Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 172

P142/15

OPINION OF LADY STACEY

In the petition of

BAKHSHISH SINGH

Petitioner;

for

Judicial Review of a decision of the Secretary of State for the Home Department

Petitioner:  Mr Caskie;  Drummond Miller LLP

Respondent:  Mr McIlvride, QC;  OAG

16 December 2015

[1]        The petitioner is a citizen of India who came to the United Kingdom in 2006.  He remained without leave, applying for leave to remain on 4 July 2014.  That application was refused by the respondent by a decision letter dated 6 September 2014.  The petitioner seeks reduction of that decision. 

[2]        The basis of the application by the petitioner is that he is married to a British citizen.  He began the relationship with the woman who is now his wife, Mrs Singh, in 2007, began living with her in 2009, and was married on 8 July 2011.  The circumstances of Mrs Singh are noted in some detail below. 

[3]        In his application form, the petitioner gave details of his wife’s medical condition, by enclosing reports from her psychiatrist, Dr Paul Forrester.  The first report was written in 2013 to support an appeal against a decision to refuse the petitioner a residence card.  The psychiatrist stated he had interviewed Mrs Singh, and had read two volumes of her medical notes.  He reports that she has several siblings and one son in the UK.  She has very little contact with any of these relatives, because they did not approve of her marrying the petitioner.  She has a brother in law in Southampton whom she believes to be waging a personal vendetta against her.  She told the doctor that seven years previously she had been attacked and raped.  She believed her brother in law to be involved in orchestrating the attack.  She continues to worry that she will be attacked again.  For that reason many of her family members have no contact details for her. 

[4]        Dr Forrester reported that she had been diagnosed with schizoaffective disorder, depressive type.  Over a number of years she had numerous episodes of depression, during which she suffered from low mood, poor concentration, lack of motivation and suicidal ideation.  She is prescribed anti- depressant and mood stabiliser medication.  Mrs Singh also suffers from gout and from Crohn’s disease for which she is prescribed medication. 

[5]        Under the heading “current mental state” Dr Forrester reported that Mrs Singh was frequently tearful and was worried about her husband’s appeal hearing.  He usually worked in a restaurant, doing three shifts of seven hours each week.  That led to his being out of the house between 2.00pm and 8.00pm.  He had to phone her frequently because she was frightened when she was at home alone, thinking that someone might come to the house and attack her.  Sometimes she phoned the petitioner at work asking him to come home because she was frightened.

[6]        In everyday living, the doctor described Mrs Singh as very dependent on her husband.  He had to encourage her to wash.  He took her shopping, but also did some shopping on his own.  He supervised her medication, and took her to medical appointments, and to the temple.  Mrs Singh stated that she had no other support apart from one family friend who sometimes looked after her when her husband was at work.  She said that if her husband could not remain in the UK then her life would not be worth living.

[7]        Dr Forrester’s report described Mrs Singh as very isolated and dependent on her husband.  He stated that if the petitioner could not remain in the UK that would have a very adverse effect on her mental health.  She would need professional carers for a time during the day, but would be alone at night.  She would miss the emotional care she got from her husband. 

[8]        The addendum to the report is dated 5 December 2013.  In it the doctor states that after consultation with the community psychiatric nurse, he can report that Mrs Singh has become very isolated.  If her husband could not remain in UK, her mental health is likely to deteriorate.  She would need emergency support from the crisis team, followed by a social work referral.  The risk of suicide would need to be carefully monitored. 

[9]        An updated report of 1 July 2014 is produced.  Mrs Singh continues to have low mood and to be fearful.  She is troubled by nightmares of her former husband attacking her, which lead her to wake up screaming and shouting. 

[10]      The decision letter, 6/1 of process, deals with the application under the “partner route” first.  The relevant rules are those contained under Appendix FM and paragraphs 276ADE (1) of the Immigration Rules.  Under the rules, it is a requirement that paragraph EX.1 applies.  That paragraph is in the following terms: 

“Paragraph EX applies if: 

(a)   …

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

[11]      The respondent accepted that the applicant has a genuine and subsisting relationship with a British partner.  The decision maker states: 

“Whilst it is acknowledged that your partner has lived in the UK all her life this does not mean that you are unable to live together in India.  Although relocating there together may cause a degree of hardship for your British partner, the Secretary of State has not seen evidence to suggest that there are any insurmountable obstacles in accordance with EX.2 preventing you from continuing your relationship in India.  You therefore fail to fulfil EX.1 (b) of Appendix FM of the Immigration Rules.” 

[12]      The decision maker went on to consider the private life of the petitioner under Rule 276ADE (1) of the rules.  He decided that the petitioner did not qualify under the rules.  Counsel took no exception to that part of the decision and so I need say no more about it. 

[13]      The respondent purported to consider the application further, having come to the decision on the Immigration Rules.  Under a heading “decision on exceptional circumstances” the following is stated: 

“It has also been considered whether the particular circumstances set out in your application constitute exceptional circumstances which, consistent with your right to respect for private and family life contained in article 8 of the European Convention on Human Rights, might warrant a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules.  In support of your claim you state your partner suffers from several medical conditions and also has been diagnosed with a Schizo-Affective Disorder, depressive type and that you are her main carer.  This has been carefully considered, however a Country of Origin report shows general healthcare to be available in India to treat the medical conditions and a 2011 Country of Origin special request states that special psychiatric care is also available.  Your partner could return with you to India and continue her treatments there, or remain in the UK under NHS care while you return to India and apply for the appropriate entry clearance.  It has therefore been decided that there are no exceptional circumstances in your case.  Consequently your application does not fall for a grant of leave outside the rules.” 

[14]      Counsel for the petitioner challenged the decision concerning the application based on the genuine and subsisting relationship with a partner in the UK.  He argued that there were indeed insurmountable obstacles to family life with that partner continuing outside the UK.  The petitioner argued that the respondent’s consideration of his application was inadequate.  The petitioner’s wife is a British citizen, and it was recognised in the answers from the respondent that she too had rights under article 8.  One of those rights is entitlement to medical treatment under the NHS.  As was made clear in the medical reports, she was unable to look after herself.  The psychiatrist’s opinion was that if she did not have her husband living with her she would require carers.  She had lived in the UK all of her life and it was argued that moving to India, even if she were allowed to live in that country and was able to get medical treatment, would be very difficult for her because she had no familiarity with the country and no relatives there.  Therefore, counsel for the petitioner argued that it was not a reasonable decision on the part of the respondent to say that there were no insurmountable obstacles to the family life continuing outwith the UK. 

[15]      Counsel further submitted that there was no assertion by the respondent that any period spent outwith the UK by the petitioner while he applied for leave to enter would be short.  Therefore, the medical evidence, which was not contradicted, was that the petitioner’s wife would require carers during what could be a lengthy period.  Therefore the alternative of the petitioner applying for entry clearance was not realistic. 

[16]      Counsel submitted that the respondent had set the bar too high in her decision under the rules.  He referred to the case of GAM v Secretary of State for the Home Department [2015] CSIH 28 in which Lord Eassie gave the opinion of the court.  At paragraph 16 his Lordship noted that the right to marry and found a family is a fundamental right protected by article 12 ECHR.  In paragraph 17, he stated: 

“In what we think may be seen almost as a corollary of that fundamental human right, it follows that an application for leave to remain or to enter the United Kingdom as a spouse of someone settled in the United Kingdom consideration must be given to the rights, including of course the rights under article 8 ECHR, of that other spouse. What are in issue are the human rights of the married couple.”

[17]      Counsel relied on the case to argue that Mrs Singh’s rights as a British citizen included the fact that she could not be required to leave the United Kingdom.  He accepted that Mrs Singh being a British citizen did not mean that the application must be granted, but argued it was matter on which considerable weight should be placed.  The proportionality of the decision had to be considered explicitly and in the structured way set out in paragraph 21, in the quotation from Lord Reed in the case of Bank Mellat v HM Treasury [2014] 2 AC 700.  That was completely lacking in the decision letter. 

[18]      Counsel also relied on the case of MIK v Advocate General for Scotland, [2015] CSIH 29, decided by the same division on the same day.  At paragraph 10 the court found that removal to Pakistan of a British citizen was a matter which would have to be weighed up carefully when deciding on proportionality.  That applied even when the marriage on which the petitioner relied had been entered into when his immigration status was precarious.  The court also approved the statement of the deputy High Court Judge in the case of Ganesaban v Secretary of State for the Home Department [2014] EWHC 2712(Admin) as follows

“It matters that the Secretary of State approaches decisions lawfully, asking herself the relevant questions, having regard to legally relevant considerations and giving legally adequate reasons. It matters, in my judgment, that the Secretary of State is the front line decision maker entrusted with addressing these considerations, and, on the face of it, the claimant was entitled, in my judgment to a decision which demonstrably did so. The decision in this case demonstrably did not do so and I am not prepared to refuse judicial review on the basis that the decision would have inevitably been the same had the discretion been exercised.”

[19]      Counsel then turned to the case of A v Secretary of State for the Home Department 2015 SLT 306.  He argued that the question of whether there had to be “a good arguable case” outside the rules before a full article 8 assessment was undertaken was settled in this case; it was not required.  What was needed was recognition that the rules, amended in 2012 to bring article 8 considerations into the decision making process within the rules, did not constitute a complete code for all article 8 claims.  A decision maker required to show that she considered the claim firstly within the rules, and then if the claim within the rules failed, she considered article 8 separately from the rules.  If all the matters had been considered during the first stage, then the decision maker could say so.  Counsel argued that she would have to say that she had turned her mind to article 8, outwith the rules, and either deal with matters not already considered or say that all matters had been considered.  There was no preliminary stage of deciding that there was a good arguable case and then going on to assess it. 

[20]      Counsel commended the useful check list set out in paragraph 24 of the case of A.  He argued that all cases have to be considered on their own facts, and in the current case the extremely poor health of the petitioner’s wife should have been properly considered. 

[21]      Counsel referred to the case of KBO v Secretary of state for the Home Department [2009] CSIH 30, where the case of R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 is referred to for its clear exposition of the questions to be asked when considering proportionality as follows: 

“….these questions are likely to be

1. Will the proposed removal be an interference by a public authority with the applicant’s right to respect for his private or (as the case may be) his family life?
2. If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
3. If so, is such interference in accordance with law?
4. If so is such interference 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?
5. If so is such interference proportionate to the legitimate public end sought to be achieved?”

[22]      Counsel relied on the case as authority of the propositions that “a flagrant or fundamental breach” of article 8 was not required;  and for the point that the present case is not a “foreign case” but rather a case in which the rights of a British subject to live in the UK and get medical treatment here require to be recognised and given due weight.

[23]      Counsel also referred to the case of Manchester City Council v Pinnock 2010 UKSC 45 for its discussion at paragraphs 51 and 52 of exceptionality as a test in matters where proportionality is needed.  Counsel argued that “exceptionality is an outcome, not a guide.”

[24]      Counsel argued that the respondent’s letter “did not pass muster” because there was no recognition of the importance of British citizenship to Mrs Singh; nor of her inability to cope with ordinary daily life without her husband;  and no proper consideration of proportionality either within or outwith the rules.  The respondent should have found that article 8 was engaged.  There was no evidence that the respondent had looked at the circumstances in this case at all.  There was no explanation of why it would be proportionate to refuse leave, given that the result would be either that Mrs Singh had to leave the UK where she had lived all her life, or be referred to emergency social work care.  It was wrong to look for exceptional circumstances, as the cases show that while permission to remain outside the rules will be granted in only a small number of cases, there is no requirement for exceptionality as a gateway.             

[25]      The respondent accepted that the petitioner got married on 8 June 2011 to a British citizen.  Counsel for the respondent argued that the Secretary of State had proper regard to the information as to the physical and mental condition of the petitioner’s wife which was submitted with the application.  In 2013, the petitioner appealed to the First‑tier Tribunal against a decision of the Secretary of State not to grant him a residence card in terms of the Immigration (European Economic Area) Regulations 2006.  He gave evidence before the First‑tier Tribunal to the effect that if he were to be removed from the UK his wife would not be able to continue living there because she was dependent on him.  In a determination dated 6 January 2014, after hearing evidence and seeing both petitioner and his wife, the First‑tier Tribunal judge found that not to be the case.  The petitioner appealed to the Upper Tribunal, which refused his appeal.  Mrs Singh had visited India, and so was capable of travel.

[26]      Counsel for the respondent argued that the respondent had careful regard to the availability in India of treatment for the petitioner’s wife’s medical conditions.  She reached the conclusion in light of that information that the refusal of the application would not result in unduly harsh consequences and therefore that the refusal was not a disproportionate interference with both spouses rights under article 8 of the European Convention on Human Rights in circumstances where the petitioner’s wife could access treatment in India or alternatively could remain in the UK while the petitioner returned to India and applied for the appropriate entry clearance to the UK. 

[27]      Counsel referred to the case of MS v Secretary of State for the Home Department [2013] CSIH 52.  At paragraph 7 the court set out the guidance given to officials about claims outwith the rules, referring to “exceptional circumstances”.  Counsel argued that there was no difficulty in so describing cases in which leave to remain outside the rules was granted.  He referred to paragraph 24 where the court traced the amendment of the Immigration Rules and stated “Following the introduction of the new rules, it can be expected that the cases where article 8 rights are asserted will be fewer than previously.” This is because article 8 rights will be taken into account in the decision making under the rules.  At paragraph 25 the court approved of the Upper Tribunal cases MF (Nigeria) v Home Secretary [2012] UKUT 00393(JAC) and Home Secretary v Izuazu [2013] UKUT 45 (JAC) in which the correct approach is set out, that is that the claim should be examined first under the rules, and if it fails, then consideration under article 8 will be required.  The proportionality of any interference with family or private life will need to be considered.  The court also approved the dicta in R v Nagre [2013] EWHC 720 (Admin) to the effect that if consideration under the rules has fully addressed any family life or private life issues arising under article 8, it would be sufficient for the decision maker to say so.  Counsel sought to rely on the following

Dicta of Sales J from that case: 

“If there is no arguable case that there may be good grounds for granting leave to remain outside the rules by reference to article 8, there would be no point in introducing full separate consideration of article 8 again after having reached  a decision on the application of the rules.”

[28]      Counsel argued, rather faintly, that there may be a conflict between that case of MS and that of GAM.  I do not find that there is any conflict.  In MS, immediately following the quotation from MS given above, the court states: 

“We agree entirely with that quotation. It seems to us that the new rules are likely to deal adequately with the great majority of cases where the article 8 right to private or family life is put in issue. In that event, there is no need to go on and consider article 8 separately, using the analysis set out in R (Razgar) v Home Secretary.”

[29]      In paragraph 28 the court stated that the “good arguable case” criterion as suggested by Sales J should be applied.  However, it goes on to say this:

“the decision maker should examine the circumstances out 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 and consider the application of article 8 in detail.  Furthermore, as Sales indicates, those writing decision letters should demonstrate that they have indeed addressed this test.”

It does not seem to me that there is any real conflict.  The decision that there is a good arguable test is put forward as something to be decided before a full investigation is carried out.  Therefore it refers to a method of proceeding, rather than a different test. 

[30]      In any event, even if there is a conflict, it appears to have been resolved by the passage of time in which many cases have been decided, as can be seen from paragraph 6 of A, in which the court discusses whether there is an intermediary test, of a “good arguable case”.  In MM (Lebanon) v Secretary of State for the Home Department EWCA Civ 985, Aikens LJ said at paragraph 129 that they could not see much utility in imposing an intermediary test.  If an applicant cannot satisfy the rules, then the decision maker will have to decide if there is or is not an article 8 claim.  I agree with counsel for the petitioner who argued in reply to counsel for the respondent that the case law shows that the decision maker has to consider article 8 and has to demonstrate he has done so;  that may in some circumstances be by looking at the facts under the rules and then deciding afresh outwith the rules without reciting all of the facts again. 

[31]      Counsel for the respondent then addressed the approach in GAM to proportionality when a British citizen was involved.  He argued that the rules contemplated a refusal of leave where such a person was involved.  It is correct, he argued, that a petitioner who has a British citizen spouse is not thereby automatically entitled to leave to remain.  He referred to the case of Y v Russia (2010) 51 EHRR 21 in which the European Court of Human Rights found no violation of article 8 in removal of a foreign national married to a Russian citizen.  It regarded the establishment of family life at a time when the immigration status was precarious as important.  It approved the test of exceptional circumstances.

[32]      Counsel for the respondent argued that on the claim outside the rules, the fact that family life was formed when immigration status was precarious is entitled to great weight.  In any event it is for the decision maker to attach such weight as she thought fit.  Her decision cannot be described as perverse.  It is a decision she was obliged to make and a result which she was entitled to reach.  His fall-back position was that the decision maker did have regard to medical difficulties and reached a decision which was not perverse.  She was entitled to say that medical care would be available in India. 

Decision

[33]      I find that the respondent has not shown by the refusal letter that proper consideration has been given to the whole circumstances of this case either within the rules or outside of them.  The medical reports are reasonably full and make bleak reading.  They state that Mrs Singh will need to be referred to emergency services because she will need carers.  There is no suggestion that there is any family or friend who could care for her if her husband was out of the UK for any length of time.  She is said to be a suicide risk. 

[34]      The respondent requires to take these matter into account, and to go through stages of making a decision on the proportionality of refusing leave to remain in face of these consequences for the petitioner’s family life, factoring in that the person suffering the illness is a British citizen with a right to live in the UK;  also taking into account that the marriage was celebrated when the petitioner’s immigration status was precarious. 

[35]      I do not find in the letter any sign of the decision maker having identified the circumstances of the case and then having weighed up all of these circumstances.  There is nothing more that needs to be said in this case, as I find that the respondent has not given the information put before her sufficient consideration.  It is necessary for her to look at this case again. 

[36]      I will uphold the first plea in law for the petitioner and repel the pleas in law for the respondent.