Scottish Court of Session Decisions

Act: Caskie; Drummond Miller LLP (for McGlashan MacKay, Glasgow)

Alt: McIlvride; Office of the Advocate General

17 October 2013

Introduction

[1] The applicant seeks leave to appeal from a determination of the Upper Tribunal refusing her appeal against the decision of the respondent to curtail her leave to remain in the United Kingdom as the spouse of the man she married here in March 2009.

Background

[2] The applicant is a national of Russia. She has been resident in the UK continuously since 2005 in the circumstances which I will explain. The applicant's husband is a national of Pakistan. The reason for the respondent's decision was that it was discovered that the applicant's husband had obtained a UK passport by deception. It was a forged passport which he had bought for £12,000, in 2002, about a year after he had entered the country on the basis of a student visa. He had remained in the UK thereafter until 2009 on student visas and in possession of that forged passport. The forgery was not uncovered until after the applicant had married him.

Tribunal Proceedings

[3] Both the applicant and her husband appealed to the First- tier Tribunal. Their appeals were rejected. They sought leave to appeal to the Upper Tribunal. Upper Tribunal Judge Gleeson set aside the decision of the First-tier Tribunal and, in a document head "Decision and Direction", she observed:

"The analysis of the immigration and asylum element of the appeal is sound but Art 8 needs to be determined in relation to such private life as the appellants may have in the United Kingdom and whether the respondent's decision unlawfully failed to respect it."

That is, whilst the decision was set aside, the findings in fact by the First-tier Tribunal remained intact. They included that the applicant's husband was not believed when he said that he had become a Christian and that, whilst he entered the United Kingdom in 2001 on a student visa, his failure to complete any of the courses on which he had enrolled, called into question whether he had genuinely intended to undertake any of the courses, his stated intention of which had enabled him to renew his student visas and enabled him to remain in the UK.

[4] Upper Tribunal Judge Gleeson also issued a series of case management directions which included the following:

"The respondent do file and serve on the Tribunal any evidence she may have indicating that the principal appellant has the right to live in Russia or the second appellant is entitled to live in Pakistan".

[5] It is worth noting that the respondent was only directed to file any evidence that she already had that the applicant would, as a matter of fact, be entitled to live in Pakistan or that her husband would, likewise, be entitled to live in Russia. That is, she was not, for instance, directed to carry out investigations in relation to what would be the likely outcome of applications by those two individuals to enter those countries as the spouse of the other. That is not surprising. Upper Tribunal Judge Gleeson's reason for issuing that and other case management directions regarding the documents and skeleton argument was to enable her to "consider whether the appeal requires an oral hearing or can be determined on the documents which will then be before me". In the event, the respondent did not file any documents, an oral hearing was considered necessary and it was convened before two judges of the Upper Tribunal on 30 October 2012.

[6] The applicant and her husband relied on their written statements and the Upper Tribunal heard submissions. The Upper Tribunal records the applicant's account as set out in her statement, a document which has not been placed before this court.

[7] She apparently explained that she had arrived in the UK in 2004 with a working person's visa, returned to Russia before it expired and re-entered the UK with a valid visa in July 2005. She has been in employment here. She met her husband and married him on 27 March 2009. She was then granted a spousal visa which was withdrawn, in the circumstances to which I have already referred. In support of her article 8 claim, the applicant states that she has made great efforts to establish and develop her life in the UK and that it would not be right for that life to be shattered because of her husband's deception. There is no assertion in his statement that it would not be possible for her to enter Pakistan as the spouse of her husband. That matter is not touched upon at all. At paragraph 63, the Upper Tribunal states:

"The second appellant has a much better immigration history than her husband and it is clear from her unchallenged statement that she has integrated very well into the United Kingdom and enjoys a significant private life here as well as family life with her husband. Having said that, she had no expectation that she would be allowed to remain in the United Kingdom until she married someone who she was led to believe was a British citizen. Had she not met her husband then it seems fair to say that she may well not have established the degree of private life that she had in the United Kingdom and would in all probability have gone back to Russia."

The Upper Tribunal record what they took from the statement of the applicant's husband, a document which was also not before this court. It is said to have explained that he too had established and developed his life in the United Kingdom. He had been in employment, he had co-operated with the authorities when his false passport was discovered, pleading guilty when prosecuted and being sentenced to carry out 150 hours of community service which he states he performed. He had, he said, established friendships and enjoyed drinking alcohol socially with them, something he could not do in Pakistan. He had a close relationship with his wife. That statement is also said to explain that the applicant's husband believed that he could not return to Pakistan because he was married to a Russian girl who was also a Christian and white Caucasian. She had refused to wear a headscarf and would stand out in Pakistan. She likes to wear all sorts of clothes. She had said that she could not live in Pakistan. According to his statement, their lives would be at risk because of her status as a Russian, white Caucasian, Christian. He also said that it would be "difficult" for them to return to Russia because there it would be seen as "prejudicial" for his wife to be married to an Asian Muslim. She would be persecuted by people who were right wing in their views. In common with the applicant's statement, nowhere is it suggested that he could not enter Russia or that the applicant would not be able to enter Pakistan. On the contrary, his assertions regarding the risks to them both are plainly predicated on the basis that each would be able to enter the other's home country as the spouse of the other. No background material was referred to on behalf of either appellant in support of their assertion about the difficulty they would encounter in the other's country.

[8] Before the Upper Tribunal submissions for the respondent were made before those for the applicant. They included the following:

"40. of the Upper Tribunal's reasons. There was no evidence to say that the appellant would not be admitted to both Pakistan and Russia. There might be difficulties in adjustment but the Home Office always offered an assisted removal package."

The submissions to the applicant which followed those made on behalf of the respondent can be summarised as follows. First, she had established a full and valuable private life in the UK and had much to offer Edinburgh society. Secondly, she would suffer difficulties if forced to live in Pakistan; it would be unreasonable to expect her to go there to live with her husband. Thirdly, it would not be reasonable for the applicant's husband to be expected to live in Russia. The reasons for those stated difficulties were those to which I have already referred. Nothing was said in the submission for the applicants to contradict the respondent's submission regarding the absence of any evidence to suggest that the applicant would not be able to enter Pakistan to live there or that her husband would not be able to enter Russia to live there. No submission was made to the Upper Tribunal to the effect that there was an onus on the respondent to establish that the applicant would be able to enter Pakistan as the spouse of her husband or that her husband would be able to enter Russia as her spouse. No submission was made to the effect that the respondent had been positively bound by Upper Tribunal Judge Gleeson's directions to produce evidence about the ability of the appellant to enter each other's country or as to the consequences of such evidence not being forthcoming.

[9] Overall, the case presented on behalf of the applicant to the Upper Tribunal was predicated on the basis that she would be able to enter Pakistan and her husband would be able to enter Russia. It was not entry that was said to be the problem; it was what might happen to each of them once resident in the other's country. Put broadly, the case for both applicants before the Upper Tribunal was that neither could live in the country of the other's nationality because of difficulties they would encounter there; it was accepted that those difficulties would not amount to persecution but they were factors that required to be taken into account when carrying out the balancing exercise that article 8 required.

[10] The Upper Tribunal rejected both appeals. Between paragraphs 68 and 71 of their reasons, they explain, in considerable detail and under reference to relevant authority, how they carried out the balancing exercise which, for the purposes of article 8 they require to do. At paragraph 71 they said:

"We have therefore concluded that either of these appellant's can go to their partner's country of nationality and reside there and that such a decision is not a breach of their qualified rights under article 8 ECHR. From what we have said, we would have thought that it would be less disruptive to the appellants if they elected to go to Russia, but we emphasise that that is a decision for the parties themselves."

The applicants seek leave to appeal to this court. Her husband does not, however, do so.

Application for Leave to Appeal

[11] At the hearing today, Mr Caskie, counsel for the applicant, made the following submissions. He began by referring to Upper Tribunal Judge Gleeson's direction. Her direction to the respondent raised the issue of the legal and practical ability of each spouse to enter the homeland of the other. That was, he said, a material issue. The direction amounted to a requirement that the Secretary of State lodge evidence of the rules for admission to Russia and the rules for admission to Pakistan; that was because it was for the Secretary of State to establish proportionality. He referred to the submissions made at the Upper Tribunal hearing in October 2012. The final decision of the Upper Tribunal was such as to place an onus on the appellants to produce evidence that they would not be admitted to either Pakistan or Russia. That was an error of law.

[12] Mr Caskie referred to the case of AY v Secretary of State for the Home Department 2004 UKIAT 00205 where, at paragraph 21, the Immigration Appeal Tribunal chaired by the Vice President had stated that it was not the case that the burden was on the respondent to adduce evidence about the ability of an appellant to enter their spouse's country. But, here the respondent had, he submitted, been directed by the Tribunal Judge Gleeson to address the particular point. He accepted that the Secretary of State was not obliged to provide evidential material in relation to every possible difficulty that an individual might face in relation to entry into another country but the matter had been flagged up by Upper Tribunal Judge Gleeson.

[13] In the case of AY, the Tribunal had relied on M (Croatia) 2004 UKIAT 00024 a starred decision. Mr Caskie referred to what was said there at paragraph 28. The Tribunal had made it clear, he submitted, that it was not for a tribunal to assess proportionality for itself. He then referred to Huang v The Secretary 2007 2 AC 167, where it was said that there was no need for a test of exceptionality to be applied and he submitted that, importantly, the House of Lords had there indicated to the Tribunal that their task was not to carry out a judicial review type of exercise - asking whether or not the Secretary of State's decision was perverse - but it was to reach its own conclusion on proportionality. He then referred to the case of R (Aguilar Quila and another) v The Secretary of State for the Home Department 2012 1 AC 621, at paragraph 44, where Lord Wilson stated that there was a burden on the Secretary of State to establish that interference with article 8 rights was proportionate.

[14] Mr Caskie submitted that, in these circumstances, it was demonstrated that the Secretary of State bore an onus to establish that, in the particular circumstances of this case, either the applicant or her husband would be admitted to each other's country; since no evidence on this issue had been put before the Upper Tribunal by the respondent, the Upper Tribunal had been obliged to assume that the law of Pakistan and Russia would be the same as in the United Kingdom. If the rules for admission to Pakistan and Russia matched those applicable to in the UK, neither would be able to enter the country of their spouse; that was for the specific reasons set out in his note of argument. Immigration rules were, he accepted, a statement of policy and practice but they were relevant within the appeal structure. The Tribunal should have assumed that refusal in Russia or Pakistan would lead to an appeal and rules in the same terms would apply. Had the appropriate conditions for admission been produced, they would have been material. Where the onus was on the Secretary of State and the issue had been flagged by Upper Tribunal Judge Gleeson, it was for the Secretary of State, in those particular circumstances, to adduce appropriate evidence. He also referred to the case of Klass v The Netherlands 1978 2EHRR 214, at paragraph 42, which showed, he said, that when looking for justifications, it was necessary to construe the possible justifications narrowly, as had also been stated in the case of Funke v France 1993 1 CMMR 897. He submitted that the applicant's spouse was in a precarious position. The question was whether or not either spouse would be admitted to the other's country on art 8 grounds. The Tribunal ought to have addressed that.

[15] Turning to the case of Y v Russia 2010 51 EHRR 21, at 531, Mr Caskie recognised that, at paragraph 106, the court had observed that the question of whether or not each spouse could enter the country of the other was said to have remained open but that was no more than an observation. Separately, Mr Caskie referred to the fact that it was stated on behalf of the respondent that the Home Office would offer an assisted removal package; that was incorrect. The assumption should be made that the Tribunal had had regard to that statement. He did however accept that the Tribunal had done nothing other than record the submission. Also, he submitted that the Tribunal had, without justification, speculated in paragraph 63 about what would have happened in the applicant's life had she not married her husband. That was to be taken from the words "it seems fair to say".

Response to Application for Leave to Appeal

[16] For the respondent, Mr McIlvride submitted that the test in the case of Hoseini v Secretary of State for the Home Department applied in the present case and was not met. The principal submission appeared to be that the Upper Tribunal had erred in law in placing the onus on the applicant to establish that she or her husband would not be admitted into the country of the other. That ground of appeal had, however, no reasonable prospects of success. The applicant's case was presented on the basis that each would be entitled to enter the country of the other but it would not be reasonable to expect them to do so. He referred, specifically, to the Upper Tribunal at paragraphs 45, 51, 52 and 53. It was plain that both the applicant's and husband's cases had proceeded on the basis that there was no obstacle to either of them living in Pakistan or Russia so far as entry was concerned. It could not, he submitted, be said that the Upper Tribunal erred in determining the appeal on precisely the factual basis that the applicant and her husband had invited them to do.

[17] Mr McIlvride then referred to section 13(1) of the Tribunal Courts and Enforcement Act 2007. An appeal to this court was only allowed on a point of law arising from a decision of the Upper Tribunal. The contention that it was for the Secretary of State to establish that the applicant or her husband could enter each other's country had never been made before the Upper Tribunal. It could not competently be raised on appeal to this court. In support of that submission, he referred to the case of MBR 20013 CSIH 66 at paragraph 11. His submission was, accordingly, that it was clear that the substantive ground of appeal that was proposed could not competently be advanced in this court.

[18] Separately, if it was competent for the applicant to appeal, her appeal had, he submitted, no reasonable prospects of success. He referred to the terms of Upper Tribunal Judge Gleeson's direction; it clearly related to any information that the Secretary of State already had relating to the applicant and her husband personally. He referred to the purpose for which the direction had been made. It could not, he submitted, be maintained that the procedural direction placed an onus on the respondent regarding the matters referred to. He accepted that the state had to justify any interference with a person's article 8 rights. That was not in contention. However, the Secretary of State was not obliged, having presented her justification, - fair and firm immigration policy - to adduce evidence in order to negate every possible circumstance which an appellant might seek to rely upon as indicating that in their case, it would nevertheless be disproportionate to remove them from the United Kingdom. If an appellant seeks to argue that the particular circumstances of their case show that removal would be disproportionate, it is for that appellant to give notice of and adduce evidence of those particular facts and circumstances which are said to tip the balance in their favour. He referred to the case of AY at paragraph 22 and submitted that the reasoning there remained sound. He referred to the case of Huang; the disapproval of using the Wednesbury test was quite separate from the issue that arises in this case and, at paragraph 22 of AY, the proper approach was correctly discussed regarding where the onus lies when it is a matter of establishing balance. He referred also to the case of Y v Russia; it amply vouched the proposition that there was no onus on the Secretary of State of the type that was argued for on behalf of the applicant here. He referred to paragraphs 103 and 104 where the court explained the general considerations that applied in such a case as this. He also referred to paragraph 106 and 107; what was demonstrated was that, in circumstances where the issue remained an open question, the complaint was manifestly ill-founded. It was plain the court did not consider there was any onus on the state to establish whether or not it would be possible for either appellant to live in the country of their spouse.

[19] Turning to the proposition that the Upper Tribunal were obliged to assume that the law of Russia and Pakistan was the same as the law for Scotland, it was to be doubted whether that was the correct approach; the issue seemed to be one of fact rather than law. The Upper Tribunal would, however, have also had to approach matters on the basis that section 6(1) of the Human Rights Act 1998 would apply; thus, it would be unlawful for either country to act in a way which was incompatible with a convention right, in this case the applicant's article 8 rights.

[20] Regarding the submissions there was an inadequacy of reasoning regarding the matter of an assisted removal package, he submitted that the only inference to be drawn was that it had not been further referred to because the Upper Tribunal did not consider the matter to be a material one. Regarding the submission that the Upper Tribunal erred in law in speculating what was likely to have been the applicant's position if she had not married a man who had a forged passport, he submitted that there was no error. However, even if there was an error it was not a material error; it was tolerably clear that the outcome would have been no different: AB v The Secretary of State for the Home Department 2009 CSIH 50.

[21] Turning to my decision, I begin by observing that , at the heart of the grounds of appeal presented there lies a proposition regarding onus. It is said that the Upper Tribunal were obliged, in the absence of evidence to the contrary, to presume that the applicant and her husband would not be admitted to the country of nationality of the other or, at least, to presume the law there would be the same as the law of the United Kingdom and conclude that that meant that they would be refused entry; it had to be assumed that Immigration Rule 281 would apply and the applicant and her husband could not meet its requirements because there was no evidence of their having accommodation or maintenance in the relevant country or of either of them being able to speak the other's language. Put shortly, it is said that the onus was on the respondent positively to establish that the applicant would be admitted to Pakistan and or that her husband would be admitted to Russia. That was because, in any case involving the convention, the onus is on the state to establish proportionality. It was also because the issue had, as Mr Caskie put it, been flagged up by the Upper Tribunal itself when Upper Tribunal Judge Gleeson gave her direction.

[22] Before leave to appeal could be granted, the applicant would require to show as per Hoseini v Secretary of State for the Home Department 2005 SLT 550, that the appeal has a real prospect of success or that there is some other compelling reason for granting leave. The latter part of the test is not relied on in this case. Therefore, I have to ask whether the submission as outlined in the application and expanded on in Mr Caskie's oral submissions this morning, demonstrate that the appeal has reasonable prospects of success.

[23] I turn first to the question of competency. I agree with the approach of Lord Brodie at the hearing before him when he was sitting as a procedural judge in the Inner House in the case of MBR v The Secretary of State for the Home Department, as referred to in the subsequent opinion of the court delivered by the Lord Justice Clerk at 2013 CSIH 66. That is that, since this is a statutory appeal, the starting point must be to have regard to the terms of the relevant statute which specifies the circumstances in which an appeal may be brought to this court. The relevant provisions in this case are those of section 13(1) of the Tribunal Courts and Enforcement Act 2007. They provide that an appeal only lies in respect of "any point of law arising from a decision made by the Upper Tribunal". It must, accordingly, first be asked whether or not the issue that the appeal would raise arises from a decision made by the Upper Tribunal? Then, the point of law which would figure in the appeal requires to be considered and the question is: was it pursued before the Upper Tribunal? If it was not, this court cannot competently entertain it on an appeal under section 13(1). Here as will be evident from the narrative already given, the question of whether or not the respondent was obliged to establish that the applicant could achieve entry to Pakistan or her husband could achieve entry to Russia, was never raised as an issue at all. That does not seem surprising since the applicant's approach was to proceed on the basis that such entry would occur but it would be difficult for either spouse to live in the country of the other for the reasons advanced. That was also the approach of the applicant's husband. The matter of onus which the applicant now seeks to raise as the central pillar in her appeal is accordingly not one on which the Upper Tribunal ruled. They did not have to do so because it was not an issue before them. The remaining grounds were presented very much as makeweights and it does not appear that the application would have been presented on the basis of them alone. In these circumstances, the prospects of the applicant satisfying the requirements of section 13(1), which she would have to do before her appeal could even get off the ground, seem to be very poor indeed.

[24] Turning to the prospects of the applicant succeeding if she was able to proceed, for the reasons advanced by Mr McIlvride, I agree that the applicant has not shown that there are reasonable prospects of success. A fundamental difficulty in the applicant's approach is that the issue raised is not about the state's obligation to establish proportionality but about the facts on which the balancing exercise involved in the proportionality assessment is to be based. The applicant seems to say now that there might be a fact in her favour - that it might be possible to show that she or her husband would be refused entry to the other's country giving rise to a risk that they may suffer separation. But it is not for the respondent to "second guess" that that might be an appellant's position just as it is not for the respondent to "second guess" that an appellant's position might be that distress and harm would result from her leaving the United Kingdom because of having established a particular degree of connection with or participation in say a profession or social network in a UK community. The respondent was not obliged to make her own enquiries about that. The statements of the Asylum and Immigration Tribunal in the case of AY that were relied on by Mr McIlvride were not rendered otiose by the subsequent authorities referred to by Mr Caskie and I agree the case of Y v Russia would appear to afford strong support for the respondent's approach. If the view of the court had not been that no onus lay on the State to establish anything about the ability of the spouses to enter each other's country, it is difficult to see how the confusion that the application was manifestly ill-founded could have been reached. I would add that, separately, it cannot, on any proper reading of Upper Tribunal Judge Gleeson's direction, be concluded that she was determining where the onus lay or indeed that the matter required to be addressed in any subsequent hearing. It was a case management decision that she made. She was not determining an issue of law. Regarding the two other matters that were raised, neither of them would appear to be material. However, it seems plain that it can be inferred that the Upper Tribunal did not consider the assisted package matter to be material and, on any sensible reading of paragraph 63, it contains not ill-founded speculation but observations drawn from the applicant's own statement. Likewise, the issue raised could not found an arguable ground of appeal. In all these circumstances this application falls to be refused.