Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 106A
P1351/12	OPINION OF LORD STEWART in the Petition LWF Petitioner; for Judicial Review of a decision in terms of the Nationality, Immigration and Asylum Act 2002 s. 94(2) issued by the United Kingdom Border Agency on behalf of the Secretary of State for the Home Department on 27 December 2012, etcetera and Answers for The Secretary of State for the Home Department Respondent: ________________

Petitioner: Caskie; Drummond Miller LLP

Respondent: Webster; Office of the Solicitor for the Advocate General

4 July 2013

[1] This case raises the vexed question of the new Immigration Rules, HC 194. The Home Secretary introduced the amendments to better control family-member entry clearance and to meet perceived abuses of article 8 ECHR (right to respect for private and family life) by illegals, overstayers and convicted foreign nationals attempting to resist removal or deportation from the United Kingdom.

[2] As explained in some detail by Lord Hope in Alvi, immigration rules like HC 194 made by the Secretary of State are subject to the negative resolution procedure. On 13 June 2012 the Secretary of State laid HC 194 before Parliament in terms of the procedure with a view to the amendments coming into effect from 9 July 2012. Then, on 19 June 2012, the Secretary of State took the unusual course of tabling the following motion for debate in the House of Commons:

"That this House supports the Government in recognising that the right to respect for family or private life in Article 8 of the European Convention on Human Rights is a qualified right and agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules."

As the Secretary of State explained matters to the House, the mischief was that the courts had been "left to decide the proportionality of interference with article 8 rights themselves, in each and every individual case, and without the benefit of the views of Parliament." She explained that the government was "letting Parliament do its job by making public policy" and "letting the courts do their job by interpreting the law, with regard to the clear view of Parliament of where the public interest lies". The motion passed after four hours of debate without a division. The negative resolution procedure was followed in the House of Lords [R (on the application of Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208 at §§ 34―42 per Lord Hope of Craighead DPSC; HC Hansard, Vol 546, cols 760―823, 19 June 2012; MS (India) v Secretary of State for the Home Department [2013] CSOH 1 at §§ 12-14].

[3] The Secretary of State's intention has not, so far, been realised in the way she might have hoped. Immigration and asylum tribunals have determined, most importantly for present purposes in Izuazu, that the new rules are not conclusive as to the merits of article 8 ECHR immigration claims; and that decision makers still have to carry out a traditional article 8 ECHR proportionality assessment on a case by case basis [Izuazu (Article 8 - new rules) Nigeria [2013] UKUT 45 (IAC), Blake J presiding, Lord Bannatyne and Storey UTJ, 30 January 2013]. In an article in the Mail on Sunday on 16 February 2013 the Home Secretary accused "some judges" of ignoring Parliament's wishes. In what I read as a direct reference to Izuazu the Home Secretary criticised "one immigration judge" - presumably Blake J, president of the Upper Tribunal (Immigration and Asylum Chamber) - for thinking that the new rules can be ignored because they had been subject to a "weak form" of Parliamentary scrutiny.

[4] The first hearing on this application for judicial review took place on 28 February 2013. After receiving counsel's submissions in this case on that date, I made avizandum. Then on 4 March the President of the Supreme Court, Lord Neuberger, was reported as saying, in response to the Home Secretary's article, that it is "unhelpful for ministers to attack individual judges or groups of judges." I have now reached the view that I can duck the high level cross-fire. This is because I think the petitioner's application can only have one outcome whether or not the new rules are fit for their intended purpose. The conclusion I have come to is that the United Kingdom Border Agency [UKBA] decision of 27 December 2012, which the petitioner challenges, is sound; that the petitioner's application to have that decision set aside must be refused; and that the petitioner must leave the United Kingdom. In deference to counsel's arguments I shall say something about the new rules.

Immigration history and decision under challenge

[5] The petitioner states that she is a citizen of the Hong Kong Special Administrative Region of the People's Republic of China. She claims to have entered the United Kingdom in March or April 2006 on a six month visitor visa. She over-stayed. Five years later, on 21 January 2011 she was encountered by the authorities working in the kitchen of a restaurant in Kirkintilloch. She was served with a notice of liability to removal, form IS151A, and detained. On 17 February 2011 the petitioner was released on immigration bail with reporting conditions. The petitioner did not leave the United Kingdom voluntarily. On 14 December 2012 the petitioner was again detained to facilitate her removal. She was served with removal directions, form IS151D, for removal to Hong Kong on 28 December 2012. Representations were submitted by lawyers on the petitioner's behalf on 20 December 2012. It was claimed that the petitioner was "in a relationship with" a British national male apparently of Chinese ethnicity, LJA, and that her removal would violate her right to respect for her private and family life in terms of ECHR article 8. The representations were backed up by a letter from LJA with a photocopy of his passport biodata page and four other letters of support from members of the British Chinese community vouched by copy identity documentation.

[6] By a determination dated 27 December 2012 a UKBA decision maker acting on behalf of the Secretary of State rejected the petitioner's article 8 ECHR claim and certified in terms of the Nationality, Immigration and Asylum Act 2002 s. 94(2) that the petitioner's claim is "clearly unfounded". The practical effect of certification is that the claimant does not have an in-country right of appeal to a tribunal within the immigration decision making system [SM (South Africa) v Secretary of State for the Home Department [2012] CSOH 172 at §§ 4-7]. A petition was immediately lodged in this Court at the instance of the petitioner challenging the removal set for the next day although, to be fair to UKBA, the decision letter stated that the removal had been deferred and that the date would be re-set. In any event UKBA did not enforce the removal directions of 14 December 2012. The petition as it has been placed before me is an amended version which challenges the certification decision of 27 December 2012.

Submissions for the petitioner

[7] Counsel for the petitioner referred to the section 94(2) certification test as explained in SM (South Africa): a claim is "clearly unfounded "if it has no prospect of succeeding on appeal to an immigration judge properly directed as to the law and properly instructed as to the facts assuming the most favourable interpretation from the claimant's point of view. Counsel submitted that, on the most favourable view of the law as it presently stands - see the Upper Tribunal decisions in MF (Nigeria), Izuazu and Ogundimu - the five-stage Razgar test continues to apply to the assessment of article 8 ECHR claims notwithstanding the new rules; that the Razgar test is more easily satisfied in "domestic" cases, that is in cases like the present one in which the claimed violation will take place in the host state as opposed to the destination state; and that "a hard-edged or bright line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires" [SM (South Africa) v Secretary of State for the Home Department [2012] CSOH 172 at §§ 4-7; MF (Article 8 - new rules) Nigeria [2012] UKUT 393 (IAC); Izuazu (Article 8 - new rules) Nigeria [2013] UKUT 45 (IAC); Ogundimu (Article 8 - new rules) Nigeria [2013] UKUT 60 (IAC); KBO (Ghana) v Secretary of State for the Home Department [2009] CSIH 30 at §§ 6 and 13-17 per Lord Reed delivering the opinion of the Court; Razgar v Secretary of State for the Home Department [2004] 2 AC 368 at §§ 16-20 per Lord Bingham of Cornhill; EB (Kosovo) v Home Secretary (HL(E)) [2008] 3 WLR 178 at § 12 per Lord Bingham of Cornhill].

[8] In Razgar Lord Bingham said: "Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis." Counsel for the petitioner reminded me that the Huang refinement emphasised that exceptionality is not a qualitative test but a quantitative prediction of the number of cases likely to succeed on the ground of disproportionate interference with article 8 ECHR rights. It has now come to be recognised, said counsel, that "exceptionality", whether it has a quantitative or a qualitative meaning, is "unsafe and unhelpful... as a guide". This must be so above all in cases about family life, because, in counsel's words, "families come in all shapes and sizes"; and both the existence of family life and the proportionality of any interference with it must always be a question of fact and degree [Razgar v Secretary of State for the Home Department [2004] 2 AC 368 at § 20 per Lord Bingham of Cornhill; Huang v Secretary of State for the Home Department [2007] 2 AC 167 at § 20 per Lord Bingham of Cornhill giving the opinion of the appellate committee; Manchester City Council v Pinnock (SC(E)) [2010] 3 WLR 1441 a § 51 per Lord Neuberger of Abbotsbury MR giving the judgment of the Supreme Court; Pawandeep Singh v Entry Clearance Officer (CA) [2005] QB 608 at §§ 20, 25 and 38 per Dyson LJ, at §§ 59 and 63-66 per Munby LJ].

[9] Counsel for the petitioner told me that "it is a massive understatement to say that the new rules came as a shock to practitioners in the field". Referring to the new rules, "appendix FM family members", counsel for the petitioner submitted that the leave to remain [LTR] provisions, section S-LTR 1.1―1.7 are "bright line rules" and by that very fact incompatible with article 8 ECHR: for example, in terms of S-LTR 1.7 an applicant is to be refused limited leave to remain if he or she has failed without reasonable excuse to comply with a requirement to attend an interview, even if the failure occurred years before. Counsel made the same sort of criticism of the relationship eligibility requirements for partners, E-LTRP 1.1―1.12: for example, in contrast to E-LTRP 1.10, the Strasbourg jurisprudence teaches that family life can be constituted without living together [EB (Kosovo) v Home Secretary (HL (E)) [2008] 3 WLR 178 at § 12 per Lord Bingham of Cornhill; Kroon v The Netherlands (1994) 19 EHRR 263].

[10] I was addressed on the tribunal decisions of MF (Nigeria), Izuazu and Ogundimu and on Lord Brodie's decision in the case of MS (India). Lord Brodie's Opinion was issued before the decisions in Izuazu and Ogundimu and is arguably out of step with the tribunal view. The Upper Tribunal in Izuazu took notice of his Lordship's Opinion and commented as follows:

"Whilst we note some difference in emphasis at [28] and [31] and our observations above, we do not detect any conflict in approach as to the function of a judge in an Article 8 appeal where family life is indeed engaged."

MS (India) is subject to a reclaiming motion which, I was told, will be heard early in the summer term 2013 [MF (Article 8 - new rules) Nigeria [2012] UKUT 393 (IAC); Izuazu (Article 8 - new rules) Nigeria [2013] UKUT 45 (IAC) at § 51; Ogundimu (Article 8 - new rules) Nigeria [2013] UKUT 60 (IAC); MS (India) v Secretary of State for the Home Department [2013] CSOH 1 at §§ 24, 25, 28, 29, 31 and 34].

[11] Counsel for the petitioner submitted that HC 194 is ill thought out being, in his words, "designed as a flow chart and promulgated as rules". Counsel derived a number of propositions from the tribunal decisions as follows. Whatever might have been the intention, the new rules do not make comprehensive provision for all types of private and family life claims. In any event the new rules, even though the subject of debate in the House of Commons, do not have the force of statute. It is not for the government, said counsel, to qualify definitively the article 8 ECHR rights of individuals: that is ― in the absence of statutory provision removing the matter from judicial control ― the function of judges, conducting a Razgar-style evaluation. The effect of the Nationality, Immigration and Asylum Act 2002 ss. 84―86 is that immigration and asylum judges have to apply the rules and must act compatibly with incorporated ECHR rights. Accordingly, the new rules cannot supersede the need to conduct a two-stage determination ― deciding first whether claims comply with the new rules and secondly, for claims that do not comply, deciding whether such claims should nonetheless succeed on article 8 ECHR grounds. Failure to meet the requirements of the new rules is thus not the conclusion of the article 8 ECHR inquiry but its starting point. At the second stage the new rules may weigh on the public interest side of scales in making the proportionality assessment. Notwithstanding the terms of the new rules, domestic case law makes clear that the assessment cannot be restricted to deciding whether there are "exceptional circumstances". Claims that would have succeeded on article 8 ECHR grounds before the introduction of the new rules should not be defeated by the new rules [MF (Article 8 - new rules) Nigeria [2012] UKUT 393 (IAC) §§ 3, 4, 6, 9―16, 23―25, 29―34, 45―48, 64, 81, appendix, extracts from Maslov v Austria, § 34 ; Izuazu (Article 8 - new rules) Nigeria [2013] UKUT 45 (IAC) at §§ 48―59, 83―86; Ogundimu (Article 8 - new rules) Nigeria [2013] UKUT 60 (IAC), §§ 82, 83].

[12] The primary submission by counsel for the petitioner is that UKBA has determined the petitioner's article 8 ECHR claim to remain in the United Kingdom against her, unlawfully, under the new rules. If, contrary to the primary submission, there has been a two stage assessment the second stage has been vitiated by an incorrect application of the law and in particular by taking account of irrelevant factors. In either event it cannot properly be said that the claim has no prospect of succeeding on appeal to an immigration judge properly directed as to the law and properly instructed as to the facts assuming the most favourable interpretation. Accordingly the certification decision should be reduced so that the petitioner can appeal to the first tier tribunal while she remains in the United Kingdom. Counsel referred me to the first section of the decision letter, paragraphs 1 to 19 and quoted paragraphs 4, 5, 7, 8, 11, 12, 16 and 17. I should say that it is not disputed that this first part of the decision letter up to paragraph 19 is a decision under the new rules or that the petitioner clearly fails to satisfy the requirements of the new rules.

[13] In response to the submissions for the respondent, counsel for the petitioner added that the Italian Republic case is about extradition not immigration; and that there is no read-across from extradition to immigration [H (H) v Deputy Prosecutor of the Italian Republic [2012] 3 WLR 90]. Counsel submitted that the reference to the proportionality assessment in paragraphs 24 and 25 of the decision letter has to be read together with paragraph 4 where it is stated that: "your client's removal is entirely in line with the recent clear statement by Parliament on how the proportionality balance should be struck... " The "margin of appreciation", said counsel, does not apply where the issue is before the domestic courts.

Submissions for the respondent

[14] Counsel for the respondent offered a robust justification of the Home Secretary's approach. He told me that, until the introduction of the new rules, United Kingdom case law had evolved in a public policy vacuum. The new rules, drawing on the Strasbourg jurisprudence, are intended to express where the balance of proportionality would lie in most cases, while preserving the possibility of making fact-specific decisions departing from the rules in exceptional cases. "Exceptionality" is not a test: "exceptional" simply refers to the gravity of the consequences for individuals and families [H (H) v Deputy Prosecutor of the Italian Republic [2012] 3 WLR 90 at § 32 per Baroness Hale of Richmond JSC].

[15] According to counsel immigration control is an exercise of the prerogative powers of the Crown subject to statutory constraint and to self-restraint on the part of the responsible minister complying with domestic law and international instruments to which the United Kingdom is party. Counsel submitted that there cannot be effective immigration control without rules; and that immigration rules are lawful provided they are within the margin of appreciation allowed to signatory states of the European Convention on Human Rights. There cannot be, according to counsel, a proper proportionality balancing exercise for the purposes of an immigration claim in terms of article 8 ECHR without having regard to national immigration policy.

[16] Counsel for the respondent told me that pending clarification of the effect of the new rules UKBA decision makers are instructed to make two-stage decisions on article 8 ECHR claims. The determination in this case, according to counsel's submission, is such a two-stage decision. Paragraphs 20 to 28 are a traditional article 8 ECHR proportionality assessment in which the decision maker has expressly considered the petitioner's claim in the light of the authoritative House of Lords judgments in Huang, Chikwamba and Beoku-Betts [Huang v Secretary of State for the Home Department [2007] 2 AC 167; Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420; Beoku-Betts v Secretary of State for the Home Department [2009] 1 AC 115].

[17] The decision maker has also referred to the guidance given in "MG Serbia and Montenegro" - I was not provided with a copy and wonder whether this should be a reference to the Immigration Appeal Tribunal decision in MD (Imprisonment in UK: Article 8: Serbia and Montenegro), [2004] UKIAT 292. The certification question has been addressed under reference to "Thangarasa and Yogathas" [R (on the application of Yogathas) v Secretary of State for the Home Department and R (on the application of Thangarasa) v Secretary of State for the Home Department [2003] 1 AC 920].

[18] Referring to the decision letter counsel for the respondent submitted that the decision maker clearly proceeded in stages by considering first compliance with the new rules and whether there were exceptional circumstances excusing compliance with those rules and then, from paragraph 18 onwards making a traditional proportionality assessment based on the hypothesis that removal would interfere with the petitioner's article 8 ECHR rights. The petitioner had been in the United Kingdom unlawfully since 2006. She claimed to have been in a "relationship" with a United Kingdom national for something over two years; this was apparently not a cohabiting relationship; and there was little indication and no independent evidence of "family life". In 2011 the petitioner had stated to UKBA officers that she was willing to go home and was prepared to leave the United Kingdom. There was no claim at that time that the petitioner was in a relationship. The first such claim occurred in the representations that were made by her solicitors on 20 December 2012 when she was faced with actual removal.

[19] Counsel continued to the effect that the decision maker was entitled to give very substantial weight to the countervailing negative factors of "poor immigration history and blatant disregard of the immigration regulations". The certification decision at paragraph 29 was soundly based on any view. Counsel submitted that the determination could be set aside only on the basis of Wednesbury-type errors. There were no such errors. If there were an error, it was an error of presentation only and of no materiality. The claim was bound to fail [SM (South Africa) v Secretary of State for the Home Department [2012] CSOH 172 at §§ 4-7].

Discussion and decision

[20] I am struck by the way Lord Brodie put the matter in MS (India) when he said: "it would seem very clearly to have been the [Secretary of State's] intention to domesticate article 8, as it were, by bringing its requirements within the Rules". The word "domesticate" echoes the slogan "Bringing Rights Home!"; and it also carries a possible suggestion in this context of taming or even house-training. I do not suggest that was the meaning intended by Lord Brodie: but it is a meaning that captures some of the intensity of the article 8 debate. [MS (India) v Secretary of State for the Home Department [2013] CSOH 1 at § 24: c.f. Somerville v Scottish Ministers 2008 SC (HL) 45 at § 178 per Lord Mance; R v Secretary of State for the Home Department, ex parte Brind
[1991] 1 AC 696 at 717F-718B per Lord Donaldson of Lymington MR in the Court of Appeal,d cited by Lord Brodie in Friend v Lord Advocate 2004 SC 78 at § 40].

[21] It is not my place to say whether or not the Secretary of State should aspire to regulate article 8 ECHR in its application to immigration, asylum and deportation cases: but I must acknowledge that there is a school of thought, to which the Secretary of State apparently belongs, that immigration decision-making has become over-judicialised. I can see the argument that, if the desired result is "firm and fair immigration control" on an organised and consistent basis, it is not sensible to have a system of decision-making in which hard-pressed, comparatively junior administrators feel compelled, as in the present dispute, to cite, enlist or distinguish, complex case law in justification of their case-by-case determinations, determinations which are then picked over by specialist lawyers. There are many examples of state interference with private and family life which are satisfactorily governed by rules. Searching private property for evidence against the occupier is the paradigm. In how many search-warrant cases do police officers and magistrates undertake an exhaustive proportionality-balancing exercise with reference to decisions of the House of Lords, the Supreme Court and the European Court of Human Rights to discover whether Lord Bingham's fifth stage article 8(2) ECHR test can be satisfied [EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159, generally; R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 at § 17 per Lord Bingham]? Clearly there are rules and there are rules ― rules embodied in statute, rules mandated by statute which may or may not be approved by the legislature in different ways, common law rules and so on: but for the purpose of the article 8 ECHR(2) concept of "interference authorised by law", all such rules, while they are in force and are made public, represent the law.

[22] "Human beings are social animals". This was how in Huang Lord Bingham, re-working Spinoza's definition of man as a social animal, introduced the much-quoted passage on the core value of family life. In its original form the proposition goes back to ancient Greece and supports not the idea of individual rights in opposition to the state but the idea of the state as the necessary context for individual fulfilment [Huang v Secretary of State for the Home Department [2007] 2 AC 167 at § 18 per Lord Bingham giving the opinion of the appellate committee]. Article 8(2) ECHR endorses the necessary role of the state in upholding a democratic society. Maintaining border security, though not specifically mentioned, is recognised by the Strasbourg jurisprudence as a legitimate state aim in and of itself for the purpose of article 8(2) ECHR [Nnyanzi v United Kingdom (2008) 47 EHRR 18 at § 76]. To say that the state has a right to police its borders does not perhaps fully express the function of the state in pursuit of this aim [R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 at § 3, citing Henao v The Netherlands (Application No 13669/03) (unreported) 24 June 2003 ECtHR, and § 19 per Lord Bingham of Cornhill]. Arguably the democratic state also owes a duty to its own citizens to control the entry of non-citizens and to expel non-citizens who abuse its hospitality. Do I detect a growing sense in some quarters ― possibly exemplified by the policy objective expressed in the new rules ― that social cohesion to some degree is a prerequisite for the voluntary burden-sharing which is central to the democratic social contract?

[23] One way or the other, it is not disputed that immigration control is a matter of public policy. There are two points at which a balance is struck: a balance is struck between or among domestic sectional interests in the formation of public policy, expressed in this context as immigration rules; and there is a separate striking of the proportionality balance as between the application of public policy, on the one hand, and, on the other, the interests of individual human rights claimants. There is scope for confusion in the way the discussion has developed in Huang through the Court of Appeal and the House of Lords and again in Izuazu following the introduction of the new rules.

[24] In Izuazu the submission for the Secretary of State short-circuited the distinction I have just drawn between the formation of public policy and the application of public policy. It was apparently contended that the new rules in themselves represent an ECHR-compliant balance as between the public interest and individual human rights; and that the rules should therefore be determinative in individual article 8 ECHR cases. On the other side, counsel for the claimant seems to have submitted that the new rules are not ECHR-compliant and, because the new rules are non-compliant, they are not entitled to weigh in the proportionality balance and are in effect irrelevant in deciding individual cases. I shall return to the matter below [Izuazu at §§ 27―29, 48, 52―53, 67; Appendix B, 21].

[25] The determination in Izuazu sounds an uncertain note. I say this looking particularly at the key paragraph 49: it inadvertently misquotes Lord Bingham; it seems to have garbled "negative resolution procedure" as "negative procedure resolution"; and it moves, if I may say so with respect, by way of circularity through eight numbered sub-paragraphs from the case of Kay in the House of Lords to the case of Kay in the House of Lords without progressing the argument - and without apparently noticing that Kay subsequently went to the European Court of Human Rights in Strasbourg.

[26] At paragraph 49(i) it is said that, in Huang, Lord Bingham gave a good answer to the contention that immigration rules laid before Parliament have the Kay-type imprimatur of democratic approval [Kay v Lambeth Borough Council [2006] 2 AC 465 at §§ 32-39 per Lord Bingham of Cornhill, etc; Huang v Secretary of State for the Home Department [2007] 2 AC 167 at § 17 per Lord Bingham of Cornhill giving the opinion of the appellate committee]. The Huang quotation omits a crucial "not":

"... the Immigration Rules and supplementary instructions are not the product of active debate where non-nationals seeking leave to remain are [not] in any event represented" [omitted word inserted in brackets]."

Quoting paragraph 49 in his subsequent and carefully-reasoned PS decision, Lord Bannatyne, a member of the Upper Tribunal which decided Izuazu, restored the correct sense by inserting a "not", though in a different place from the original [PS (India) v Secretary of State for the Home Department [2013] CSOH 59 at § 54]. The passage even when correctly quoted is beside the point at issue in this context since non-citizens who are affected are not represented in Parliament irrespective of whether the contested measure is a rule or a statute. In a representative democracy you can have a perfectly good democratic balance without consulting the interests of individuals, particularly the interests of individual non-citizens. That is, presumably, one of the reasons why the legislature has been content to see the detail of border control regulated by ministerial rules rather than by statute.

[27] At paragraph 49(iv) the old case of Stockdale is cited as authority for the proposition that the "negative procedure resolution" [sic] confers only a diluted kind of juristic potency. I doubt, with respect, whether Stockdale - about an interesting statement defamatory of a bookseller in a Report by the Inspectors of Prisons printed by order of the House of Commons - is authority as to the legal effect of the immigration rules. The status of the immigration rules, generally speaking, derives not from their having been laid before the House of Commons but from their having been authorised to be made by statute, approved by the negative resolution procedure in both Houses and accorded particular legal effects, by statute and at common law. The source of the power to make the rules, and to waive their application in particular cases, is, we are told, no longer the royal prerogative: but the statutory empowerment represents recognition in modern form that immigration has to be governed by rules; that the process has to be a flexible one; and that the best rule-maker is the responsible minister, democratically accountable and subject to Parliamentary veto [Stockdale v Hansard (1839) 9 Ad & El 1; Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230; Secretary of State for the Home Department v Pankina
[2011] QB 376 at §§ 7―22 per Sedley LJ with whom the other members of the Court of Appeal agreed; Munir and Anr v Secretary of State for the Home Department
[2012] UKSC 32 per Lord Dyson JSC with whom the other Justices of the Supreme Court agreed; R (on the application of Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208 at §§ 25―33 and 66 per Lord Hope of Craighead DPSC, at §§ 80―83 per Lord Dyson, etc].

[28] In Kay in the House of Lords, what Lord Bingham said was [§ 32]:

"The respondents insisted on the relevance of three principles which are very familiar but are, indeed, fundamental. The first is that the Strasbourg authorities routinely accord a wide margin of appreciation to the national authorities of member states, not least in the context of both article 8 and article 1 of the First Protocol. While in some situations... the margin is treated as narrower than in some other situations, and the court reserves to itself the power of final review, this principle is undoubtedly correct. So is the closely-allied second principle, that the Strasbourg authorities generally respect, subject to similar qualifications, decisions made by democratically-elected assemblies following public debate. So too is the third principle, that inherent in the whole of the Convention is a search for balance between the rights of the individual and the wider rights of the society to which he belongs, neither enjoying any absolute right to prevail over the other. It is unnecessary to cite authority for propositions so well established and understood."

The second proposition is the relevant one for present purposes. The immediate source was probably Connors where the Strasbourg court reiterated its respect for the judgment of national legislatures in deciding where "the general interest" lies [Connors v United Kingdom (2005) 40 EHRR 9 at §§ 81-82]. Clearly the new immigration rules satisfy the test as formulated in Kay: HC 194 follows much public debate and has been approved by a democratically-elected assembly.

[29] In Huang the discussion moved rather subtly to a different place. In response to the argument presented for the Secretary of State, the issue addressed by Lord Bingham at paragraph 17 was not about the respect due to decisions as to the general interest made by democratically-elected assemblies: it was about the extent to which it can be assumed, if at all, that the legislator or rule-maker has struck an appropriate proportionality balance for article 8 ECHR private and family life purposes between the interests of the state and the interests of particular individuals disadvantaged by state interventions.

[30] Paragraph 49 of Izuazu concludes as follows:

"(vii)   There is a significant difference between broad issues of social policy and individual immigration decisions where there is private and/or family life to be respected. This is not a situation where Parliament has chosen to interfere with the rights of property holders by enabling tenants to enfranchise see (James v United Kingdom [1986] 8 EHRR 123 [sic], or when a court is able to prolong residence as a home beyond legal entitlement (Kay v Lambeth London Borough Council [2006] 2 AC 465).

(viii) We note, in any event, that as the Article 8 case law has developed Pinnock v Manchester Corporation [2011] UKSC 6 and after, [sic] there are more grounds to suggest that greater weight must be given to individualised consideration than was suggested to be the case in Kay."

It is self-evident that there is a difference between broad issues of social policy and individual immigration decisions; and it is self-evident that immigration cases are not about the first protocol, article 1, ECHR, the right not to be deprived of property as in James, nor about the article 8 ECHR right to respect for home life in the Kay sense, ie where eviction is threatened. Beyond these obvious points I must respectfully suggest that, while the dichotomy identified by the Upper Tribunal is a real one, it does not subsist in any difference between housing cases and immigration cases: the same potential for tension between policy, whether legislative or administrative, and individual article 8 ECHR rights is present in both kinds of case.

[31] We know this because Kay went on to Strasbourg where the court recalled that article 8 ECHR "concerns rights of central importance to the individual's identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community"; and where the court held that "the loss of one's home is the most extreme form of interference with the right to respect for the home". In other words, "individualised consideration" may be called for in such cases just as much as in immigration cases [Kay v United Kingdom (2012) 54 EHRR 30 at §§ 66-68, 74].

[32] Equally, and contrary to the distinction drawn in Izuazu, immigration cases are just as much about issues of policy as housing cases. It is trite that immigration rules are an executive statement of policy. To deny that there is a policy dimension risks being interpreted as an assertion that policy is not a relevant factor when it comes to making the article 8(2) proportionality assessment. The risk of this interpretation is increased when, as in Izuazu, it is not at all clear that the rules have been taken into account, let alone given appropriate weight in the actual assessment [Izuazu at §§ 23(i), 72, 75―85].

[33] I remind myself that Huang was correctly decided in the Court of Appeal except as to the issue - which passed by concession in the House of Lords - whether the conjoined Kashmiri case also had to be re-heard by the Immigration Appeal Tribunal. The Court of Appeal decided, and the House of Lords confirmed, that judicial decision makers, on appeal, exercise an original jurisdiction as to article 8 ECHR claims and ought not to show "deference" to the decisions of administrative decision makers on questions of proportionality [Huang v Secretary of State for the Home Department [2007] 2 AC 167 at § 21 per Lord Bingham of Cornhill giving the opinion of the appellate committee]. What part should the immigration rules play in the judicial proportionality assessment? There was consensus that the rules have a role; and there was divergence as to the precise role ― or at least as to the form of words that best describes the role.

[34] The Court of Appeal held that "deference" is due to the immigration rules with the effect that claims which fail under the rules can succeed on article 8 grounds outside the rules "only in truly exceptional" cases [Huang and Ors v Secretary of State for the Home Department [2005] EWCA Civ 105 at §§ 58-60 per Laws LJ giving the judgment of the court]. The appellate committee of the House of Lords held that "the terms of the rules are relevant... but they are not determinative". Lord Bingham opined that giving appropriate weight to the immigration rules is not aptly described by the term "deference": but he also emphasised the general desirability of applying the rules:

"There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on."

His Lordship said that while it is unnecessary to use a general legal test of "exceptionality" when making the assessment, the number of failed cases which succeed on article 8 ECHR grounds is likely to be "a very small minority" [Huang v Secretary of State for the Home Department [2007] 2 AC 167 at §§ 16 and 20 per Lord Bingham of Cornhill giving the opinion of the appellate committee].

[35] Non-lawyers might be bemused by the distinction between "a very small minority" of cases and "exceptional" cases. There are bound to be "exceptions" in the sense of cases to which the rules do not apply: that is in the nature of rules; it is in the nature of the immigration regime which reserves power to the Secretary of State to grant leave outside the rules; and it is the function of the article 8 ECHR guarantee to create exceptions which protect individuals from disproportionate interference otherwise sanctioned by the rules. Whichever formulation is used, clearly Dr Huang's case was potentially one of the very small minority of exceptions to the rules in the eyes of both the Court of Appeal and the House of Lords and on that account the case demanded to be re-heard by the Immigration Appeal Tribunal. If outcomes are going to be the same, then the difference between the Court of Appeal and the House of Lords can fairly be described as one of expression and emphasis.

[36] If I understand the Izuazu approach correctly it offers, in contrast, a potential justification for disregarding the rules altogether:

"The weight to be attached to... the rules will depend... on... the extent that the rules themselves reflect criteria approved in the previous case law of the Human Rights Court at Strasbourg and the higher courts in the United Kingdom."

This dictum is at least capable of meaning that if a rule is deemed ab ante to be non-ECHR-compliant then, effectively, it is irrelevant and has to be left out of account in the proportionality assessment [Izuazu (Article 8 - new rules) Nigeria [2013] UKUT 45 (IAC) at §§ 30, 43, 50(iii) and 67].

[37] The precise issue in Izuazu, as regards the new rules, was whether the claimant qualified for the exception permitting her to enter the United Kingdom notwithstanding that she would otherwise have been refused leave in terms of Appendix FM (family members), section R-LTRP (requirements for limited leave to remain as a partner). The exception in question is in section EX (exception):

"EX 1. This paragraph applies if... (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" [my emphasis].

The claimant was a Nigerian citizen and the partner was a dual Nigerian and British citizen settled for 23 years in the United Kingdom. The First-tier judge found that the relationship was genuine and subsisting.

[38] Both partners knew throughout that the claimant's immigration status was precarious; the claimant had twice, on previous occasions, overstayed her visitor visa for substantial periods; she had previously used false documents, including a forged settlement visa, to enable her to work illegally; she had entered the country again despite having been refused clearance and with false documents; and she had served a sentence of twelve weeks imprisonment in respect of convictions for using the false identity papers and a false national insurance number. The new rules clearly supported refusal of leave (subject to the exception mentioned above).

[39] The Upper Tribunal seems at one point to have suggested that the new rules or some of them are "not in accordance with law": if that were so, there would be no need to move to the fifth stage of the five-stage Razgar test and strike an article 8(2) ECHR proportionality balance [Izuazu (Article 8 - new rules) Nigeria [2013] UKUT 45 (IAC) at § 50(iii)]. At paragraph 53 the Upper Tribunal held that: "to reject a claim under Article 8 because the test of insurmountable obstacles is not met as the Secretary of State did... is to fail to comply with the principles of established law." The Upper Tribunal explained:

"58.     ... The requirement for exceptional circumstances or insurmountable obstacles has been authoritatively declared to be an erroneous one in the Article 8 immigration context by the House of Lords in Huang [2007] UKHL 11 at [20], EB Kosovo [2008] UKHL 41 at [8] [12] [18] [20] [21] and by the Court of Appeal on innumerable occasions including LM (DRC) [2008] EWCA Civ 325 at [11] and [13]; VW (Uganda) [2009] EWCA Civ 5 at [19] and [24]; JO Uganda [2010] EWCA Civ 10 at [14] to [15] and [23] to [26].

59.   Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these decisions are binding on the Upper Tribunal and will be followed by it."

I can conceive of several contrary arguments.

[40] First, I can understand that the Upper Tribunal, taking the view it did of the law, would have been reluctant to give the rules decisive weight: but I am unaware of any authority binding on me for giving the applicable rules or policy no weight at all in making a proportionality assessment; and as a matter of principle I would have thought that an article 8 ECHR "balancing exercise", such as the Upper Tribunal appears to have undertaken, requires the rules to be placed on one side of the scales in order to determine whether the "interference" which they represent is disproportionate. Secondly, the domestic law as it stood before the new rules came in had been shaped not only by the pre-existing rules but also by the non-existence of rules specifying the weight which policy attached, in the public interest, to a range of factors both positive and negative which commonly present in article 8 ECHR cases ― the non-existence of such rules being what the Secretary of State calls "a policy vacuum": therefore the existing case law insofar as depending on now-superseded rules is not directly relevant. Thirdly, and in any event, it is clear from the authorities referred to by the Upper Tribunal itself that the "insurmountable obstacles" formula has a respectable pedigree in the jurisprudence of the Strasbourg institutions, starting with the commission decision in Poku v The United Kingdom [1996] 22 EHRR CD 94, and that it has been subject to interpretation by the courts of England & Wales: the word "insurmountable" is not to be taken literally [LM (DRC) [2008] EWCA Civ 325 at §§ 11 and 13; VW (Uganda) [2009] EWCA Civ 5 at §§ 19 and 24; JO (Uganda) [2010] 1 WLR 1607 at §§ 14, 15, 23―26]. Fourthly, a point not apparently drawn to the attention of the Upper Tribunal, the new rules have to be read with the accompanying supplementary instructions which provide that leave will be granted outside the rules if a refusal within the rules "would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate" [quoted in Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin) at §§ 13-14]. (I am not altogether clear that the supplementary instructions were available at the time Izuazu was heard although an indication of the Secretary of State's thinking about "unjustifiably harsh outcomes" was given in the supplementary written submissions Appendix A, (iii).)

[41] In the present case counsel for the petitioner told me - correctly, as I now see - that it is only when you get almost to the very end of Izuazu that you realise that, despite everything that goes before, the Secretary of State has been successful. In the second last paragraph of the determination, the Upper Tribunal, having worked towards its decision by way of the principles developed by the courts during the "policy vacuum" years and having quoted none of the applicable rules apart from the "insurmountable obstacles" exception, concluded that: "the Secretary of State's decision is in accordance with the rules and applicable policy and is not unlawful." In re-making the decision the Upper Tribunal was able to take account of a newly-emerged fact, apparently unknown to the First-tier judge, namely that the claimant's partner had retained his Nigerian citizenship [Izuazu (Article 8 - new rules) Nigeria
[2013] UKUT 45 (IAC) at §§ 82, 85].

[42] If the Secretary of State's decision was in accordance with the rules and lawful, then one view of Izuazu might be that everything else in the determination is obiter. This is not to say that Izuazu does not have importance for its survey of the law by a highly expert tribunal: but it is a case that had an unusual dynamic. The claimant was represented by an experienced team of specialist barristers. While junior counsel appeared alone at the hearing, senior counsel was a co-signatory of the skeleton argument and the supplementary written submissions. (As it happens, senior counsel had appeared as junior to Nicholas Blake QC, as he then was, for the successful claimant in Huang.) If the Secretary of State feels aggrieved by the terms of the decision she may wish to ponder the fact that UKBA chose to represent the public interest in this appeal - presented in the Secretary of State's name on "a profoundly important new issue... with potential impact on many other cases" - with the underprepared services of a "senior Home Office presenting officer". (I hasten to add that the Upper Tribunal recorded that the state of preparation "does not appear to have been the individual responsibility" of the presenting officer.) The supplementary written submissions for the Secretary of State were signed by a Home Office official, the head of family migration policy [Izuazu (Article 8 - new rules) Nigeria [2013] UKUT 45 (IAC) at §§ 1-9, appendix A].

[43] In my opinion a more nuanced and persuasive perspective on the significance of the new rules is offered, if I may say so with respect, by another decision maker well-experienced in this field who had the assistance of specialist counsel on both sides of the argument. I am referring to the judgment of Sales J in Nagre, a judgment that has been handed down subsequent to the hearing in the present case [Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin) at §§ 28-31, 34, 35].

[44] My impression is that, in situations like the present one where the new rules bear to apply, article 8 ECHR issues will come to be resolved satisfactorily in terms of the rules in all but a small number of cases. Resolution within the rules includes granting leave in terms of the "insurmountable obstacles" exception. In marginal situations it will be for claimants to make the case for leave outside the rules. The present case is not a marginal one in my opinion. Had I been required to do so, I should have held that the decision maker has lawfully disposed of the human rights issue by reference to the rules alone. I take the view that the decision maker has separately and in addition made a "traditional" article 8 ECHR proportionality assessment which is not in any way flawed. The only rational view that could have been taken of this claim on the facts was that it is "clearly unfounded". I shall therefore repel the petitioner's plea-in-law (as substituted by amendment) directed against the lawfulness of the certification decision, repel the respondent's first and second pleas-in-law as having been superseded, sustain the respondent's third plea-in-law to the effect that the respondent has not acted irrationally or otherwise erred in law and refuse the petition reserving meantime all questions of expenses.

Postscript

[45] Since finalising this opinion I have seen the opinion of the Extra Division in MS (India) v Secretary of State for the Home Department [2013] CSIH 52 issued on 11 June 2013. The Extra Division refused the reclaiming motion against Lord Brodie's decision (referred to above) and adhered to Lord Brodie's disposal of the petition [MS (India) v Secretary of State for the Home Department [2013] CSOH 1]. The decision of the Extra Division is binding on me. I do not think that the decision requires me to revise this opinion; and since the decision confirms me in the views I have formed (above) on the basis of the submissions already made, neither do I think that I require to offer parties an opportunity to make further submissions.