Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 59
P1249/12	OPINION OF LORD BANNATYNE in the Petition of P S (AP) Petitioner; for Judicial Review of decisions of the Secretary of State for the Home Department and Answers for the Secretary of State for the Home Department Respondent: ________________

Petitioner: Forrest; Drummond Miller LLP

Respondent: Smith; Office of the Advocate General

16 April 2013

Introduction

[1] The petitioner was born in 1974. He is a national of India. The respondent is the Secretary of State for the Home Department. She is responsible for matters relating to immigration and nationality. She is represented in this petition by the Advocate General for Scotland as the appropriate law officer for the purposes of section 1 of the Crown Suits Act 1857.

Immigration History

[2] In 1998 the petitioner entered the UK. He lived at first with family in Glasgow. He subsequently moved to Bradford. In or around 2004, he claimed that he had developed a serious medical condition. He claimed that he had pains in his chest and was unable to breathe. He claimed that he had vomited blood. He attended hospital but the condition was not diagnosed. He remained at large in the community in Bradford. Sometime later he returned to Glasgow and again took up residence there. He claimed that his medical problems persisted. He complained of pain in his head. He again went to hospital on several occasions. No firm diagnosis was obtained. Hospital staff suggested that he might require to undergo treatment. He was detained as an in-patient in Glasgow Western Infirmary on several occasions, but always released. He stated that he had last required in-patient treatment approximately 5 to 6 years ago.

[3] On 24 July 2012, the petitioner claimed asylum and breach of his human rights, including his right to a private life in the UK. He was interviewed by the respondent on 30 August 2012. In terms of a letter dated 14 September 2012 ("the decision letter") the respondent rejected his claim. In particular she rejected his claim that to remove him from the UK would disproportionality interfere with his right to a private life in the UK. She in addition certified his claim as clearly unfounded in terms of section 94(3) of the Nationality, Immigration and Asylum Act 2002.

[4] On 6 November 2012, the respondent detained the petitioner. On 15 November 2012 she issued directions to remove him from the UK on 5 December 2012.

The petitioner's relationship with India

[5] The petitioner was born and brought up in India. He received his education in India. He lived in several cities in India. He worked in India and was able to support himself there. He speaks Hindi and Punjabi. His parents, siblings and cousin live in India. He has remained in contact with his parents while in the UK.

[6] The petition called before me for a first hearing on 29 January 2013 when Mr Forrest appeared for the petitioner and Ms Smith for the respondent. The petitioner sought reduction of the decisions of 14 September 2012 and 15 November 2012. The argument before me related entirely to the lawfulness of the decision letter of 14 September 2012. The challenge was confined to the decision refusing the petitioner's claim that his right to a private life in terms of article 8 ECHR would be breached by his return to India. It was accepted by Mr Forrest that the decisions on the petitioner's asylum claim and his claim regarding breach of his right to family life were unchallengeable.

The Issue

[7] The general background to the issue before me was the changes to the Immigration Rules (HC 194) which took effect at 9 July 2012 (hereinafter referred to as "The new Rules"). In general terms the issue of principle between the parties was this: what effect had the changes in the Immigration Rules had on the way in which, a decision of the type made by the respondent, in the instant case could lawfully be made. The position on this issue, taken by the two parties in the course of the discussion before me, can be summarised as follows: it was argued on behalf of the petitioner that the changes had had no material effect. It was contended on behalf of the respondent that the changes had had a very material effect.

Submissions for the petitioner

[8] Mr Forrest's primary submission was this: the respondent had erred in law when considering whether the removal of the petitioner would be a disproportionate interference with the petitioner's right to a private life in terms of article 8 ECHR in that she had failed to consider whether the petitioner had a claim that his right to respect for his private life in terms of article 8 may be infringed outwith the new Rules.

[9] It was Mr Forrest's primary contention that notwithstanding the changes to the Immigration Rules the question of compliance with the requirements of article 8 remained separate from and additional to the question of whether a person had an entitlement to remain in the United Kingdom under the new Rules. Thus, any decision maker who required to consider the petitioner's claim would require to follow a two stage process: asking, first, whether in terms of the new Rules the petitioner was entitled to remain in the United Kingdom and, secondly, whether, there would be a breach of article 8: this second stage would require the decision maker to come to an independent view as to whether the decision maker's decision was article 8 complaint, by going through the five step procedure as set out by Lord Bingham of Cornhill in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 at paragraph 17. Mr Forrest accepted that from 9 July the new Rules applied and they sought to prescribe exactly how a test of proportionality was to be met and thus defined a way in which an article 8 claim was to be dealt with. However, they did not exclude such claims outwith the Immigration Rules. In support of this he referred me to Huang v The Secretary of State for the Home Department [2007] 2 AC 167 and the well known observations of Lord Bingham of Cornhill at paragraph 17 when delivering the Opinion of the Court. He contended that a claim outwith the Rules required the respondent to recognise and have regard to and if appropriate give effect to a person's rights, in terms of ECHR including in terms of article 8 as laid out in the relevant domestic and Strasbourg jurisprudence (see: Syed and another v The Secretary of State for the Home Department [2011] EWCA Civ 1059 at paragraph 35). In addition he directed my attention to the introduction to appendix FM (GEN 1.1) and sections in the explanatory memorandum appended to the statement of changes introducing appendix FM and rule 276ABE. It was his position that the necessity for the decision maker to approach the matter in the way as set out by Lord Bingham of Cornhill in Huang was in no way ousted by the new Rules. Mr Forrest referred me to a case of the Upper Tribunal in which the effect of the changes brought about by the new Rules was discussed, namely: MF (article 8 - new Rules) (Nigeria [2012] UKUT 00393(IAC). Mr Forrest first pointed to paragraph 23 of the determination where the Upper Tribunal observes:

"Whilst, by virtue of their setting out specific requirements that have to be met in order for claims brought under the new family life or private life heads to succeed, it might be thought that the legal effect of these new Rules is to provide a complete code for assessing article 8 claims, we do not see that this is, or can be, the case for a number of reasons."

Thereafter the Upper Tribunal between paragraphs 23 and 25 set out their reasons for their said view.

Mr Forrest then referred me to the following further observations in the determination at para 32:

"It might be thought that one could deduce from the proposition that Immigration Rules very often have the force of law the position that insofar as the new Rules regulate how article 8 claims are to be assessed, judges must apply them in the same way as primary decision makers, so that the old two stage assessment is for the most purposes collapsed into a one stage assessment. But that would be wrong. The rules do not and cannot replace the law that is binding upon us."

[10] At paragraph 41 the Upper Tribunal then concludes as follows:

"the need for a two stage approach in most article 8 cases remains imperative because the new Rules do not fully reflect Strasbourg jurisprudence as interpreted by our higher courts and in particular they do not encapsulate the Maslov criteria."

[11] Mr Forrest then turned to apply the foregoing analysis to the terms of the decision letter itself.

[12] In the decision letter the issue of the petitioner's private life was dealt with by the respondent between paragraphs 66 and 71. Mr Forrest submitted that on a proper understanding of this section of the decision letter there was nothing, or at least very little, which indicated that any or sufficient consideration outwith the rules had been accorded to the petitioner's article 8 claim. Specifically at paragraph 67 he contended that all the respondent had looked at was the applicable new Immigration Rule. Between paragraph 68 and 70 he accepted that there was some indication that the respondent had given consideration to matters outwith the rule, however, when read in the context of paragraph 71 it was his submission that it was clear that the only factors which had been had regard to were those contained within the rule itself. In paragraph 71 the respondent expressly referred to the petitioner's failure to fulfil the requirements of rule 276BE of the Immigration Rules and referred to no other factors when she went on later in that paragraph to state that his removal from the UK would not amount to a disproportionate breach of his rights to family and private life.

[13] In summary therefore it was Mr Forrest's position that the respondent had erred by treating the new Rules as determinative of the question of proportionality and had given no or at least insufficient consideration to any other factors, such as the nature of the private life established by the petitioner while he had resided in the UK. He contended that having regard to MF the rules were no more than another factor to which weight should be attributed according to the individual circumstances of each case and that the respondent had not treated the rules in this way. It was thus his position that for this first reason the respondent's decision was unlawful.

[14] As I understood Mr Forrest's argument, it was implicit in what he had said in terms of his first argument, that there was a second and separate argument which he sought to advance: this second argument was to this effect: that if the respondent had in the decision letter considered circumstances outwith the new Rules, then she had erred in law by considering a test of whether the petitioner had established exceptional circumstances. It was his position that such a test, was not in accordance with domestic and Strasbourg jurisprudence and had been disavowed by the House of Lords in Huang. For this second reason the decision was unlawful.

[15] Mr Forrest's third ground of challenge reading short was this: if he was wrong in his assertion that the application of an exceptional circumstances test was unlawful, then it was his submission that the respondent had not taken into account whether there were exceptional circumstances outwith the new Rules which might render removal inappropriate. It was his position that the respondent had made no attempt to consider in terms of the petitioner's case whether there were any exceptional features which might preclude his removal outwith the new Rules.

[16] In conclusion it was the position of Mr Forrest that given the foregoing errors in approach it could not be said that the petitioner was bound to fail or that on no legitimate view of the facts could his claim succeed. Accordingly the respondent's decision to certify was unlawful and the decision should be reduced.

Reply on behalf of the respondent

[17] Ms Smith, moved me to refuse the petition in that the decision letter did not disclose an error of law, in rationality nor in failing to consider matters which the respondent ought to have.

[18] Her fallback position was that, if the respondent had failed to take the proper approach, such failure was not material, and could be assessed by this court and she submitted that the court should find the claim clearly unfounded.

[19] Ms Smith then turned first to address the issue of the proper approach to be adopted by an immigration judge or any decision maker when considering article 8 claims and submitted this: such a person must decide if removal would be disproportionate.

[20] She then turned to examine the effect of the new Rules on that task. She commenced this discussion by contending that the question in assessing proportionality is: whether it strikes a fair balance between the rights of the individual and the interests of the community (see: Huang at paragraph 19). It was her position that the new Rules were a statement of the respondent's practice in deciding applications.

[21] In putting the new Rules forward the respondent she submitted had carefully considered the broad principles set out in the Strasbourg and domestic case law in order to formulate the new Rules. She submitted that the new Rules properly reflected the correct balance in the great majority of cases, between individual rights and the wider public interest in maintaining immigration control and protecting the public from criminals.

[22] Moreover, although she accepted that the new Rules did not bind the courts in the same way as primary legislation, they were, she submitted, a clear, democratically endorsed, statement of public policy which must now be taken into account by the courts when assessing proportionality. The respondent's position was that she would expect the courts to defer to the view endorsed by Parliament on how, broadly, public policy considerations were weighed against individual family and private life rights, when assessing article 8 considerations in any individual case. That is, save in a narrow group of cases where it was found that the consequences of the immigration decisions were exceptional.

[23] Thus she submitted that the new Rules reflected as a matter of public policy, the government and Parliament's view as to how the individual's right to respect for private life should be qualified in the public interest to safeguard matters which article 8 allows to be protected.

[24] The foregoing submissions were made under reference to the detailed position which the Secretary of State had propounded in a letter to the Honourable Mr Justice Blake, President of the Upper Tribunal, Immigration and Asylum Chamber dated 14 September 2012 which was provided to me in the course of submissions.

[25] Accordingly, it was her position that it was sufficient for a decision to be proportionate if (i) an applicant failed to satisfy the new Rules and (ii) his circumstances were not exceptional as understood inter alia by the Court of Appeal in Huang [2006] QB 1 at paragraph 59 and as endorsed in the decision of Lord Brodie in MS v The Secretary of State for the Home Department [2013] CSOH 1.

[26] Her position in summary was therefore this: the new Rules had had a very material effect in relation to the way in which a decision such as for example leave to remain can lawfully be made. It was her position that the new Rules, for the reasons she had set out, had undermined and overtaken the reasoning of the House of Lords in Huang and accordingly the decision of the House of Lords in Huang was no longer of relevance. It was her position that the proper understanding of the matter was as set forth by the Court of Appeal in Huang. She submitted that the correct approach was no longer the two step test. It was her position that the submissions of Mr Forrest were incorrect and that the case of MF had been wrongly decided.

[27] Ms Smith found support for her position in the Opinion of Lord Brodie in MS at paragraph 30.

[28] In that case Lord Brodie was addressed on the same issue of principle as that which was the subject of argument before me.

[29] Between paragraphs 24 and 29 Lord Brodie considered the background to the changes to the Immigration Rules and the decisions of both the House of Lords and Court of Appeal in Huang. He thereafter at paragraph 30 went on to set out his opinion in relation to the effect which the rule changes had had:

"[30] There can be no real doubt but that the respondent, by securing that the changes to the Rules have been debated in both Houses of Parliament without any formal expression of disapproval, must be taken to have the support of the legislature for her approach to the question as to whether it will be proportionate to remove persons from the United Kingdom who have no right to remain other than that which may be conferred by article 8 of the Convention. Had that been the case in relation to the relevant rules when Huang was before the House of Lords, the judicial committee would have had to recognise that fact and give it considerable weight for the reasons articulated by Laws LJ when Huang when was in the Court of Appeal. While it is indeed true that constitutionally the protection of individual fundamental rights is within the particular territory of the courts (see Huang v Home Secretary [2006] QB 1 at para.55), the judiciary has no special expertise in determining what is or is not proportionate. It is because it is part of the function of an administrative decision-maker to make proportionate decisions that such decisions may be considered unlawful if they interfere with article 8 rights (for example) and are not proportionate. However, the different status that may be accorded to those provisions of the Immigration Rules which were changed as from 9 July 2012, in contrast to the Rules under consideration in Huang does not, in my opinion, justify the conclusion that the unanimous opinion of the judicial committee in that case no longer represents the law because it has lost its underlying rationale. In Huang the focus was on interference with family life. The judicial committee concluded that in determining an appeal the decision on the proportionality of such interference was an autonomous one for the adjudicator. Its opinion is succinctly stated at para 20 of [2007] 2 AC 167:

'20 In an article 8 case where this question [scilicet the question as to whether a decision was proportionate] is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide'.

I take that still to be the law. However, in giving the opinion of the judicial committee, Lord Bingham continued:

'It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, para.20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test'.

If those who did not qualify for leave to remain under the Rules as they were at the time of the decision of the House of Lords in Huang but would be entitled to succeed under article 8 was 'a very small minority', it must follow that now the respondent has specifically addressed the impact of article 8 in drafting changes to the Rules and has obtained the endorsement of Parliament as to the proportionality of the way in which she has done so, those who now might be expected 'to succeed under article 8' will be a very small minority indeed. As long as the Rules have not been enacted as either primary or secondary legislation their application in a particular case may amount to a breach of Convention rights: Pankina v Secretary of State for the Home Department supra Sedley LJ at para 44, but where the Rules have been redrafted with a view to avoiding contravention of article 8 and where that redraft has been approved by Parliament in the manner described above, a case which succeeds on article 8 having failed in terms of the Rules would have to be described as exceptional. The respondent's argument in the present case goes no further than that."

[30] Ms Smith then turned to apply her contended approach to the decision letter. She submitted that the start point must properly be the rules and the question had to be asked did the petitioner succeed in terms of the rules? The answer was clearly no and that was not contested on behalf of the petitioner. She then submitted that applying the correct approach the question was then were his circumstances exceptional? She submitted that there was no information to suggest that the circumstances were exceptional and accordingly the decision was correct in law. She submitted that it was not necessary when there was plainly no exceptionality to specifically exclude it in the decision (see: MS at paragraph 33).

[31] Ms Smith also advanced a fall-back position which was to the following effect: that even if she was wrong in what she had submitted to this point, namely: that there was no need to specifically include a consideration of exceptionality, nevertheless reasons were in fact identified that did take account of the petitioner's private life in the UK and in India and accordingly the respondent had taken account of all factors.

[32] Lastly, it was the submission of Ms Smith that even if the proper approach were the two stage one, as submitted on behalf of the petitioner, and it was found that the decision letter had not approached the matter in that way then the start point remained the same whether the petitioner had satisfied the rules and the answer to that question remained the same, namely: no. Thereafter when a separate consideration of article 8 was carried out the outcome was the same as above. The claim was bound to fail given the history in the UK and given his connection to India.

[33] Ms Smith's position was that the task of the court when considering a section 94(2) case was this:

"23. Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational."

(See: the speech of Lord Phillips of Worth Matravers in ZT (Kosovo) v Secretary of State for the Home Department [2009] 1WLR 348 at para 23).

Discussion

[34] The background to the argument before me was section 94 of the Nationality, Immigration and Asylum Act 2002. The relevant parts of which are in the following terms:

"(2) A person may not bring an appeal to which this section applies....if the Secretary of State certifies that the claim or claims....is or are clearly unfounded.

(3) If the Secretary of State is satisfied that an asylum seeker is entitled to reside in a state listed in subsection (4), he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded."

India is one of the states listed in subsection (4) of section 94 of the Act.

[35] The test as to whether section 94 is satisfied is a high one and is this: it amounts to whether a reasonable decision-maker would be satisfied that the claim would be bound to fail or cannot on any legitimate view of the facts succeed.

The issue of principle

[36] The issue of principle in the case before me is very neatly encapsulated by Lord Brodie in MS at paragraph 24:

"The primary question of principle as identified in argument therefore was whether the changes to the Immigration Rules effected by the respondent in July 2012 have resulted in a material change in the way in which a decision on, for example, leave to remain, can lawfully be made."

Given the nature of the argument before me it is perhaps convenient at this point to make certain observations about the nature of the Immigration Rules and the changes which were brought into force on 9 July 2012.

[37] The status of the Immigration Rules was recently considered by the House of Lords in Odelola v Secretary of State for the Home Department [2009] UKHL 25. The material points made by the House of Lords in that case are conveniently summarised at paragraph 32 by the Upper Tribunal in The Secretary of State for the Home Department v Izuazu [2013] UKUT 00045 (IAC) as follows:

"(i) The rules are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. They are essentially executive not legislative (per Lord Hoffman at (6); Lord Brown at (17), (34), (35)).

(ii) The rules are those of the Secretary of State not Parliament albeit that they are laid before Parliament (Lord Brown at (27)).

(iii) The rules nevertheless create legal rights and effects and provide a ground of appeal under section 84(1)(a) of the Nationality, Immigration and Asylum Act 2002, 'that the decision is not in accordance with Immigration Rules.'

(iv) When deciding appeals on this ground judges of this and the First Tier chamber are bound by and must apply the rules (Lord Hoffman at (6), Lord Brown at (27), Lord Neuberger at (51)). To this extent as the tribunal acknowledged in MF they have the force of law, not because they are law, but because the law relating to immigration appeals affords them a binding status for certain purposes and precludes judges exercising a discretion differently from the Secretary of State other than a discretion conferred under the rules (section 84(1)(f))."

[38] Turning more particularly to the new Rules, they are a series of changes to the Immigration Rules and were laid before Parliament on 13 June 2012.

[39] As regards the procedural course which was followed by Parliament in relation to the new Rules it was as follows: the House of Commons debated a motion tabled by the Government in support of these rules on 19 June 2012. The motion was carried without a division. The conventional negative resolution procedure required by the Immigration Act 1971, section 3(2) was adopted in the House of Lords. Both houses were thus content for the Secretary of State to adopt the statement of practice that she had laid before them.

[40] When the new Immigration Rules were laid before Parliament on 13 June 2012 they were accompanied by an explanatory statement which sought to indicate the purpose of the new Rules:

"to provide a clear basis for considering immigration family and private life cases in compliance with article 8 of the European Convention on Human Rights (the right to respect for private and family life). In particular the new Immigration Rules reflect the qualified nature of article 8, setting requirements which correctly balance the individual's right to respect for private and family life with the public interest in safeguarding the economic wellbeing of the UK by controlling immigration and protecting the public from foreign criminals."

Thus the respondent appeared to be seeking to achieve the following in terms of the new Rules: to satisfy within the rules the article 8(2) requirements of proportionality. In doing so she sought to make the task of the decision-maker as follows: to ask (i) does the applicant satisfy the rules and (ii) if not, are there any exceptional circumstances which have been shown.

[41] The question before me was to what extent had the respondent been successful in achieving this end?

[42] In considering this question the starting point I believe must be the decision in Huang v Secretary of State for the Home Department [2007] 2 AC 167.

[43] Lord Bingham of Cornhill giving the judgment of the Appeal Committee at paragraph 6 observed this regarding the Immigration Rules:

"6. In this country, successive administrations over the years have endeavoured, in Immigration Rules and administrative decisions revised and updated from time to time, to identify those to whom, on grounds such as kinship and family relationship and dependence, leave to enter or remain should be granted. Such rules, to be administratively workable, require that a line be drawn somewhere. Thus, for example, rule 317, relevant to the claim of Mrs Huang, makes provision for the admission of a parent, grandparent or other dependent relative of any person present and settled in the United Kingdom if (among other grounds) she is a mother or grandmother who is a widow aged 65 years or over. Mrs Huang does not qualify under this head since she was not, when the decision was made, aged 65 or over and she is not a widow. Such a rule, which does not lack a rational basis, is not to be stigmatised as arbitrary or objectionable. But an applicant's failure to qualify under the rules is for present purposes the point at which to begin, not end, consideration of the claim under article 8. The terms of the rules are relevant to that consideration, but they are not determinative." (my emphasis)

[44] At paragraph 16 he went on to further comment regarding the Immigration Rules as follows:

"16. The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2). 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. In some cases much more particular reasons will be relied on to justify refusal, as in Samaroo v Secretary of State for the Home Department [2002] INLR 55 where attention was paid to the Secretary of State's judgment that deportation was a valuable deterrent to actual or prospective drug traffickers, or R (Farrakhan) v Secretary of State for the Home Department [2002] QB 1391, an article 10 case, in which note was taken of the Home Secretary's judgment that the applicant posed a threat to community relations between Muslims and Jews and a potential threat to public order for that reason. The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed. It is to be noted that both Samaroo and Farrakhan (cases on which the Secretary of State seeks to place especial reliance as examples of the court attaching very considerable weight to decisions of his taken in an immigration context) were not merely challenges by way of judicial review rather than appeals but cases where Parliament had specifically excluded any right of appeal."

[45] At paragraph 17 he went on to set out the argument of counsel for the Secretary of State regarding the effect of the Immigration Rules which he opined went much further than what he had set out in paragraph 16 and was to this effect:

"She relied by analogy on the decision of the House in Kay v Lambeth London Borough Council [2006] 2 AC 465, where the House considered the article 8 right to respect for the home. It held that the right of a public authority landlord to enforce a claim for possession under domestic law against an occupier whose right to occupy (if any) had ended and who was entitled to no protection in domestic law would in most cases automatically supply the justification required by article 8(2), and the courts would assume that domestic law struck the proper balance, at any rate unless the contrary were shown. So here, it was said, the appellate immigration authority should assume that the Immigration Rules and supplementary instructions, made by the responsible minister and laid before Parliament, had the imprimatur of democratic approval and should be taken to strike the right balance between the interests of the individual and those of the community."

[46] The argument which was presented on behalf of the Secretary of State in Huang is on all fours with the argument which was put before me by Ms Smith who also specifically relied by analogy on Kay v Lambeth Borough Council.

[47] Lord Bingham having set out the Secretary of State's argument went on to make the following observations in relation to that argument:

"The analogy is unpersuasive. Domestic housing policy has been a continuing subject of discussion and debate in Parliament over very many years, with the competing interests of landlords and tenants fully represented, as also the public interest in securing accommodation for the indigent, averting homelessness and making the best use of finite public resources. The outcome, changed from time to time, may truly be said to represent a considered democratic compromise. This cannot be said in the same way of the Immigration Rules and supplementary instructions, which are not the product of active debate in Parliament, where non-nationals seeking leave to enter or remain are not in any event represented. It must be remembered that if an applicant qualifies for the grant of leave to enter or remain under the rules and is refused leave, the immigration appeal authority must allow such applicant's appeal by virtue of paragraph 21(1)(a) of Part III of Schedule 4 to the 1999 Act. It is a premise of the statutory scheme enacted by Parliament that an applicant may fail to qualify under the rules and yet may have a valid claim by virtue of article 8".

[48] Accordingly, it appears to me, that in order to answer the question of principle which I posed earlier in this opinion I require to consider the following questions:

(a) Are the new Immigration Rules such that the reasoning of Lord Bingham in delivering the Opinion of the House in Huang is rendered no longer applicable?

(b) Should the courts now hold that domestic law (that is the new Rules) strike the appropriate balance other than in exceptional circumstances?

(c) Do the new Rules restore the exceptionality test laid out by the Court of Appeal in Huang and disapproved of by the House of Lords in Huang?

Before turning to these specific questions I would first observe that it was not contended before me that the new Immigration Rules themselves are not compatible with ECHR.

[49] Having regard to the comments of Lord Bingham earlier quoted at paragraph 16 in Huang, I am satisfied that there is nothing unlawful in the respondent within the new Rules publishing policies and practices designed to take account of and thus give effect to convention rights and further to set forth factors reflecting the wider public interest in maintaining immigration control.

[50] Secondly, however, with respect to the respondent's position as set out by Ms Smith, I am not persuaded that this is correct and it seems to me that it materially overstates the effect of the new Rules. In so holding I would refer to the decision of the Upper Tribunal in Izuazu. In that case the Upper Tribunal was chaired by the Honourable Mr Justice Blake, President of the Upper Tribunal, Immigration and Asylum Chamber. Senior Immigration Judge Storey who had sat in MF was a member of the tribunal. Lastly, I also sat as a member of the Upper Tribunal when the foregoing case was being heard.

[51] The issue before the Upper Tribunal on that occasion was in all material respects that which was before me in the instant case. Moreover, the argument, put forward on behalf of the Secretary of State in all essentials was that advanced by Ms Smith before me.

[52] Although the decision in Izuazu was not published at the time that the instant matter came before me, Ms Smith was aware of the submissions on behalf of the Secretary of State in Izuazu and in fact referred me to them in the course of her address to me.

[53] Specifically it was argued in both cases that the new Rules now represented a considered, democratic compromise. Ms Smith submitted that the argument put forward on behalf of the Secretary of State in Huang in the House of Lords founded by analogy on the decision of the House in Kay v Lambeth Borough Council was correct. She argued that because of the consideration in Parliament of the new Rules that the observations by Lord Bingham in delivering the Opinion of the Court in the House of Lords in Huang at paragraph 17 were no longer applicable.

[54] I am not persuaded by this argument for the reasons as set out in Izuazu at paragraphs 48 and 49 where the Upper Tribunal stated the following:

"48. First, the reference to Parliament's approval of HC 194 seems an attempt to approximate the rules to a statutory assessment of the balance between competing interest such as that considered by the House of Lords in Kay v Lambeth Borough Council [2006] 2 AC 465 on which the Secretary of State placed reliance in her submissions in the case of Huang (loc cit) see [17].

49. We cannot agree, for the following reasons:

(i) Lord Bingham's answer to the point remains a good one:

'the Immigration Rules and supplementary instructions are not the product of active debate in Parliament where non-nationals seeking leave to remain are in any event not represented.'

(ii) Only the Parliamentary process for primary legislation permits a clause by clause discussion of the measures, with opportunity for amendments and revision.

(iii) By comparison, we accept the claimant's contention that the procedure adopted here provided a weak form of Parliamentary scrutiny: see R (Stellato) v SSHD [2007] UKHL 5, [2007] 2 AC 70 at [12].

(iv) There may have been more active debate of the new Rules in the House of Commons than is often the case under the negative procedure resolution, but the House of Commons is not Parliament and it has long been the law that a resolution of the House of Commons is not given supremacy akin to primary legislation by the court: see Stockdale v Hansard (1839) 9 A and E 1. The position has been succinctly summarised by A W Bradley and K D Ewing Constitutional and Administrative Law (15^th Edition 2011 p.54):

'An Act of Parliament has legal force which the courts are not willing to ascribe to other instruments which for one reason or another fall short of that pre-eminent status. Thus the following instruments do not enjoy legislative supremacy and the courts will if necessary decide whether or not they have legal effect: a) a resolution of the House of Commons.'

(v) Just as in the case of Huang, Parliament has not altered the legal duty of the judge determining appeals in both Chambers, to decide on proportionality for him or herself.

(vi) A claimant who relies on Article 8 will by definition have failed to succeed under the rules but may succeed under the law on Article 8 grounds despite the provisions of the rules. A failure to comply with the Rules thus remains the starting point of the Article 8 inquiry and not its conclusion.

(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, 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, there are more grounds to suggest that greater weight must be given to individualised consideration than was suggested to be the case in Kay."

[55] It appears to me that each of the reasons above stated is equally applicable to the circumstances in the instant case.

[56] As regards the point made above at (i), I would observe that it was never submitted before me that the new Rules had been: "a continuing subject of discussion and debate in Parliament over years". Nor was it suggested to me, how the interests of non-nationals seeking leave to remain, had in any way been represented in Parliament when the new Rules were being considered. It does not appear to me that the new Rules in any way answer the points made by Lord Bingham. It does not appear to me that the rationale for Lord Bingham's comments in Huang has been removed by the new Rules.

[57] I also note that certain support for that view can be found in the Opinion of Lord Brodie in MS at paragraph 30 where he observes as follows:

"[30] There can be no real doubt but that the respondent, by securing that the changes to the Rules have been debated in both Houses of Parliament without any formal expression of disapproval, must be taken to have the support of the legislature for her approach to the question as to whether it will be proportionate to remove persons from the United Kingdom who have no right to remain other than that which may be conferred by article 8 of the Convention. Had that been the case in relation to the relevant rules when Huang was before the House of Lords, the judicial committee would have had to recognise that fact and give it considerable weight for the reasons articulated by Laws LJ when Huang when was in the Court of Appeal. While it is indeed true that constitutionally the protection of individual fundamental rights is within the particular territory of the courts (see Huang v Home Secretary [2006] QB 1 at para 55), the judiciary has no special expertise in determining what is or is not proportionate. It is because it is part of the function of an administrative decision-maker to make proportionate decisions that such decisions may be considered unlawful if they interfere with article 8 rights (for example) and are not proportionate. However, the different status that may be accorded to those provisions of the Immigration Rules which were changed as from 9 July 2012, in contrast to the Rules under consideration in Huang does not, in my opinion, justify the conclusion that the unanimous opinion of the judicial committee in that case no longer represents the law because it has lost its underlying rationale."

[58] I now turn to the second issue which was this: if the applicant cannot succeed in terms of the rule is the test thereafter whether there are "exceptional circumstances"?

[59] I am not persuaded that this is correct for broadly the reasons set out in Izuazu at paragraph 50:

"50. Second, we are equally unimpressed with the submission that following the adoption of HC 194 and Appendix FM, the test to be applied by the judge in deciding whether the decision is in accordance with the law is whether there are 'exceptional circumstances' for allowing the appeal notwithstanding the absence of compliance with the Rules:

i) Article 8 decisions apply to a wide variety of people: some may be outside the UK and seeking entry clearance to enter; others may be waiting a first decision on leave to enter albeit physically present, some may have entered irregularly before establishing private and family life; others will have established such private and family life during periods of lawful residence and have had the reasonable expectation that their future lay in the UK.

ii) One size does not fit all. It is not possible to apply one set of criteria, such as whether there are 'insurmountable obstacles' to these divergent cases, where the case law indicates that a fact sensitive assessment is necessary. The Upper Tribunal made similar observations in its decision in Sanade and others [2012] UKUT 468 (IAC) [2012] Imm AR 597 before the new Rules were adopted at [35] and [37]. The House of Lords has deprecated the test of exceptional circumstances in Huang and further explained why in EB Kosovo (see below at paragraph 56 below). In our judgment these observations remain as true after the new Rules came into force, as before.

iii) The package of changes made in regulating the admission of family members, grant of leave to remain or their expulsion are generally considerably more rigorous than previous practice. We note the Secretary of State's response to our question 1 and accept that HC 194 and Appendix FM does not reproduce every negative factor that has been identified in the case law of domestic and international courts. Nevertheless, it imposes very exacting requirements in a number of circumstances: minimum income at significantly higher levels than subsistence, continuous residence for 20 years in private life claims and in certain cases the absence of any ties; insurmountable obstacles to cohabitation by spouses and the like. The 'in accordance with the law' limb of the appeal is thus likely to arise as a real issue in more rather than fewer appeals."

[60] Turning to the opinion of Lord Brodie in MS upon which certain reliance was placed by Ms Smith in the course of her submissions to me.

[61] I note that at paragraph 30 Lord Brodie when continuing his analysis of the effect of the new Rules observes as follows:

"In Huang the focus was on interference with family life. The judicial committee concluded that in determining an appeal the decision on the proportionality of such interference was an autonomous one for the adjudicator. Its opinion is succinctly stated at para 20 of [2007] 2 AC 167:

'20 In an article 8 case where this question [scilicet the question as to whether a decision was proportionate] is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. '

I take that still to be the law. However, in giving the opinion of the judicial committee, Lord Bingham continued:

'It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test. '

If those who did not qualify for leave to remain under the Rules as they were at the time of the decision of the House of Lords in Huang but would be entitled to succeed under article 8 was 'a very small minority', it must follow that now the respondent has specifically addressed the impact of article 8 in drafting changes to the Rules and has obtained the endorsement of Parliament as to the proportionality of the way in which she has done so, those who now might be expected 'to succeed under article 8' will be a very small minority indeed. As long as the Rules have not been enacted as either primary or secondary legislation their application in a particular case may amount to a breach of Convention rights: Pankina v Secretary of State for the Home Department supra Sedley LJ at para 44, but where the Rules have been redrafted with a view to avoiding contravention of article 8 and where that redraft has been approved by Parliament in the manner described above, a case which succeeds on article 8 having failed in terms of the Rules would have to be described as exceptional. "

[62] In my view a proper understanding of what Lord Brodie is saying at this point in his opinion is this: not that there is an "exceptional circumstances" test, but rather that only a "very small minority" of cases will be entitled to succeed under article 8 outwith the rules and that given that very small number those cases could properly be described as exceptional, i.e. such cases would be the exception.

[63] Such an understanding of what Lord Brodie says would be in conformity with Huang at paragraph 20, which Lord Brodie has said remains the law. Such a reading would also be in conformity with the following decisions in which the requirement for exceptional circumstances or insurmountable obstacles has been declared to be an erroneous one in article 8 cases in the context of immigration cases by the House of Lords, see: Huang 2007 UKHL 11 at 20; EB (Kosovo) [2008] UKHL 41 at 8, 12, 18, 20 and 21 and 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 14-15 and 23-26. Thus to apply such an approach would fail to comply with well-established legal principles. Although a slight difference in emphasis may be detected between the views of Lord Brodie and those I am expressing, I do not believe on a proper reading there is any material difference on the issues of principle.

[64] A third issue, which was identified in the case of Izuazu was this:

"52. Third, we do not accept that all the criteria set out in HC 194 accord with the criteria for an Article 8 assessment established by the existing case law. The law relating to the best interests of minor children resident is one such issue, that we have already noted. We share the concerns of the Tribunal in MF that provisions of the Appendix FM do not appear to reflect the principle that a primary consideration in immigration decision making is the welfare and best interests of the child. The more the new Rules restrict otherwise relevant and weighty considerations from being taken into account, the less regard will be had to them in the assessment of proportionality. We do need not consider this further in the present appeal case as there are no such children."

[65] As in Izuazu I do not require to consider the issue further in this appeal as there are no such children. However, this again is a further reason why I believe that the submissions made by Ms Smith are not correct.

[66] During the course of argument before me I was referred to APS v The Secretary of State for the Home Department [2013] CSOH 16, an opinion of Lord Burns. At paragraph 48 Lord Burns made the following observation:

"[48] Mr Forrest further argued that the respondent ought to have proceeded to consider the question of whether the petitioner had established a family life and a private life outwith the context of the new Rules. However, having accepted that those rules were not incompatible with the Convention and standing the explanation of the purpose of those rules set out above, I do not understand how it can be argued that such an exercise required to be carried out. Those rules are said to be designed to strike the balance between the public interest and the private right ."

[67] These observations, clearly run counter to the decision which I have reached. With respect I would disagree with the opinion expressed by Lord Burns in APS, for the reasons which I have earlier stated. It seems to me on reading Lord Burns' opinion that he was not favoured with such a full argument as I was in the instant case.

[68] Accordingly for the foregoing reasons I would answer the questions which I earlier posed at (a), (b) and (c) all in the negative. Accordingly on the issue of principle I find myself in broad agreement with the submissions for the petitioner.

[69] I now turn to apply the foregoing analysis to the circumstances of the instant case. Although the approach of the respondent is incorrect, I do not believe that there is any basis for holding that the decision of the respondent should be reduced.

[70] On the basis of the information before the respondent, she was entitled to hold the test in terms of section 94 was satisfied. It cannot be argued that a reasonable decision-maker approaching the issue in the correct manner would be other than satisfied that this claim would be bound to fail. On no legitimate view of the facts could the petitioner have succeeded.

[71] Applying the proper approach which I have above identified, to the circumstances of the instant case, it is my judgment that the respondent's conclusion that the petitioner's claim, on the basis that his article 8 right to private life would be breached by his return to India was clearly unfounded is rational and thus lawful.

[72] The following information was before her:

1. The petitioner was born and brought up in India.

2. He received his education in India.

3. He lived in several cities in India.

4. He worked in India and was able to support himself there.

5. He speaks Hindi and Punjabi.

6. His parents, sibling and cousin reside there.

7. He has maintained contact with them.

These factors were taken into account at paragraph 70 of the decision letter.

[73] Having regard to these factors the said claim was bound to fail and on no legitimate view of the facts could it succeed. Accordingly this judicial review must fail.

Decision

[74] I repel the petitioner's pleas in law; uphold the respondents pleas in law, and refuse the prayer of the petition. I was not addressed on the issue of expenses and have reserved any decision on this issue.