The new Immigration Rules
[4] That contention is made against the background of new Immigration Rules, which came into force on 9 July 2012. Certain of the provisions of those rules are important for an understanding of the claim and its treatment by the Home Secretary's officials, and it is appropriate to summarize these at this stage. The requirements that must be met under the new rules by a person who has applied for leave to remain in the United Kingdom on the basis of his or her private life are set out in rule 276ADE. The requirements under that rule that are material in the present case are that the applicant does not fall for refusal under a range of grounds set out in appendix FM and that he or she, if over the age of 25 years, should have lived continuously in the United Kingdom for at least 20 years. Rule 397 deals with deportation. It provides:

"A deportation order will not be made if the person's removal pursuant to the order would be contrary to the UK's obligations under the Refugee Convention or the Human Rights Convention [the UN Convention of 1950 dealing with the status of refugees and the European Convention on Human Rights]. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances of the public interest in deportation is outweighed".

"The applicant must not be in the UK in breach of the immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1 applies".

Section EX deals with certain exceptions. Paragraph EX.1 is in the following terms:

"This paragraph applies if

(a) (i) the applicant has a genuine and subsisting parental relationship with a child who-

(aa) is under the age of 18 years;

(bb) is in the UK;

(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and

(ii) it would not be reasonable to expect the child to leave the UK; or

(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK".

"Exceptional circumstances
Where the applicant does not meet the requirements of the rules refusal of the application will normally be appropriate. However, leave can be granted outside the rules where exceptional circumstances apply. Consideration of exceptional circumstances applies to applications for leave to remain and leave to enter. 'Exceptional' does not mean 'unusual' or 'unique'. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin. Instead, 'exceptional' means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. That is likely to be the case only very rarely".

A number of factors that may be relevant are then stated; these include the question whether the applicant's immigration status was precarious at the time when he or she began a relationship in the United Kingdom. The definition of exceptional circumstances is designed to deal with cases where a hardship resulting from removal from United Kingdom would be disproportionate to the objective of maintaining consistent control over immigration policy; in such a case removal would amount to a breach of article 8. The definition has been described as giving

"Our client has been and still is in a relationship with a British citizen, S K. She has two children, [one] of which is fond of our client. We enclose her Statutory Declaration which we refer to for its terms.

"Our client has formed a private life and family life within the United Kingdom and we would submit that to remove him to India, to enable him to apply for entry clearance from abroad, after the expiry of the mandatory period, would be disproportionate to the legitimate needs of Immigration control. Such removal would impact upon his partner who would be deprived of her rights under Article 8 ECHR. The child would become a victim in terms of Article 8. It would be unreasonable in the circumstances to ask her to go to India as her life is now in the UK with her family and friends present in the UK.

We would argue that it is disproportionate to ask our client to return to India to pursue an entry clearance application".

The constitutional status of the new rules
[19] The Immigration Rules are a statement by the Home Secretary as to how her powers under section 3 of the Immigration Act 1971 will be exercised: R (Munir) v Home Secretary, [2012] 1 WLR 2192, at paragraphs 37‑39 per Lord Dyson. It is accepted, however, that they may be relied on by applicants for entry to or leave to remain in the United Kingdom, and further that the application of the rules in individual cases is subject to the constraints of the European Convention on Human Rights. Article 8 of the Convention is of particular significance. It provides as follows:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others"

Earlier forms of the Immigration Rules did not address the requirements of article 8 directly. Nevertheless, it was very apparent that the right to private and family life was frequently relied on in immigration applications. Consequently it was decided by the Home Secretary that the rules should be amended so that they addressed more explicitly the factors that are relevant to a claim to remain in the United Kingdom based on article 8 rights. This, it was hoped, would produce greater clarity, consistency and transparency in the consideration of article 8 rights by immigration officials: R (Nagre) v Home Secretary, supra, at paragraph 8. It was acknowledged, however, that exceptional cases would exist, which should be dealt with by the mechanism of leave outside the rules (see paragraph [7] above): ibid.

"to affirm and strengthen, in the area of family migration, a rules‑based system of immigration control based on what [the Home Secretary] described in Parliament as 'a consistent, fair and transparent decision-making process'... with fewer grants of discretionary leave arising from concerns over interference with private and family life": paragraph [25].

We agree that that is the clear purpose of the changes to the rules.

The practical application of the new rules
[23] The new rules do not provide for every possible case where article 8 rights might be asserted; indeed, in view of the far-reaching impact of article 8 and the fundamental nature of family life in human existence, it is impossible to believe that they could ever do so. This is acknowledged by the Home Secretary, as her counsel made clear in the course of the hearing of the present petition. Consequently cases will arise where the Home Secretary, acting through her officials, is obliged to consider whether leave should be granted outside the rules in order to respect particular article 8 rights. That obligation can be enforced by judicial review. In this connection, we agree with observations of Sales J in R (Nagre) v Home Secretary, supra, at paragraph 27:

"There is, in my judgment, nothing untoward in the fact that the new rules do not necessarily track absolutely precisely and provide in detail in advance for every nuance in the application of Article 8 in individual cases. I do not think it would be feasible, or even possible, to produce simple Immigration Rules capable of providing clear guidance to all the officials who have to operate them that did that. That was true of the Immigration Rules prior to the amendment, and it could not be suggested that they were unlawful as a result"

We would respectfully agree with those observations.

"As appears from the new guidance issued by the Secretary of State in relation to exercise of a residual discretion to grant leave to remain outside the Rules [paragraph [7] above], the new rules contemplate that there will be some cases in which a right to remain based on Article 8 can be established, even though falling outside the new rules. Therefore, the basic framework of analysis contemplated by Lord Bingham in Huang continues to apply....

Nonetheless, 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 recognized under the new rules to require the grant of such leave".

"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 them fails, the relevant official or tribunal judge considers it clear that 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".

We agree entirely with that qualification. It seems to us that the new rules are likely to deal adequately with the great majority of cases where the article 8 right to private or family life is put in issue. In that event, there is no need to go on to consider article 8 separately, using the type of analysis set out in R (Razgar) v Home Secretary, supra.

"Officials should take care to avoid a 'tick box' approach, genuinely bear the policy guidance in mind and seek to stand back after working through the analysis required under the new rules so as to make an overall assessment of the facts to see whether there might be a good arguable case of disproportionality if leave to remain is not granted and, if there is, to examine that case with care to see whether removal would be justified. The reasoning in decision letters should seek to demonstrate that this reasoning process has indeed been gone through"

We agree entirely that officials charged with making immigration decisions should have regard to the substance of the policy guidance that is given in relation to leave outside the rules; that is the guidance referred to in paragraph [7] above. It can be expected that the new rules will cover most cases where an applicant seeks to rely on his or her Convention right to private and family life. If an official or tribunal or court is asked to consider leave outside the rules, an applicant must put forward a reason for doing so. Such a reason will usually consist of circumstances "in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate" (in the words of paragraph 3.2.7d of the Home Secretary's guidance). We are of opinion that in considering whether such circumstances have been demonstrated by an applicant, the criterion that should be used is that of a "good arguable case", as suggested by Sales J in the passage quoted above. The decision maker should examine the circumstances put forward by the applicant and determine whether they disclose a good arguable case that the rules would produce an unfair or disproportionate result such that the applicant's article 8 rights would be infringed. It is only if that test is satisfied that there is any need to go on to consider the application of article 8 in detail. Furthermore, as Sales J indicates, those writing decision letters should demonstrate that they have indeed addressed this test.

"No matter how closely, or not, the new rules track the detailed application of Article 8 in individual cases, the immigration control regime as a whole (including the Secretary of State's residual discretion) fully accommodates the requirements of Article 8. The fact that the rule new rules do not do that in all cases by themselves does not render them unlawful".

We agree entirely with those comments. Sales J then gives detailed consideration (at paragraphs 37‑43) to a contention that section EX.1 of the rules left a wide gap between the new rules and the Strasbourg and domestic case law on article 8. He considers a number of cases, including the important Strasbourg decision in Rodrigues da Silva and Hoogkammer v Netherlands, (2007) 44 EHRR 34, and indicates that the approach in the Strasbourg case law is that, where family life is established when the immigration status of the claimant is precarious, removal will be disproportionate only in exceptional cases. On that basis, he considered that the gap between the test for leave to remain under section EX.1 and the result obtained by direct consideration of article 8 in the class of cases involving precarious family life was likely to be small. We are in agreement with that view.

Conclusion
[30] In summary, therefore, we are of opinion that in all cases where the right to private and family life under article 8 is invoked the first stage must be to consider the application of the Immigration Rules. The new rules are designed to cover the considerations that are relevant to an article 8 claim in a normal case. The fundamental issue raised by article 8 is an assessment of on one hand the requirements of an effective immigration policy, including the enforcement of that policy by removal from the United Kingdom, and on the other hand the right of the individual concerned to private or family life. That exercise involves an assessment of proportionality. In most cases, the new rules will ensure that assessment is properly carried out. In some cases, however, the rules will not produce a fair result that accords with article 8. In those cases the Home Secretary, acting through immigration officials, will need to consider whether leave should be granted outside the rules. That will require an assessment of the precise circumstances of the individual case, taking account of all factors that are relevant. These will include factors mentioned in paragraph 3.2.7d of the Home Secretary's instructions and also any other factors that may be relevant to the particular assessment of proportionality that is being undertaken. The relevant factors will also include those mentioned in the rules themselves, notably in rules 276ADE‑276DH, and in appendix FM, including section EX of that appendix. The purpose of those provisions is to set out the factors that normally apply to the assessment of article 8 rights in an immigration context; consequently both the terms of those provisions and the underlying policy that can be discerned from those terms are of importance. They must, of course, be weighed against the other special considerations that apply in the particular case. Before it is necessary to embark on that second‑stage exercise, however, the application for leave to enter or remain must demonstrate a good arguable case that leave should be granted outside the rules: that a distinct assessment of proportionality should be made to determine whether removal would infringe the applicant's article 8 rights. If that is not demonstrated, it can be assumed that the applicant's article 8 rights will be adequately dealt with by applying the new rules. Finally, the test of exceptionality should not be used any longer; instead, decision‑makers should focus on the question of whether the applicant has shown a good arguable case that his or her application should be dealt with outside the rules.

The present case
[31] As we have indicated, the Lord Ordinary rejected the petitioner's challenge to the Home Secretary's decisions of 9 October and 21 November 2012 in which the petitioner's application for leave to remain was refused on the basis that there was no reasonable prospect of success before an immigration judge; the removal directions had of course been countermanded. In our opinion he was right to do so. In the first place, it is clear that the petitioner did not qualify for leave to remain under the Immigration Rules other than section EX.1 of appendix FM. In the first letter specific consideration was given to section S‑LTR of appendix FM, dealing with suitability requirements, and to section E‑LTRP.1, dealing with relationships with persons in the United Kingdom. Paragraph EX.1, dealing with relationships where there were insurmountable obstacles to family life outside the United Kingdom, was also considered, and it was concluded that there were no insurmountable barriers to life with S K outside the United Kingdom. Finally, in relation to article 8, paragraph 276ADE of the Immigration Rules was considered, and it was concluded that the requirements of that paragraph were not satisfied because the petitioner had not been in the United Kingdom for at least 20 years. In the second letter, consideration was given to the petitioner's relationship with S K in the light of the definition of "partner" in appendix FM, to his relationship with S K's daughter in the light of paragraph E‑LTRP of appendix FM, to paragraph EX.1 in the light of the information available about the relationship with S K and her daughter, and once again to paragraph 276ADE. Apart from section S‑LTR, all of those provisions are directed towards consideration of an applicant's personal and family circumstances. For the reasons already stated, they are provisions that are designed to take account of the impact of article 8.