Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 29

P329/13

Lord Eassie

Lord Brodie

Lady Clark of Calton

OPINION OF THE COURT

delivered by  LORD EASSIE

in the Petition

of

MUHAMMAD IRFAN KHAN

Petitioner and Respondent;

against

THE ADVOCATE GENERAL FOR SCOTLAND

Respondent and Reclaimer:

Act:  Lindsay QC, Winter; Drummond Miller LLP (for Maguire, Solicitors, Glasgow)

Alt:  Webster,  MacIver; Office of the Advocate General

17 April 2015

[1]        This is a reclaiming motion marked by the Advocate General against a decision of the Lord Ordinary in a petition for judicial review brought against the Advocate General as representing the Secretary of State for the Home Department.  The petition has been brought by the petitioner in order to challenge a refusal by the Secretary of State to grant him leave to remain in the United Kingdom as the husband of a British citizen. 

[2]        The petitioner is a national of the Republic of Pakistan.  He came to the United Kingdom on 15 July 2006 on a visitor visa which was valid until 24 November 2010.  In November 2010, shortly before the visa expired, he met Ms Jacqueline Tough and formed a friendship with her.  That friendship continued and the petitioner and Ms Tough started to live together in May 2011.  At about the same time the petitioner was detained by officials of the UK Border Agency on the ground that he was working in a shop.  The petitioner was released subject to certain reporting requirements, which he subsequently observed.  On 17 September 2011 the petitioner and Ms Tough married.  The petitioner’s wife was born in the United Kingdom and is a British citizen.  All of her family are British.  She works as a shop assistant. 

[3]        On 22 November 2011 the petitioner applied for leave to remain in the United Kingdom as the spouse of a British national.  By a letter written on behalf of the Secretary of State on 17 January 2012 - “the first refusal letter” – the petitioner’s application was refused.  On 13 February 2012 the petitioner made further representations to the Secretary of State and asked for reconsideration of his application.  Some months later the Secretary of State responded by a letter dated 26 March 2013 – “the second refusal letter”.  She maintained her refusal to grant leave to the petitioner. 

[4]        The petition is directed against both refusal decisions[1].  Put briefly, the basis upon which the petitioner challenges the refusal of leave is that, while his circumstances may not meet the criteria required by the policies of the Secretary of State published in the Immigration Rules (HC395) for the grant of leave to remain, the refusal of that leave constitutes a breach of article 8 of the European Convention on Human Rights – “ECHR”- (protection of private and family life). 

[5]        At paragraph 24 of his opinion[2] the Lord Ordinary indicates that, except in so far as the reasoning of the first refusal letter might have been incorporated into the second, the focus should be on the latter of the two refusal decisions.  However, since he had earlier found the first refusal letter to be vitiated by a number of errors the Lord Ordinary decided, for the avoidance of doubt, that it should be reduced; the interlocutor against which the reclaiming motion is taken accordingly includes reduction of the first refusal letter. 

[6]        During the interval between the submission of the petitioner’s request for reconsideration in February 2012 and the issue of the response of the Secretary of State in March 2013 certain amendments to the Immigration Rules came into force in July 2012.  Those amendments included certain provisions intended to address some aspects of applications involving private and family life.  Those provisions include in particular Appendix FM and paragraph 276ADE.  Reflecting the terms of paragraph EX1 (b) of Appendix FM, the second refusal letter held that there were no “insurmountable obstacles” to the petitioner and his wife continuing their family life together in Pakistan.  Further, since none of the criteria set elsewhere in Appendix FM or paragraph 276ADE of HC395 were met, leave was refused in terms of the Immigration Rules.  As we have already indicated, the contention for the petitioner before the Lord Ordinary was that the refusal of leave constituted an infringement of article 8 ECHR.  Putting matters very briefly, the Lord Ordinary considered, in the light of the authorities to which he refers in his opinion, that while the test of “insurmountable obstacles” may be set by the Immigration Rules, that test was not to be equiparated with the requirement under article 8 ECHR that the interference with the private and family life in question must be proportionate.  The refusal letter did not attempt any such assessment of proportionality.  The Lord Ordinary accordingly considered the second refusal letter also to be vitiated; and the interlocutor which the Advocate General reclaims similarly reduces the decision contained in the second refusal letter.

[7]        While the interlocutor reclaimed by the Advocate General thus embraces reduction of both refusal letters and while the written grounds of appeal on behalf of the Advocate General maintain that both branches of the Lord Ordinary’s decisions are wrong in law, at the outset of his oral submissions counsel for the Advocate General made plain that he did not seek recall of the interlocutor of the Lord Ordinary so far as it related to the first refusal letter.  The reduction of that decision was accepted by the Advocate General.

[8]        As respects the second refusal letter, counsel for the Advocate General initially advanced oral submissions to the effect that the Lord Ordinary had erred in the respect that he had, said counsel, failed properly to appreciate that the provisions added in July 2012 to HC395 were a proportionality test.  However, in the course of those submissions counsel for the Advocate General accepted that the second refusal letter failed to give any consideration outwith the Immigration Rules to the rights of the petitioner and his wife under article 8 ECHR.  Counsel also accepted that the omission by the decision taker to give any such consideration was an error in law.  Having thus recognised that error in the decision, counsel for the Advocate General went on to submit that the error was not material.  The error was not material, and the outcome would inevitably be the refusal of the petitioner’s application because, said counsel, the only matter put forward by the petitioner was the fact of his marriage.  The petitioner thus did not put forward any exceptional circumstances.  The family life created by the marriage had been so created at a time at which the petitioner’s immigration status was precarious.  Before the removal from the country of a party to a marriage contracted at a time in which the party’s immigration status was precarious could be judged to be in breach of article 8 ECHR it was essential that there be exceptional circumstances.  Counsel further submitted, under reference to paragraph 39 of the judgment of the Deputy High Court Judge (Fordham, QC) in The Queen on the application of Ganesabalan v The Secretary of State for the Home Department [2014] EWHC 2712 (Admin), that if the application were bound to fail in any event, and the error of law were thus not material, judicial review of the decision would be refused on that account. 

[9]        Accordingly, in light of the concessions by counsel for the Advocate General, the only point remaining in this reclaiming motion is in relatively short compass.  In our opinion that remaining point is not well founded.

[10]      First, as was pointed out by counsel for the petitioner, it is not correct to say that the only matter put forward by the petitioner is the mere fact of his marriage.  As is evident from the representations made by the petitioner, removal to Pakistan would have material financial and housing consequences for the petitioner’s wife; and, importantly, the petitioner had pointed out that, given the security situation in Pakistan, there were evident concerns for the safety of his wife (who is, of course, a woman born and brought up in the United Kingdom of British parents).  Further, in our opinion, any assessment of the proportionality of the refusing of leave would require to consider carefully the consequences for the petitioner’s wife of requiring her to leave the United Kingdom or forfeit the substance of her marriage. 

[11]      Secondly, we are not able to accept the proposition advanced by counsel for the Advocate General that in any case in which at the time of contracting marriage the immigration status of one of the parties was precarious (seemingly to any extent) then some “exceptional circumstance” must be found before any question of an infringement of article 8 ECHR may arise.  As we understood him, counsel sought to base his proposition on the final sentence of a passage within paragraph 39 of the judgment of the European Court of Human Rights – “ECtHR”- in Rodrigues da Silva, Hoogkamer v The Netherlands (2007) 44 EHRR 34:

“…Art. 8 does not entail a general obligation for a State to respect immigrants’ choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest.  Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (e.g. a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion.  Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Art. 8.”

On our reading of that passage and on our understanding of the function of the ECtHR as a court charged with interpreting the Convention and not with edicting rules of law, the relevant sentence is simply a repetition of an earlier comment by the court as to the likely operation of the Convention provision.  As is plain from a reading of the passage as a whole, whether an interference with private and family life may be justified by the State as proportionate to a legitimate aim depends upon an evaluation of the whole circumstances of the case.  What is given by way of example is not to be elevated into a legal condition.  It may also be noted, that as counsel for the petitioner pointed out, in its actual decision in Rodrigues da Silva – which involved “precarious” immigration status -  the ECtHR found a breach of article 8 to have occurred  without identifying any “exceptional circumstance” or stating that the circumstances were exceptional .  In these circumstances we consider that counsel for the petitioner was well founded in his submission that one simply could not say that anyone properly carrying out the proportionality assessment required by article 8 ECHR  in this case would inevitably conclude that the interference with the private and family life of both the petitioner and his wife was proportionate. 

[12]      Thirdly, we find force in what was said by the Deputy High Court Judge at paragraph 46 of his judgment in Ganesabalan v Secretary of State for the Home Department:

“It matters that the Secretary of State approaches decisions lawfully, asking herself the legally 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 inevitably have been the same had the discretion been addressed.”

[13]      Accordingly, we consider that the reclaiming motion must be refused and that the court should adhere to the interlocutor of the Lord Ordinary.

[14]      For completeness, we would record that, as we understood it, the submission of counsel for the Advocate General on absence of materiality proceeded on the basis of the judgment of the Deputy High Court Judge in Ganesabalan v Secretary of State for the Home Department, particularly paragraph 39 which refers to the discretionary nature of judicial review in England and Wales.   We intend no criticism of counsel but in the absence of discussion of the matter and citation of Scottish authority we would not wish to be taken as necessarily accepting or endorsing a proposition that  the exercise of the supervisory jurisdiction of the Court of Session is in every respect equally discretionary in its nature to the judicial review jurisdiction practiced by the courts in England and Wales.