QC, sitting as a Deputy High Court judge. Looking at paragraphs 44 and 45 which I was referred to, it seems to me that there is some significant risk in requiring the court or in the court undertaking an assessment of the evidence in reaching a decision as to the inevitability of an outcome. Clearly there will be cases and there may be a number of cases where, looking at the evidence, the court can say it would not have made a difference. It seems to me, however, that that may be a situation which is more apt in circumstances for example when one factor out of many has not properly been taken into account.
12. I like, Michael Fordham QC, am hesitant to say that the outcome would have been inevitable because I do not know what the Secretary of State's findings would have been on the basis of the evidence. There are arguments put forward on behalf of the Claimant under the heading of compelling personal circumstances. Whether or not they amount to exceptional circumstances is not for me to decide. I accept that there are cases, and it is appropriate to refer to cases, which may be some sort of a yardstick to say, "well, this would not have made any difference", but, having considered the details here and, in particular, the paragraphs I have referred to in the decision in Ganesabalan, I am unwilling to and therefore I do not make a finding of inevitability of outcome. I am reluctant to say whether or not that is a general principle, and I have already given some indication as to my view on the point. But it seems to me that in this case, the proper thing to do is to quash the decision on that ground and for the matter to be subject to a fresh decision. To that extent I grant the application.
13. I have not dealt with the second ground and I can deal with that much more briefly. It does not seem to me that the Claimant can succeed on the second ground. The Secretary of State's letter, as I have referred to, identifies that she is not satisfied that the Claimant has established that there are no ties with Mauritius. The bold statement that I have referred to, namely "I have no connections in Mauritius", is a stand alone statement, and although contrast is made in the statement of both the Claimant and her husband about their life in this country and how committed they are to this country and how they consider themselves to be British, there is no attempt to say why there are no ties in Mauritius; no attempt to put forward any evidence as to why a return to Mauritius is not possible. There is no information at all about whether the Claimant has any family or connections there other than this statement: "I have no connections".
14. I accept in a limited way what Mr Malik says, namely that the Secretary of State could very well have said: well, I do not accept that; I do not find it credible or reliable. But what the Secretary of State has to do is to perform this rounded assessment, and the Secretary of State can only do that if a Claimant puts forward evidence which enables that assessment to be carried out, and in this case there is no evidence apart from that statement. In those circumstances the assessment that the Secretary of State had to do was to look at that statement, which it may be that I have to deem she accepted, against the factual background, namely the length of time in Mauritius, the length of time in this country, the circumstances of the Claimant being an over-stayer, the fact that she spent her formative years in Mauritius, the fact that she and her husband have employment, and at least the husband is referred to as having transferable skills and there being no obstacle to them living in Mauritius. Having performed that balance, it seems to me, that on the very limited evidence, there was as rounded an assessment as there could be. And so I reject the application on ground 2.