Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 81
P101/13	OPINION OF LADY WISE in the Petition A A A Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department dated 30 July 2012 refusing to treat the petitioner's further submissions as a fresh claim ________________

Petitioner: Dewar QC, Winter; Drummond Miller LLP

Respondent: Webster; Office of the Advocate General

2 May 2014

Introduction

[1] The petitioner was born in Pakistan on 5 December 1969. There is some confusion about when he entered the United Kingdom. He initially claimed to have left Pakistan in December 2002 and arrived in the UK early in 2003. However he subsequently claimed to have travelled to the UK in 2005. He lived and worked intermittently in the UK without any right to reside here until he was arrested for a road traffic offence on 16 March 2010. Eventually he claimed asylum and later sought to rely on certain human right grounds under the European Convention on Human Rights (ECHR). His claim was refused by the UK Borders Agency and an appeal was unsuccessful, being refused by Immigration Judge Dennis on 29 February 2012 The petitioner became appeal rights exhausted on 16 March 2012. By letter dated 4 July 2012, through his solicitors, he submitted further submissions which he wished to be treated as a fresh claim. These focused particularly on article 8 ECHR. The respondent refused that application by letter dated 30 July 2012 (no. 6/1 of process). The petitioner's article 8 claim was dealt with under reference to paragraph 276ADE of the immigration rules, introduced with effect from 9 July 2012. Regard was given to the exceptions listed in EX.1.1 of appendix FM of those rules. The article 8 claim was refused on the basis that the petitioner had not demonstrated that he fulfilled the requirements of the said rules. Following the issuing of the refusal letter, the respondent became aware of Upper Tribunal decisions such as Izuazu (Nigeria) [2013] UKUT 43 (IAC) and MF (Nigeria) [2012] UKUT 00383 (IAC). Those decisions were to the effect that where a claimant does not meet the requirements of the new rules, an immigration judge must then go on to make an assessment of whether that claimant's article 8 rights are nonetheless breached according to the criteria established by law. The respondent appealed MF (Nigeria) case to the Court of Appeal, but meantime issued further letters of explanation to various claimants, including the petitioner, dealing with general article 8 considerations. The respondent's further letter to the petitioner is dated 18 March 2013 and is lodged as no 6/4 of process. This petition, initially seeking a review of the decision letter of 30 July 2012 was raised on 30 January 2013. It was subsequently amended to take account of arguments relating to 18 March 2013 letter. When the case came before me for a hearing, the Court of Appeal decision in MF (Nigeria) v Secretary of State for the Home Department was not available. A subsequent hearing was fixed for submissions to be made on that decision once it was issued. The substantive discussion was also informed by a decision of the Inner House following the introduction of the new rules, namely MS v Secretary of State for the Home Department [2013] CSIH 52.

The substance of the petitioner's proposed fresh claim

[2] The petitioner's fresh claim was made under paragraph 353 of the immigration rules which provides:

"When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions, and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success notwithstanding its rejection".

[3] The material provided on behalf of the petitioner in support of the claim included a signed statement by him setting out some of the background to his departure from Pakistan. So far as the article 8 claim was concerned he confirmed that since coming to the UK he had met his wife, NA. He first met her on 1 August 2011. That was known to the immigration judge at the hearing in February 2012 and NA, who was by then married to the petitioner, had given evidence. However, the fresh claim indicated that the petitioner's wife had felt under pressure when giving evidence and had accepted something that was not the case. This is a reference to paragraph 43 of the immigration judge's decision of 29 February 2012, no 6/3 of process. It is there recorded that when the petitioner's wife was specifically asked whether she would go with him if the appellant was returned, she replied "Of course, I will bring him back, why would he have to go back to Pakistan?". The question was again explained and repeated to her, she replied again that she would return with the petitioner to Pakistan. She accepted that she had a Pakistani national identity card and a Pakistani passport. When she was subsequently asked whether, if the petitioner returned to Pakistan she could go with him to live there, she replied "Yes". In the subsequent statements submitted with the fresh claim the petitioner stated that his wife had not been back to Pakistan since she was a child and that she told him after the hearing that she had simply said in evidence what she thought those in court wanted to hear. It was submitted that the petitioner's wife has her children in the United Kingdom as well as the rest of her family and would not be able to move to Pakistan. A statement was also provided by NA to similar effect. She confirmed that she had previously been married and had two adult children from her first marriage. She had been divorced since 2000 after which her two sons moved in with their father although she had kept a good relationship with them ever since. She confirmed that she had married the petitioner within a month or so of meeting him and that she did not know at the time the full extent of his immigration problems. She did not know that he was in the United Kingdom illegally until after they married. Her position in the statement was that, notwithstanding what she had told the immigration judge, she cannot go back to Pakistan. Her family are in the UK and her sons live within 15 to 20 minutes drive from her house. She sees them often and she has a mother and three sisters who she sees regularly. Although born in Pakistan, NA has resided in the UK since she was about 7 years old. Although she speaks Punjabi, her position is that the culture was completely different in Pakistan and she could not adapt. Certain other documentation was submitted with the fresh claim in support of the representations made.

The decision letter of 30 July 2012

[4] The respondent's decision letter narrates the correct approach in law to considering whether or not further submissions amount to a fresh claim. There was no dispute about this at the hearings before me. Reference was made to WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 and to YH (R on the application of) v Secretary of State for the Home Department [2010] EWCA Civ 16. The letter then considers medical matters no longer insisted in. The substance of the decision on article 8 begins at paragraph 39. The claim that the petitioner's wife could not go back to Pakistan if the petitioner is returned is summarised. Reference is then made, at paragraph 40, to a full consideration of the petitioner's article 8 rights having been made by the immigration judge in February 2012. Various passages of that decision are cited. The material passage relevant to the proposed fresh claim is in the following terms:

"It has been repeatedly found that the appellant has not posed any risk on return to Pakistan. If his wife chooses not to return with him, he may apply, properly, for re-entry under paragraph 281 for the purpose of settlement as a spouse. There are no particular circumstances here which would, itself, render this disproportionate. There are no children. The appellant's wife is not dependent upon him for her support, income or accommodation - rather it is the reverse. The relationship is a very new one. The appellant himself has posed no risk of loss of employment or status or any other consideration which might make his return for the purpose of making proper application disproportionate. For these reasons, therefore, conjecturing a situation where his wife cannot return with him, I would still be obliged to conclude his removal would be proportionate in all the circumstances. As it is this discussion appears essentially academic as she is prepared to return with him and thus there would be no breach of family life at all (para.50)".

[5] The decision letter goes on to record the changes to the immigration rules and to consider these in detail. It is recorded that any private life established by the petitioner in the UK has been done in the knowledge that he had no legal right to remain here and that his immigration status was of the most precarious nature. Rule 276ADE is then set out. At paragraph 47 the decision letter records that the petitioner has been in the UK for a period of approximately 7 years and that his mother and two sisters remain in Pakistan and that he could be reunited with them on a return. Paragraph 48 expresses the view that the petitioner has failed to demonstrate that he has either lived in the UK for at least 20 years or has met any of the other criteria in the rule. He has family, friends and cultural ties still in Pakistan, having spent most of his life there and he stills speaks Punjabi to an extent that he requires some assistance from an interpreter in dealing with his immigration issues. Paragraphs 50 and 51 record that as the petitioner's wife has indefinite leave to remain in the UK his application has been determined in accordance with appendix FM of the immigration rules and that regard has been given to EX1.1.1 of appendix FM, paragraph (b) of which applies where 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. At paragraphs 54 and 55 the decision letter states that although the petitioner and his wife have submitted statements in which they both now state that the petitioner's wife could not return to Pakistan with him, the issue was fully considered by the immigration judge in the determination of 29 February 2012. It is further stated that the respondent having considered the submitted evidence together with that determination, it could not be said that there were insurmountable obstacles to family life with the petitioner's wife continuing outside the UK. For those reasons the decision was that the petitioner failed to fulfil EX.1.1(b) of appendix FM of the immigration rules. The decision letter makes clear that the petitioner's claim is refused under section D-LTRP 1.3 of appendix FM of the rules and that it was considered that his removal was proportionate in pursuit of a legitimate aim under article 8(2) ECHR and for all the reasons given there was no realistic prospect of an immigration judge coming to a different conclusion (paragraph 58 of no 6/1 of process).

The substance of the subsequent letter of 18 March 2013

[6] As indicated, the respondent issued this subsequent letter in the context of ongoing litigation about the correct approach under the new rules. The respondent records in the letter that the decision of 30 July 2012 was that the petitioner was unable to fulfil the requirements of the new rules and that there were no insurmountable obstacles to his wife returning to Pakistan with him. Further, there were no exceptional circumstances which would require a different outcome from the assessment under the immigration rules. Paragraph 50 of the immigration judge's decision is again quoted. The letter states that there is no evidence to suggest that any of the couple's circumstances had changed since then. There was no suggestion that the petitioner's wife could no longer support an application made by the petitioner for proper entry clearance either from the UK or in Pakistan. It is noted that at present 95% of settlement visas are dealt with in 12 weeks. Although there would be some disruption to the petitioner's wife's life in the UK temporarily, it was not accepted that any disruption outweighed the need to maintain effective immigration control given the petitioner's poor immigration history and the findings of the immigration judge. In any event, it is recorded that it is not considered unreasonable to expect the petitioner and his spouse to continue with their family life in Pakistan. Whilst it is noted that the petitioner's wife had apparently changed her mind about returning to Pakistan with her husband, that did not answer the question of insurmountable obstacles to her return or whether it would be unreasonable for her to do so.

[7] The further letter continues in the following terms:

"Mrs A's sons are adults and there is no evidence that family life exists between them and their mother. Similarly, there is no evidence of family life existing between Mrs A and her own mother and sisters. Whilst it is noted that she claims to see all of her family members fairly regularly, if she were to move to Pakistan no reason has been adduced why they could not continue to see each other through visits and maintain contact on Skype, email, telephone etc. Whilst contact would not be of the same quality as currently enjoyed it is noted that it is not unusual for families to maintain contact in this manner.

Again, whilst Mrs A considers that it would be hard for her to adapt to life in Pakistan, it is noted that this is the country of her birth and nationality, that she speaks Punjabi which is widely spoken there and that she appears not to have taken British citizenship. It is acknowledged that moving to Pakistan would be a major decision in her life, given that she has lived in the UK since she was 7 years of age and that her family would remain here, but notwithstanding this it is not considered that this would be an insurmountable obstacle or that it would be unreasonable to expect her to do this. It is not considered that she is so divorced from Pakistani culture such that it would be difficult for her to adapt to life in Pakistan. Moreover, article 8 of the ECHR does not allow a couple to choose their place of residence".

[8] The letter concludes that the outcome of the "second stage assessment" was no different from an assessment under the rules.

The petitioner's argument

[9] Senior counsel for the petitioner submitted that no regard should be had to the second letter which had been issued after the raising of the petition. Only the first letter need be reduced but if the second letter was also to be considered then it too should be reduced. In relation to the applicable law on the correct approach to immigration rule 353, reference was made to Dangol v Secretary of State for the Home Department 2011 SC 560 and R (AK Sir Lanka) v Secretary of State for the Home Department [2010] 1 WLR 855. The argument was that the respondent's approach to the petitioner's fresh claim was flawed. Mr Dewar confirmed that it is accepted by the petitioner that he does not fall within the new immigration rules in force from 9 July 2012 and that although the change to the rules came into force after the letter submitting the proposed fresh claim, it was accepted that the new rules applied to the application. It was submitted, however, that under the new rules the decision maker requires to undertake a two-stage process. First, a decision on whether a claimant falls within the rules requires to be made and secondly, even if that claimant does not fall within them, consideration must then be given as to whether there is, nonetheless, an article 8 basis that is favourable to the petitioner. Under reference to paragraph 55 of 6/1 of process it was contended that the issue of the petitioner's wife being unable to return to Pakistan had not been considered fully before as the immigration judge's reference to it had merely been hypothetical. So far as the reference to insurmountable obstacles was concerned, the ground of challenge was that the concept of insurmountable obstacles was no longer a determinative basis in such a case, although it was accepted it was still a factor. The main flaw of the decision letter was said to be that the respondent did not move to the second stage of a general article 8 consideration. While it was accepted that there was a reference in paragraph 58 of the 30 July 2012 letter to overriding article 8 considerations, that paragraph referred back to "aforementioned reasons" which were the immigration judge's decision and factors relevant to the rules. Accordingly no real second stage consideration had been carried out. If the March 2013 letter was not part of the respondent's decision then, applying the anxious scrutiny requirement, it could not be said that there was no realistic prospect of success of the fresh claim before an immigration judge.

[10] Mr Dewar accepted that the Inner House decision in MS v Secretary of State for the Home Department [2013] CSIH 52 suggested that it was for the applicant to show a "good arguable case" that his application should be dealt with outside the rules before extra considerations would be taken into account (see para.30). However, it was contended that there were additional factors in this case which had not been taken into account such as the petitioner's wife's settlement in this country with indefinite leave to remain and her attachment to her adult sons. In any event, it did not make sense to require the petitioner to go back to Pakistan only to make an application to return. With a wife in this country who is now a UK citizen he would have a good chance of succeeding and should be allowed to do so by remaining here.

[11] So far as the reliance put on "insurmountable obstacles" was concerned it was contended that the decision letter had elevated that concept to a status it did not deserve. Reference was made to Izuazu v Secretary of State for the Home Department [2013] UKUT 000045 where at paragraph 58 the Upper Tribunal confirmed that the requirement for exceptional circumstances or insurmountable obstacles has been authoritatively declared to be an erroneous one in an article 8 context.

[12] Reference was also made to the decision of Sales J in R Nagre v Secretary of State for the Home Department [2013] EWCH 720 (Admin). The issue in the petitioner's case was whether there had been consideration of insurmountable obstacles separately from the compliance with the rules stage. In Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420 the House of Lords had confirmed that policies involving people should not be allowed to result in rigid or inflexible rules. There was little point in requiring applicants to go back to their home country and claim entry to the UK from there. It was submitted that the length and degree of family disruption involved in going abroad for an entry clearance certificate will always be highly relevant. In the petitioner's case, there was no reason to think an immigration officer abroad would be able to deal with the matter expeditiously. There was no dispute the petitioner's marriage to his wife was genuine or that she had lived most of her life here and has family in the UK, albeit that there were no children of their marriage. The respondent had failed to consider whether an entry clearance officer would be in a better position to examine the petitioner's claim and why he should be required to return to Pakistan to apply for one. This illustrated an absence of anxious scrutiny.

[13] In relation to the subsequent letter of 18 March 2013 it was contended that this was in effect an answer to the petition and was retrospective justification produced very late. Only in very exceptional circumstances can a decision maker amend or revise reasons already given. While there was no absolute barrier to further reasons being provided, for example to clarify an obvious ambiguity, where the second letter sought to justify the original decision by approaching it from a totally different perspective, it should not be allowed. Had the respondent intended to concede that the original reasons were inadequate, the opposition to the petition should have been dropped and fresh consideration to the petitioner's claim given. Under reference to R v Westminster County Council ex parte Elmakov [1996] 2 All ER 302 it was submitted that only evidence to clarify or elucidate an existing decision might be allowed, not a fundamental alteration. Reference was also made to a decision of Lord Tyre in Absalom v Governor of HM Prison Kilmarnock [2010] CSOH 109 in this context.

[14] Senior counsel accepted that this case was different from other post facto reasons cases but it was significant that the second letter had not been issued until after the present proceedings were raised. In any event, the letter of 18 March 2013 did not carry out a "proper Chikwamba" analysis. The respondent should have asked whether it made any sense for the petitioner to go back to Pakistan to reapply for entry. In essence, the second letter was simply a repeat of the considerations made previously and it reached the same conclusion. In the petition of AS for judicial review
[2013] CSOH 82 Lord Tyre had refused to have regard to a subsequent letter written by the respondent in an immigration case which had been issued after the commencement of litigation. While that decision was in relation to a separate statutory duty to provide reasons as part of the notification of the decision, the important point was that a subsequent letter could not be used to insert reasoning into a pre‑litigation letter.

[15] Senior counsel summarised his arguments in relation to the substance of the second letter in six points. First, he submitted that the letter erred in referring to exceptional circumstances and insurmountable obstacles. Under reference to MF (Nigeria) v SSHD it was clear that a decision maker requires, if a stage 1 article 8 assessment fails, to stand back and moderate a general stage 2 assessment. In that context it was wrong to place too much emphasis on exceptional circumstances and insurmountable obstacles. Secondly, the letter of 18 March wrongly states that a 12 week period for entry clearance is not disproportionate. In Kotecha & Anor v SSHD [2011] EWHC 2070 at paragraphs 58 and 59 contrasting examples are given of what would be reasonable and unreasonable in terms of going back to apply for entry clearance. In a marginal case the period of time that would be spent away is a factor. The recognition by the immigration judge in this case that the petitioner's marriage is a genuine one, coupled with the fact that since these proceedings were raised NA has become a British citizen, renders it very likely that the petitioner would be allowed to return here. Thirdly, the respondent had failed to take into account that the position is Mrs NA has truly "rethought" what she is able to do. Heavy reliance is placed by the respondent on what the immigration judge concluded as if he had been appraised of the situation as it now is. The proportionality at stage 2 of the assessment cannot be met just by looking at what the immigration judge said. Fourthly, the second letter contained very odd references in relation to whether family life exists between Mrs NA and her sons and other relatives. Her family life in this country is dismissed or at least minimised by the respondent in a way that is inconsistent with article 8(2). The authorities supported that a holistic view must be taken of family life and that children could not be expected to continue to enjoy such a life through electronic communication - see Mansoor v SSHD [2011] EWHC 832 and Latif v SSHD [2012] UKUT 00078. Fifthly, a child's bond with his or her parents amounts to "family life" from birth - Ghising v SSHD [2012] UKUT 00160 at paragraphs 50 - 61. The question of whether a mother has family life with her adult children is a question of fact and will depend on the circumstances of each case. NA's sons live within 15 to 20 minutes drive of her home and she sees them often. One is still studying and she has a very close relationship with both. On the face of it the respondent was simply wrong if it was being suggested they would not fall within the category of family life. Sixthly, no consideration was given by the respondent of whether it would lead to a Kafkaesque situation were the petitioner to return to Pakistan and apply for entry clearance. Reference was made in this context to Hyat v SSHD [2011] UKUT 444 and [2012] EWCA Civ 1054. It was submitted that for all these reasons the respondent's decision was irrational and perverse. It could not be said that the petitioner did not have more than a fanciful prospect of success.

[16] In anticipating what might be said about the Inner House decision in MS v SSHD [2013] CSIH 52, senior counsel contended that even if it was considered that there was a tension between that decision and the Upper Tribunal decisions in England was still clear that if an applicant did not fall within the rules at the first stage, but something causes a decision maker to be concerned that all is not well in relation to the article 8 considerations then he or she required to look at the matter again. The two main factors that ought to have caused the respondent to be concerned after it was known that the petitioner did not fall within the new rules were first the position of Mrs NA and her longstanding connection with the UK and the need not to disrupt her family life here and secondly the unreasonableness of having to return to Pakistan only to make an application for entry to return.

The respondent's argument

[17] Counsel for the respondent's motion was to sustain his third and fourth pleas in law, which failing the fifth plea in law. He identified the two issues for discussion as being:

1. Is a consideration of article 8 factors distinct from the new immigration rules required?; and

2. If such a distinct consideration is required, do the two letters now issued by the respondent carry that out adequately?

[18] Counsel explained some of the background to the introduction of the new immigration rules and the perceived difficulty that arose when it was noted that the rules did not reflect some of the Strasbourg jurisprudence. Accordingly, it was recognised that the respondent's initial approach simply to apply the new rules could be flawed. As the Upper Tribunal in the case of MF (Nigeria) and Izuazu had confirmed that a two stage assessment was required then pending the Court of Appeal decision the respondent had decided to take pragmatic action by issuing supplementary letters. It was important that the decision in this case was not an immigration decision decided by statute it was simply a decision in terms of a rule, making it an executive act. On the Inner House authority of MS v SSHD, supra, what must be asked is whether there is a special feature of the case that is glaring relevant and that requires a conclusion that it would be disproportionate to require the petitioner to return to Pakistan. Mr Webster submitted that there are no such special features here. Even it was an error of the part of the respondent to be silent on the issue of "second stage " article 8 consideration, only if this was a material error could the decision be reduced. As there was nothing peculiar or special about the petitioner's case requiring a second look then it may be that the respondent's second letter could be ignored. However, the second letter, issued for reasons of pragmatism, may be informative on the issue and should be looked at. In no sense did it cancel or withdraw the first letter of July 2012. On the issue of the references to insurmountable obstacles, counsel pointed out that this expression was inevitably part of the decision because it was contained in rule EX.1(b). The rules include insurmountable obstacles as an exception that may allow someone in the petitioner position to qualify.

[19] Counsel for the respondent placed considerable reliance on the Inner House decision in MS v SSHD, supra. . The Inner House had considered in detail the decision of Sales J in R (Nagre) v SSHD. It had then decided that the onus is on a petitioner or claimant to say what the harsh consequences for him would be if he does not fall within the new rules (paragraph 28). Further, decision letters should go on and indicate that the respondent has addressed the full test. In this case, as the petitioner's general article 8 point would not succeed, it could not be a material error for the respondent not to have gone on to the second stage initially.

[20] As far as the legitimacy of looking at the second letter was concerned Mr Webster submitted that there was no absolute bar to supplementary reasons being considered and it all depended on the context - Chief Constable, Lothian and Borders Police v Lothian and Borders Police Board 2005 SLT 315. In a decision not made under statute there was more scope for being liberal in the approach to this. What the respondent had done in this case was to apply the new rules in the first letter of 30 July 2012 and confirm that the petitioner did not fall within any of the exceptions. In the second letter the respondent was simply indicating, that as a matter of law it appeared that it was now necessary, because immigration judges will require to consider article 8 factors outwith the rules, to address that second question. In the petition of AS for judicial review [2013] CSOH 82, Lord Tyre (at paragraph 11) expressed the view that what the respondent had done in that case was not to attempt to provide further reasons for the decision under challenge but rather to provide reasons for a hypothetical decision taken on a basis different from that on which the decision under challenge was in fact taking and which the respondent still considered to have been the correct basis. Counsel submitted that Lord Tyre had been wrong to regard such an approach as flawed. The hypothetical nature of the situation was that the respondent required to have a fall-back position if unsuccessful in the primary position that it was sufficient that the petitioner had failed to qualify under the new rules. In any event, Lord Tyre's decision in AS was rather different from the present case. It was a certification case where reasons have to be given at the time under statute. The second letter in this case was issued by the respondent without prejudice to what had gone before. It was important to note that the petitioner did not in fact challenge the basis on which the primary decision was reached, namely that he did not fall within the new rules For that reason alone regard could be had to the second letter.

[21] So far as the substance of the second letter was concerned, the first challenge made related to the reliance on the test of insurmountable obstacles. Mr Webster accepted that there had been a problem with this expression in the domestic case law and that a better approach was to look at whether it was reasonable to expect someone to return to a country. It was noteworthy that the respondent's letter referred to both of those concepts, thus the lower threshold had also been considered (page 3 of the second letter). In any event, the test in EX.1 of the new rules is ECHR compliant in so far as refers to insurmountable obstacles. Even if looking outside the rules insurmountable obstacles are still a relevant consideration when dealing with a relationship which started against the background of precarious immigration status. The case of Chikwamba relied on by the petitioner could be distinguished because the feature of precarious immigration status when the relationship started was not present in that case. Sales J's decision in the case of R (Nagre) v SSHD was an example of recent approval being given to that distinction. A real issue was whether there was a compelling case for the petitioner outside the new immigration rules. That could only be done with reference to Strasbourg authorities (all referred to in the Nagre case). Only in an exceptional case would a return be disproportionate in a case outside the rules. The petitioner's case was not exceptional. Returning to Chikwamba, counsel submitted that the House of Lords was not saying that return to apply from abroad is excluded as a possibility. That was recognised in the case of Kotecha & Anor v SSHD 2011 EWHC 2070. In any event, Chikwamba was an extreme case involving a proposed return to "harsh and unpalatable" Zimbabwe. The husband could not return with his wife because he was himself a successful asylum seeker. The case was about the Secretary of State's policy that in such cases there should be a return. It did not focus on the ECHR arguments being run in the present case. In any event, the case did not support the contention that a period of 12 weeks to apply for entry clearance was disproportionate, especially where all concerned were adults. In any event, in contrast with the Chikwamba case there were no children of the relevant marriage in this case, there was no logistical reason why Mrs NA could not travel with her husband to Pakistan, it is not suggested that a harsh and unpalatable state of affairs was waiting for them in Pakistan and there is no requirement for them to be separated. The immigration judge in this case gave a fairly useful narrative of the background of facts (at paragraph 50 of 6/3). It is implicit in the narrative of the respondent's second decision letter of 18 March 2013 that the decision maker is looking at the practical consequences of the petitioner and his wife being separated. All relevant factors were considered and it makes no difference that this was done on a hypothesis rather than on the now stated change of mind. In so far as the reference to lack of family life between Mrs NA and her sons and other family is concerned, it was submitted that the respondent goes on to give reasons for making the findings. This was not a case where Mrs NA was living literally "in family" with any of these people. There was nothing in the material provided to suggest that there was more than an emotional tie. The inadequacy of telephone contact referred to in the case of Mansoor v SSHD 2011 EWHC 832 related to families where there was interdependence between the parties and their minor children. It cannot be said that contact between adults could not be maintained by telephone and Skype.

[22] On the basis that it was legitimate to look at the letter of 18 March 2013, that decision could only be interfered with on Wednesbury grounds. However, overall the petitioner would still be unable to say that there was a good argument outside of the rules absent the second decision letter. The reasons for that were the absence of young children, the lack of any health issues, gender issues, educational issues, sexuality or religious issues, the lack of any physical impediment to either or both the petitioner and Mrs NA returning to Pakistan and the lack of nationality issues. It was clear that the couple had choices either to go together to Pakistan and remain there, to go together for the purposes of an application for entry clearance or for the petitioner to go to make such application with his wife remaining here for the relevant period. Further insofar as the ties that keep Mrs NA here are her adult family, she would not require to go to Pakistan for very long if she did not want to, she has no employment in this country that would be lost and neither does the petitioner and the period of application would likely be only 12 weeks. On the basis of all these facts there was nothing that could be said to amount to a possible good ground for granting leave outwith the immigration rules. There couldn't be said to be any unjustifiably harsh consequences for the petitioner. The petitioner's case depended on whether there was a relevant issue outside of the rules that required to be addressed. As there was nothing of substance that should have prompted a "second stage assessment" the petitioner's whole case was one of form not substance. Any perceived failure on the part of the respondent to add a sentence confirming that there were no separate article 8 considerations did not amount to a material error.

The Court of Appeal decision in MF (Nigeria) v SSHD

[23] As indicated, a further hearing was convened for counsel to make submissions on the Court of Appeal decision in MF (Nigeria) v SSHD [2013] EWCA Civ 1192. In essence, the Court of Appeal rejected the Secretary of State's appeal from the Upper Tribunal decision. The decision contains a detailed discussion about the new immigration rules. The Court of Appeal disagreed to some extent with the Upper Tribunal's view that the new rules did not form a complete code. The difference, however, was not a substantive one as the Court of Appeal decided that it was still necessary as part of a proportionality review to consider article 8 generally if a claimant did not fall within the new rules. In other words, the formulation of the issue as a one-stage or two-stage test was less important than the prominence that required to be given to proportionality as a subject requiring separate treatment.

[24] Senior counsel for the petitioner referred to paragraphs 41-46 of the Court of Appeal decision. The relevant passage on the application of a one-stage or two-stage test under the new rules is expressed in paragraph 46 in the following way:-

"There has been debate as to whether there is a one-stage or two-stage test. If the claimant succeeds on an application of the new rules at the first hurdle, i.e. he shows that para 399 or 399A applies, then it can be said that he has succeeded on a one-stage test. But if he does not, it is necessary to consider whether there are circumstances which are sufficiently compelling (and therefore exceptional) to outweigh the public interest in deportation. That is an exercise which is separate from a consideration of whether para 399 or 399A applies. It is the second part of a two-stage approach which, for the reasons we have given, is required by the new rules. The UT concluded (para 41) that it is required because the new rules do not fully reflect Strasbourg jurisprudence. But either way, it is necessary to carry out a two-stage process".

The decision goes on to discuss the expression "insurmountable obstacles". The court inclined to the view that a stringent approach that interpreted that expression as literally obstacles which were impossible to surmount would be contrary to article 8 for the reasons stated in detail by the Upper Tribunal in Izuazu v SSHD at paras 53 to 59.

[25] Senior counsel for the petitioner submitted that the facts in the MF (Nigeria) case were such that it was a finally balanced decision. Ultimately, the Upper Tribunal had been entitled to strike the balance in favour of MF. In the present case, however, it was submitted that there were two compelling factors relevant to article 8. The first was that Mrs NA has been resident here for 37 years, rendering it self-evident that a departure to Pakistan would present considerable difficulty for her. Secondly, on the authorities previously cited it was only in exceptional circumstances that someone should have to relocate simply to make an application to return that was likely to be successful. Further, it was submitted that, as matters now stood, such tension as might be perceived between the Inner House decision in MS v SSHD and the English approach was not a significant one. While the language used in paragraphs 26-30 of the Inner House decision was different to that of the Court of Appeal in MF (Nigeria) the approach was not fundamentally different. In essence, if an applicant has a good arguable case for leave outside the rules, a second stage should be applied. The difference remained that the Court of Appeal regarded a two-stage process as necessary whereas the Inner House would be looking first for the compelling circumstances but the practical result for the present petitioner would be the same because of the aforementioned compelling factors.

[26] Counsel for the respondent submitted that it should be noted that MF (Nigeria) was a deportation case where the exceptionality test is within the rules themselves. The situation being dealt with by the Inner House in MS v SSHD was one where the rules do not provide such a test and so it was dealt with by the Secretary of State's decision making. The binding authority of the Inner House confirms that a decision maker only moves to the second stage if, firstly, he or she is asked to do so by the applicant and secondly, there would be unjustifiably harsh consequences on a return. It was noteworthy that the Court of Appeal did not elucidate what the test for compelling reasons actually is. More guidance could be found in the Inner House of MS v SSHD where, at paragraph 28 it is expressed as follows:-

"It can be expected that the new rules will cover most cases where an applicant seeks to rely on his or her convention right to private and family life. If an official or tribunal or court is asked to consider leave outside the rules, an applicant must put forward a reason for doing so. Such a reason will usually consist of circumstances 'in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate' (in the words of paragraph 3.2.7d of the Home Secretary's guidance)".

In the absence of such demonstrably harsh consequences there could be no arguable case. The Inner House decision in MS v SSHD is binding authority and is an asylum case. The Court of Appeal decision in MF (Nigeria) is not directly binding and is any event a deportation case.

[27] So far as "insurmountable obstacles" are concerned the comments made by the Court of Appeal were obiter and the decision in Izuazu v SSHD remains the law. It was submitted that the position in this case remained that "nothing leapt off the page" of a compelling nature to show that a return to Pakistan in order to make an application from there would not be unjustifiably harsh.

Discussion and decision

[28] The chronology of events in this case is important because the petitioner made his application for his further submissions to be treated as a fresh claim before the new immigration rules came into force. It is not disputed that it was competent and appropriate for the respondent to apply the new rules in making the decision conveyed in the letter of 30 July 2012. However, for reasons I will explain, the timing is important because the petitioner could never have been expected to ask that, if he failed to come within an exception under the new rules, then he was requesting further consideration on article 8 grounds on the basis that there were other compelling circumstances justifying a decision against returning him to Pakistan. The chronology of events is further complicated by the respondent having issued a second letter in relation to general article 8 considerations, but not until after the present petition was raised. When that second letter was issued, on 18 March 2013, the respondent had decided to appeal the Upper Tribunal decision in MF (Nigeria) to the Court of Appeal. Meantime, on 28 March 2013 Sales J issued his decision in R (Nagre) v Home Secretary [2013] EWHC 720 (Admin). That decision was cited extensively with approval in the Inner House decision of MS v SSHD [2013] CSIH 52. The tension between that decision and the Upper Tribunal decisions in MF (Nigeria) v SSHD and Izuazu v SSHD has not been resolved by the Court of Appeal decision in MF (Nigeria) v SSHD. However, I tend to agree with senior counsel for the petitioner that there is no fundamental difference in approach. The Inner House decision, which is binding on me, suggests that it will be for an applicant to point to reasons why there remains an arguable case that there may be good grounds for granting leave to remain outside the rules by reference to article 8. The Court of Appeal has supported a more general requirement to consider general article 8 considerations as a second stage where leave to remain within the rules is not made out. In this particular case, as a result of the peculiar chronology, it cannot be said that the petitioner ought to have put forward a reason for being asked to remain if he did not fall within one of the exceptions to the new rules. So far as the petitioner was concerned, his application was made on the basis that there were grounds under article 8 ECHR not to remove him from this country and that he wished fresh material being lodged, taken together with previous material, to be treated as a fresh claim. Accordingly, although the respondent was entitled to apply the new rules to the petitioner's application, it was for the respondent, in my view, to take into account that this was not a case in which the petitioner could be expected to articulate matters in terms of a consideration of leave outside the rules.

[29] It seems to me that, rather than the two issues identified by counsel for the respondent, there are three matters I require to address. First, I must consider whether in this particular case there requires to be a consideration, distinct from the rules, of article 8 factors put forward by the petitioner. Secondly, if such a separate consideration is required I must address whether it is proper to take the respondent's second letter of 18 March 2013 into consideration. Thirdly, if it is proper and appropriate to take that second letter into account, I must decide whether the two decision letters taken together fulfil that requirement adequately or whether a material error can be identified. So far as the first matter to be addressed is concerned, there is no doubt that the decision in MS v SSHD supra, is binding authority for the general approach to be taken in applications made under the rules. For the reasons already explained, this is not a situation in which the petitioner could have been expected to have identified a reason for leave being considered outside the rules. Accordingly, the approach that the respondent ought to have taken in this case can be summarised as follows:-

"The decision maker should examine the circumstances put forward by the applicant and determine whether they disclose a good arguable case that the rules would produce an unfair or disproportionate result such that the applicant's article 8 rights would be infringed. It is only if that test is satisfied that there is any need to go on to consider the application of article 8 in detail. Furthermore, as Sales J indicates, those writing decision letters should demonstrate that they have indeed addressed this test". ( MS v SSHD, para 29)

There is no real dispute in this case that the respondent did not approach the matter that way in the first decision letter. All that was done was to consider, on the basis of the material produced, whether or not the petitioner fell within the rules and the listed exceptions contained therein. What was required, was a proper consideration of whether the application of the rules would produce an unfair or disproportionate result in article 8 terms. There was no such proper consideration and on that basis, on the current state of the law, it seems to me that the approach taken by the respondent in the first decision letter was wrong. The respondent's mind was closed to the possibility that the rules might produce an unfair or disproportionate result. No "good arguable case" analysis was carried out; the rules were applied mechanically. The error to examine properly the general question of whether an applicant's article 8 rights would be disproportionately infringed is in my view a fundamental one where the whole basis for his seeking leave to remain is on that ground, ie where the application was expressed as a general article 8 claim. By issuing the second letter the respondent implicitly recognised that the approach might have been flawed, but was not prepared to make any such concession. Accordingly, I turn to the issue of whether it was legitimate for the respondent to attempt to resolve the matter, after the commencement of these proceedings, by the issue of a second letter.

[30] It was common ground before me that there was no absolute bar to a decision maker elaborating on a decision by giving supplementary reasons. The context is important but what matters is that a reasoned decision cannot be fundamentally altered by subsequent reasons - R v Westminster County Council ex parte Ermakov [1996] 2 All ER 302 and Chief Constable, Lothian and Borders Police v Lothian and Borders Police Board 2005 SLT 315 at para 70. The question of whether the respondent was entitled to issue second letters in similar (although not identical) circumstances to the present case was considered by Lord Tyre in the petition of AS for Judicial Review [2013] CSOH 82 to which both parties referred in argument. Counsel for the respondent suggested that Lord Tyre's decision was wrong and that I should take a different approach. While that case concerned certification of a human rights claim under section 94(2) of the Nationality, Immigration and Asylum Act 2002 as clearly unfounded, the issue in relation to the second letter was the same in that the respondent had issued a second letter on the issue of general article 8 considerations because of the Upper Tribunal decision in MF (Nigeria) v SSHD. As in the present case the letter was written on conditional or esto basis, i.e. in the event that the petitioner's article 8 claim fell to be determined outside the rules. In upholding a submission that the second letter could not insert fresh reasoning into the first letter, Lord Tyre expressed the view that the respondent was "not attempting to provide further reasons for the decision under challenge, but rather to provide reasons for a hypothetical decision taken on a basis different from that on which the decision under challenge was in fact taken and which the respondent still considers to have been the correct basis". The situation in the present case is the same. The respondent issued a letter on 30 July 2012 on the basis that no consideration of leave to remain outside the rules was required. The second letter of March 2013 was produced on the hypothesis that the first letter was wrong not to go on to consider general article 8 factors as these might render it disproportionate to remove the petitioner notwithstanding the decision that he did not fall within any of the new rules exceptions. Accordingly, as this petition proceeds on the basis that the original decision of 30 July 2012 was wrong in law and the respondent makes no concession either in the second letter or in answer to this petition that it was so wrong, then the second letter cannot be regarded as an elucidation or elaboration of the original decision. In short, the second letter only becomes necessary if the decision notified in the first letter is wrong in law. In no sense can the second letter be explaining what in fact in the mind of the decision maker in July 2012 because it is accepted that it was sent after the proceedings challenging that reasoning were made. For these reasons, I am in complete agreement with senior counsel for the petitioner that the proper approach for the respondent to have taken in this case would have been to concede that given the chronology and circumstances of the case and the developments in the law, the letter of July 2012 was inadequate and to concede the petition. The matter could then have been looked at afresh. The issuing of the letter post the commencement of litigation is, in my view, a significant factor. I consider that the approach taken by Lord Tyre in the petition of AS for Judicial Review was correct and I respectfully agree with it.

[31] For the reasons explained, namely that the respondent erred in law by failing to give proper consideration to the question of whether it was reasonable to expect the petitioner to return to Pakistan and continue family life abroad once it became apparent that he did not fall within the rules, coupled with my decision that it would be wrong to rely on the second letter, the respondent's decision falls to be reduced.

[32] However, I turn now to consider the substantive arguments in relation to the second letter lest I be in error not to have regard to it. A number of arguments were presented in relation to this but it seems to me that there are two clear difficulties with the second letter. The first is the continued reliance on the opinion of the immigration judge on the issue of the petitioner's wife returning to Pakistan, notwithstanding that the evidence he was dealing with was very different from that now presented to the respondent The second letter, rather than taking the clear change of heart on the part of the petitioner's wife into account, appears to treat the matter as if it had already been considered by the immigration judge because of his reference to conjecturing that she might change her mind. More importantly, at page 3 of the second letter, in the only passage in which the petitioner's wife's reasons for not wanting to return to Pakistan are considered, the following statements appear:-

"Mrs A's sons are adults and there is no evidence that family life exists between them and their mother. Similarly, there is no evidence of family life existing between Mrs A and her own mother and sisters. Whilst it is noted that she claims to see all of her family members fairly regularly, if she were to move to Pakistan no reason has been adduced why they could not continue to see each other through visits and maintain contact on Skype, email, telephone etc. Whilst contact would not be of the same quality as currently enjoyed, it is noted that it is not unusual for families to maintain contact in this matter".

It was contended for the respondent that the reference to the lack of family life existing in that passage there must be a reference to Mrs A not living in the same household as her sons or her mother and sisters rather than to an absence of family life at all. However, taking the passage as a whole, it seems to me to amount to a suggestion that regular physical contact with close family members does not amount to family life. The first two sentences of the passage refer to the absence of family life in relation to both the sons and Mrs A's mother and sisters. As senior counsel for the petitioner pointed out under reference to Latif v SSHD 2012 [UKUT 00078] and Ghising [2012] UKUT 001610, a holistic view must be taken of the expression "family life" and the question of whether a mother has family life with her adult children is one of facts depending on the circumstances of each case. The available information in relation to Mrs A's sons is that they live in the same area of Scotland as she does and she sees them very regularly. The information is that there was a very close relationship which, coupled with Mrs A's upbringing in the UK by her mother and with her sisters who all live here and have done for 37 years, on the face of it family life exists between all these family members and Mrs A. Existence of that family life is central to the question of whether there is a good arguable case for leave to remain outside the rules. I consider that the second letter falls into error in this regard. While the question of whether this case would lead to a Kafkaesque situation were the petitioner required to return to Pakistan to apply for entry clearance was not as strong an argument in my view, balanced as it must be against the legitimate need to maintain immigration control, I do agree that this has been given scant consideration in the second letter. The issue of the unreasonableness of having to return to Pakistan only to make an application for entry to return is mentioned only in passing. In essence, I do not consider that the second letter represents a proper fresh consideration of circumstances that might require a different outcome from the assessment made under the immigration rules. The references back to the immigration judge's decision and the lack of explanation as to why Mrs A's close family life and longstanding connections in the UK would not render it unduly disruptive and harsh for her to continue family life with her husband in Pakistan or if he is in Pakistan are all suggestive of a lack of anxious scrutiny.

[33] In all the circumstances, I consider that the respondent erred in deciding that the petitioner would not have a realistic prospect of success before an immigration judge on the basis of the material lodged in support of the fresh claim, taken together with the previous material. For all of the reasons stated I have decided that the respondent's decision of 30 July 2012 falls to be reduced. For completeness and lest it be necessary I will also reduce the letter of 18 March 2013. I will meantime reserve all questions of expenses.