Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 139

 

P1312/13

OPINION OF LORD DOHERTY

In the Petition of

SMB

Petitioner;

for

Judicial Review of a decision of the Secretary of State

for the Home Department dated 2 July 2013

 

Pursuer:  Winter;  Drummond Miller LLP

Defender:  Duthie;  Office of the Advocate General

 

11 September 2014

Introduction

[1]        The petitioner was born in Pakistan in 1965.  On 14 August 2000 he entered the UK with his son (born in 1992).  His son had a visa to obtain medical treatment and the petitioner had a visa to accompany him for that purpose.  On arrival he was interviewed by immigration officers as to the purpose of his visit.  On 21 August 2000 he claimed asylum.  On 11 October 2000 his asylum claim was refused.  On 18 February 2001 he was served with an IS82 advising of his liability to removal.  On 28 February 2001 he appealed against the refusal of his asylum claim.  The appeal was dismissed on 15 February 2002.  He became appeal rights exhausted on 3 April 2002.  On 24 June 2002 he submitted a human rights claim (articles 3 and 8 ECHR).  The claim was refused on 12 August 2002.  On 22 March 2004 he applied for indefinite leave to remain (“ILR”) under the Family ILR exercise.  He married a UK national in June 2004.  (In July 2005 they had a child.  The child was immediately taken into care.  The petitioner and his wife have no contact with him).  On 25 February 2005 the petitioner submitted a further human rights application (article 8).  That application was refused on 6 April 2006.  At that time he was served with an IS151A advising of his liability to removal.  His appeal against the refusal of 6 April 2006 was dismissed on 1 June 2006.  He became appeal rights exhausted on 9 June 2006.  On 25 August 2006 his application under the Family ILR exercise was refused.  On 29 October 2007 he submitted a further human rights (article 8) application.  On 27 October 2008 that application was refused.  An appeal against that decision was dismissed on 5 February 2009.  Applications for leave to appeal further were refused on 26 February 2009 and 12 May 2009.  He became appeal rights exhausted on 19 May 2009.  On 14 October 2009 he submitted another human rights (article 8) application.  That application was refused on 12 October 2010.  On 22 October 2010 permission to apply for judicial review of the decision of 12 October 2010 was refused.  On 8 April 2011 and 18 August 2011 he submitted FLR (O) applications without the appropriate fee.  Both were rejected. On 7 July 2012 he submitted an FLR (M) application.  By notice dated 27 March 2013 that application was refused.

 

The new Immigration Rules

[2]        Appendix FM to the new Immigration Rules (HC 395 as amended by HC 1112) contains provisions relevant to those seeking to enter or remain in the UK on the basis of their family life with a person who is a British citizen or is settled in the UK:  paragraph GEN 1.1.  The Appendix is directed at the rights that are protected by article 8 of ECHR.  Paragraph E-LTRP 2.2 provides:

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

 

Paragraph EX.1 provides:

“This paragraph applies if

….

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

 

[3]        The Secretary of State for the Home Department (“the respondent”) has power to grant leave to enter or remain in the United Kingdom outside the Immigration Rules.  In MS v Secretary of State for the Home Department [2013] CSIH 52 an Extra Division observed:

“7. … This is of the nature of a residual discretion to deal with deserving cases.  The Home Secretary has issued instructions to officials as to the approach to be applied in deciding whether to grant leave outside the rules.  Paragraph 3.2.7d of these instructions in its current form is in the following terms:

 

‘Exceptional circumstances

 

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

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

 

‘clear and appropriate guidance to relevant officials that if they come across a case falling outside the new rules, they nonetheless have to consider whether it is a case where, on the particular facts, there would be a breach of Article 8 rights if the application for leave to remain were refused’:  R (Nagre) v Home Secretary, [2013] EWHC 720 (Admin), at paragraph 14 per Sales J.”

 

The court went on to consider the practical application of the rules at paragraphs 23‑29.  It endorsed the observations and approach of Sales J at paragraphs 27-30, 36 and 49 of Nagre.  It concluded:

“Conclusion

 

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

 

 

The decision of 27 March 2013

[4]        The petitioner’s application for leave to remain was dealt with under the new Immigration Rules.  Consideration was given within the rules to the petitioner’s article 8 claim.  The application was refused.

 

The letter of 11 June 2013

[5]        The petitioner’s solicitors wrote to UKBA by letter dated 11 June 2013 in the following terms:

“We are challenging the decision dated 27^th March 2013 of the UKBA refusing our client leave to remain as the spouse of a UK national for the following reasons.

 

The decision maker must still go through a two stage process of not only examining the application under the new Immigration Rules but also assess the general proportionality of the decision (see MF (Article 8-new rules) Nigeria [2012] UKUT 00393 (IAC)).  The decision maker has erred by failing to consider the general proportionality of the decision.

 

Further as stated in MF, supra, insurmountable obstacles is to be regarded as an incorrect criterion.  The decision maker has erred by having reference to this test when assessing whether the client’s spouse could relocate to Pakistan.

 

It also seems that the decision maker has not recognised the client’s wife as a British and EU national cannot be expected to relocate outside the European Union where she would lose the benefits of EU citizenship (see Dereci and others v Bundesministerium fur Inneres [2012] 1 CMLR 45).  In my view even if insurmountable obstacles is the correct legal criterion, then that criterion is not met under the ration of Dereci, supra.

 

As noted we are seeking the reduction of the UKBA’s decision refusing our client further leave to remain.  We would be obliged if you would let us know whether you would be willing to reconsider the case without the need for raising a judicial review.”

 

 

The second decision letter

[6]        By letter dated 2 July 2013 the respondent wrote to the petitioner’s solicitors.  She treated the letter of 11 June 2013 as a fresh application under article 8.  The letter stated:

“The crux of your pre action letter states that your client’s Article 8 claim has not been considered properly and that the circumstance of your client’s wife have not been taken into account, in particular her rights as a UK/European citizen.

 

Careful consideration has been given to your letter dated 11 June 2013 but it has been decided that the submissions contained therein do not justify a grant of asylum, humanitarian protection or any other form of leave to remain in the UK ...

 

Since your client’s FLR (M) application has not resulted in a grant of leave, consideration has been given to paragraph 353 of the Immigration Rules …”

 

The letter recited the terms of paragraph 353 and made reference to relevant passages from authorities relating to it (WM (DRC) and AR (Afghanistan) v Secretary of State for the Home Department [2006] EWCA Civ 1495 per Buxton LJ at paragraphs 11 and 24;  R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116 at paragraphs 15 and 16; and R (AK (Sri Lanka)) v Secretary of State for the Home Department [2009] EWCA Civ 447).  It continued:

“Limited new evidence has been provided by your client that has not already been considered before in applications dated 25 May 2005, 29 October 2007, 14 October 2009 and 7 July 2012.  All of these applications were based on your client’s family/private life under Article 8.  However, after careful consideration, the Secretary of State finds that your client’s circumstances would not give rise to a realistic prospect of success before a different Immigration Judge.

 

Your client submitted an application for further leave to remain as the spouse of a person present and settled in the UK.  This application was refused under Paragraph 284 and as your client had no leave to remain in the UK, there is no right of appeal against this decision.  No issue is taken with this in your letter of 11 June 2013.

 

Changes to the Immigration Rules which govern the way in which the UK Border Agency now deals with applications under Article 8 of the ECHR came into force on 09 July 2012.  Your client’s application to remain in the UK has therefore been determined under Appendix FM and paragraph 276 ADE of the Immigration Rules.

 

Your client’s case was considered under Appendix FM.  Your client cannot meet the rules as outlined in the decision letter of 27 March 2013 which you seek to challenge.

 

The family life your client established in the UK has been done in the knowledge that he had no legal right to remain in the UK and was done in the full knowledge that this immigration status was of the most precarious nature.  Article 8 provides that it can be lawful to interfere with the exercise of the right to respect for family and/or private life where it is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

 

In your letter of 11 June 2013 you aver, firstly, that a decision maker must still go through a two stage process of considering the claim under the Immigration Rules and then by assessing the general proportionality of the decision.  You quote MF (Nigeria) [2012] UKUT 00393 (IAC) as authority for this proposition.  You do not however refer to the decision from the Inner House of the Court of Session in MS v SSHD [2013] CSIH 52.  As you know this case is binding in Scotland and should be followed as opposed to MF (Nigeria).

 

You do raise in your letter that you consider that the test of insurmountable obstacles is an incorrect criteria.  In support of this you refer to MF (Nigeria).  Unfortunately, your letter which aside from not referring to MS v SSHD, makes no mention of Nagre, R (on the application of) v SSHD [2013] EWHC 720 (Admin) which was broadly confirmed as correct by the Inner House.”

 

The letter then set out paragraphs 42‑48 of Nagre and paragraph 28 of MS, and carried on:

“As should be clear given your client’s immigration history, the relationship was formed with his wife when his status was extremely precarious.  You have put forward no evidence or argument that your client has a good arguable case that would require that leave to remain should be granted outside the Immigration Rules where EX.1(b) is not met.

 

Immigration Judge Corke noted as follows in his refusal of your client’s appeal on 5 February 2009.

 

‘The appellant’s wife is not of Pakistani origin but she is a Muslim and there is no evidence to suggest that she could not live in Pakistan…’

 

As quoted above, Immigration Judges have found that there are no insurmountable obstacles to your client and wife living in Pakistan.  In those circumstances it is not accepted that insurmountable obstacles is the wrong criteria, that your client has shown that such obstacles exist, or that he has a good arguable case that Article 8 requires that leave to remain should be granted outside the rules.  It is considered that there is no realistic prospect of an Immigration Judge coming to a different conclusion.

 

You have raised in your letter of 11 June 2013 a ‘Dereci’ issue regarding your client’s partner’s British Citizenship and EU national status.

 

‘Dereci’ did not extend the rights of a family member of an EU citizen, who has never exercised their free movement rights, to put that family member on a par with the family member of an EU national who is exercising free movement rights.  A person’s status as an EU citizen allows them to be joined by their family members who do not benefit from EU law rights only in accordance with the domestic law of their member state and having proper regard to their rights under Article 8.  It is considered there is no realistic prospect of an immigration judge coming to a different conclusion …

 

For the avoidance of doubt the Secretary of State accepts that the test set out in Razgar are the correct steps to follow when assessing whether an immigration decision interferes unjustifiably with family or private life.  In your client’s case it is proportionate to the legitimate aim of immigration control, to seek to remove your client from the UK.  This is step 5 of Razgar.

 

It is of some significance that when refusing your client’s application for permission to apply for Judicial Review on 22 October 2010, the honourable Mr Justice Holman commented as follows: 

 

‘There is nothing new which was not judicially considered as recently as last year.  Of course another year has passed, but the claimant and his wife have known for many years that he has no right to remain.  This is a last ditch attempt to prevent removal.

 

Case is considered to be totally without merit.’

 

To take this approach a stage further, it is clearly laid out in Strasbourg jurisprudence that where family or private life is established while a person does not have lawful status , it is to be given less weight than family or private life established while a person has lawful status.  (See for example Konstatinov).

 

Your client’s case has been fully reviewed and considered in line with paragraph 353B of the Immigration Rules.

 

Your client has a poor immigration history.  He has remained in the UK without leave.  He has prolonged his stay in the UK by lodging application after application which have all been refused or rejected or dismissed at appeal. Each application has been on the same or similar facts with limited new evidence provided to show how refusal of each application ‘would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate.’  On no view could it be said therefore that your client’s removal is disproportionate.

 

Given the reasons above, your client’s application for leave to remain in the UK is refused and the decision of 27 March 2013 refusing your client leave under Article 8 stands.  Your claim that to return your client to Pakistan would breach his human rights is refused and is hereby recorded as being determined on 27 March 2013.  

 

Careful consideration has been given as to whether your client should qualify for Discretionary Leave in the United Kingdom but you have not raised any issues which would give rise to such a grant.”

 

 

The petition

[7]        The petition seeks reduction of the decisions of 27 March 2013 and 2 July 2013.  In paragraph 9 the petitioner avers that the respondent erred in making the decision of 27 March 2013 because she only assessed the application for leave to remain under the Immigration Rules, whereas she ought also to have assessed it outside the rules.  The petitioner avers “There is a good arguable case that leave should have been granted outside the Immigration Rules”;  that at such a second stage assessment “factors such as the petitioner’s spouse’s nationality and length of residence would have been taken account of”;  and that ”In light of those factors there is thus a good arguable case for the petitioner’s application to have merited a second stage consideration.”  In paragraph 10 the petitioner avers that the respondent misdirected herself in law: 

“Namely when considering whether there is a good arguable case, insurmountable obstacles is the wrong test.  It is simply a factor which has to be considered along with other factors such as the petitioner’s spouse’s nationality and length of residence in the UK.  The fact that the petitioner’s spouse is also an EU national adds weight to the fact that it would be unreasonable for her to relocate to Pakistan.  Had the decision maker applied the law in the correct manner, he (sic) would not have reached the decision that there was not more than a fanciful prospect of success before another Immigration Judge in light of the up to date case law…There are unjustifiably harsh circumstances for the petitioner’s spouse in having to relocate to a country where she has no ties, no family, and where she is expected to leave the UK where she has lived all her life…”

 

 

First Hearing

[8]        The matter came before me for a First Hearing.  The petitioner’s Statement of Issues lodged in advance of the hearing stated:

“The central issue raised in this case is whether the respondent erred in law in failing to assess whether the application ought to have been granted outside of the Immigration Rules in the first refusal letter and whether there was an error of law in the second letter in rejecting the petitioner’s claim under Immigration Rule 353.”

 

 

Submissions for the petitioner

[9]        Mr Winter did not seek to impugn the decision of 27 March 2013 in so far as it had been taken within the Immigration Rules.  His position was that this was a case where the respondent had also required to consider the article 8 case outside the rules.  She had not done that on 27 March 2013, and that had been an error of law on her part.  However, he did not seek reduction of that decision.  Matters had moved on.

[10]      Mr Winter accepted that the decision of 2 July 2013 had considered the question of leave being granted outside the rules on article 8 grounds.  He maintained that the respondent had misdirected herself at that stage.  She had treated the issue of whether there were insurmountable obstacles to the petitioner’s spouse relocating to Pakistan with him as being the relevant test.  The correct approach was to treat the absence of such insurmountable obstacles as simply one of several factors which ought to be considered in assessing the proportionality of the petitioner’s removal.  That had not been done.  There had been no proper consideration of other relevant factors such as the spouse’s UK nationality and EU citizenship, the fact she had lived all her life in the UK, and her lack of connections with Pakistan.  Having regard to all the relevant factors here the proper conclusion ought to have been that the petitioner did have a good arguable case that removal would be disproportionate on article 8 grounds, and that there would be a realistic prospect of success before another immigration judge.  The principal authorities referred to were:  MF (Nigeria), supra; Secretary of State for the Home Department v Izuazu (Article 8-New Rules)[2013] UKUT 00045 (IAC); R (Nagre) v Secretary of State for the Home Department, supra; MS v Secretary of State for the Home Department, supra; Khan [2013] CSOH 176; AAA [2014] CSOH 81; VW (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 5; MA (Pakistan) v Secretary of State for the Home Department, [2010] Imm AR 196; Kotecha v Secretary of State for the Home Department [2011] EWHC 2070 (Admin).  In the decision of 2 July 2013 the respondent had fallen into precisely the same error as she had in Khan.  The second decision should be reduced.

 

Submissions for the respondent

[11]      Mr Duthie submitted that on a fair reading of the decision of 2 July 2013 the respondent had not applied the wrong test.  The absence of insurmountable obstacles to his spouse relocating to Pakistan was not the test, but it was a relevant factor when considering the proportionality of the petitioner’s removal.  That the respondent had been well aware of the correct test was plain from the extensive citation from MF and Nagre in the decision letter.  That was the context in which the remainder of the letter ought to be understood.  Read as a whole it was clear that the respondent had not approached the issue of proportionality, and whether there was a good arguable case for leave to be granted outside the rules, on the basis that the only relevant factor was the absence of insurmountable obstacles.  Her consideration had been much broader than that.  In relation to the absence of insurmountable obstacles it should be borne in mind that the rationality of the respondent’s conclusion on that issue was not challenged; nor indeed did the petitioner submit that there were insurmountable obstacles.  The respondent had not erred in law.  Her conclusions that there was no good arguable case for granting leave outside the rules, and that the petitioner had no realistic prospect of success before another immigration judge, were unimpeachable.  The decision was lawful.

 

Decision

[12]      The critical question in this case is whether the respondent treated the absence of insurmountable obstacles to family life continuing outside the UK as being determinative of the proportionality issue.  In my opinion, on a fair reading of the decision of 2 July 2013 she did not.  I am in very substantial agreement with Mr Duthie’s submissions.

[13]      It was common ground at the first hearing that the absence of insurmountable obstacles is a relevant factor to be taken into account: but that has not always been the petitioner’s position.  In the letter of 11 June 2013 his agents had contended: 

“insurmountable obstacles is to be regarded as an incorrect criterion.  The decision maker has erred by having reference to this test when assessing whether the client’s spouse could relocate to Pakistan.”  (Emphasis added).

 

That, it seems to me, is part of the context which led to the response in the decision of 2 July 2013 being framed in the way it was.  Thus, on page 4 the respondent noted:  

“You do raise in your letter that you consider that the test of insurmountable obstacles is an incorrect criteria.  In support of this you refer to MF (Nigeria).  Unfortunately, your letter which aside from not referring to MS v SSHD, makes no reference to the case of Nagre…which was broadly confirmed as correct by the Inner House.”  (Emphasis added.)

 

[14]      The respondent then went on to set out paragraphs 42-48 of Nagre (which included Sales J’s consideration of the observations of Sedley LJ at paragraphs 17-24 of VW (Uganda)).  The passage reproduced by the respondent contained the following consideration by Sales J of Sedley LJ’s observations:  

“47.  … As appears from that judgment, Sedley LJ was concerned only to make clear that an ‘insurmountable obstacles’ or an ‘insuperable obstacle’ test was not the test to be applied under Article 8 in this sort of case, but that a wider assessment taking into account other potentially relevant factors could be required.  This is consistent with what is to be derived from the Strasbourg cases.  As I have sought to set out above, insurmountable obstacles to relocation is not the sole and definitive test for disproportionality in precarious family life cases.”

 

[15]      The high point of Mr Winter’s argument was the passage at the top of page 7 of the decision letter:  

“…Immigration Judges have found there are no insurmountable obstacles to your client and his wife living in Pakistan.  In those circumstances it is not accepted that insurmountable obstacles is the wrong criteria, that your client has shown that such obstacles exist, or that he has a good arguable case that Article 8 requires that leave should be granted outside the rules.  It is considered that there is no realistic prospect of an Immigration Judge coming to a different conclusion.”  (Emphasis added.)

 

Mr Winter maintained that the use of the definite article before the words “wrong criteria” demonstrated that the respondent had taken the wrong approach.

[16]      I agree that it would have been more appropriate for the indefinite article to have been used in the passage highlighted.  However, reading the decision letter as a whole, and in context, I am satisfied that the respondent did not treat absence of insurmountable obstacles to relocation as the sole and definitive test of proportionality.  She took pains to identify the correct approach from the relevant authorities, and I am content that she went on to apply it.

[17]      The position in the present case appears to me to be readily distinguishable from that in Khan.  There, as here, the petitioner relied upon the fact that he was in a genuine and subsisting relationship with his wife who was a British citizen and settled in the UK.  The (second) refusal letter had been issued after the new Immigration Rules had come into force.  The relevant parts of the letter were set out by Lord Glennie at paragraph 22.  The critical passage was:

“The family life that you have raised … is that of your spouse.  There are no insurmountable obstacles to you and your spouse continuing your family life together in Pakistan.  Your spouse has always known of your immigration status therefore they have been fully aware that they may not be allowed to continue their family life with you in the United Kingdom.  This decision does not alter that expectation.  In addition you can support your wife in her adjustment to life [in] Pakistan.  While it is noted that your wife will have to cease employment in the United Kingdom there is nothing to prevent them [from] seeking work in Pakistan should they so wish.  As family life can continue in Pakistan you cannot meet the requirements of Appendix FM.”

 

[18]      It was not in dispute (paragraph 21) that the basis of the decision was one which was justified in accordance with the Immigration Rules.  The issue was whether there had been error in respect of the approach to consideration of the article 8 claim outside the rules.  Lord Glennie held that there had been: 

“29.  In my opinion, in the second refusal letter sent on her behalf, the Secretary of State has clearly fallen into error in rejecting the petitioner's application on the basis that there are no ‘insurmountable obstacles’ to him and his spouse continuing their family life together in Pakistan.  The relevant paragraph of the refusal letter, which I have quoted in paragraph [22] above, make (sic) it clear that the writer of the letter is not simply using the words ‘insurmountable obstacles’ as a loose shorthand for something to be taken into account but is applying that as a substantive test.  That is clear from the fact that the letter does not go on to assess issues of proportionality.  The ‘insurmountable obstacles’ test is treated as a minimum requirement, not as one of the factors to be taken into account in assessing proportionality.  It is true that there is a reference also to the fact that the petitioner and his spouse have always known that his immigration status was precarious, a factor which might well be relevant in a proportionality assessment, but that is not followed by any attempt to make the assessment.”

 

[19]      I confess to some difficulty in reading the passage in the decision letter in that way.  The more natural reading, it seems to me, is that in so far as there was reference to the absence of insurmountable obstacles to relocation being a requirement, it was in the context of consideration (of the relevant exception – EX.1 (b)) under the rules.  Be that as it may, I am satisfied that in the present case there has been no misdirection on the respondent’s part.  She was entitled to, and did, have regard to the absence of insurmountable obstacles to relocation as a relevant consideration.  She did not treat it as the sole and definitive test.  Whereas in Khan Lord Glennie was fortified in his reading of the decision letter by the fact that it did not, in his view, go on to assess issues of proportionality, here the respondent considered the material placed before her bearing on proportionality and concluded that there was no good arguable case for granting leave to remain outside the rules.  As she records on page 3 of the letter of 2 July 2013, she was well aware of the factors relied upon by the petitioner anent family life in the letter of 11 June 2013 and in the earlier applications:  but she also had regard to his poor immigration history and to the fact that he had prolonged his stay by lodging repeated and ill‑founded applications; to the fact that the relationship was formed when his status was extremely precarious; and to the legitimate aim of immigration control.

[20]      It follows that the petitioner’s challenge fails.  The decision was lawful.  I shall sustain the respondent’s first plea-in-law, repel the petitioner’s plea-in-law, and dismiss the petition.  I shall reserve meantime all questions of expenses.