Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 31

P101/13

Lord Menzies

Lady Smith

Lord McGhie

OPINION OF THE COURT

delivered by LADY SMITH

in the petition

by

ASIF ALI ASHIQ

Petitioner and Respondent;

for judicial review of a decision of

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent and Reclaimer:

Petitioner and Respondent:  Dewar QC, Winter;  Drummond Miller LLP

Respondent and Reclaimer:  Webster;  Office of the Advocate General

28 April 2015

Introduction
[1]        This reclaiming motion concerns the approach taken by the Secretary of State for the Home Department to a claim in a fresh application that removal of an applicant from the country would amount to a disproportionate interference with the family life he has with his wife, who is resident in Glasgow:  article 8 ECHR.  The question for this court is:  did the Lord Ordinary err when deciding that the Secretary of State’s rejection of the application should be set aside?

The “new” Immigration Rules (HC 194)
[2]        Before considering the particular facts and circumstances of the present case, it is important to understand the context in which the petitioner’s application was made.  At the time of the application under consideration – the “fresh” application referred to below – new Immigration Rules had come into force which were intended to cover circumstances where an applicant for leave to enter or remain in the country relied on article 8 ECHR.  They were promulgated on 13 June 2012 and came into force on 9 July 2012:  see Statement of Changes (HC 194).  For an explanation of the constitutional status of the new rules, we would refer to the discussion by this court in paragraphs 19 to 22 of the opinion of the court in MS v Secretary of State for the Home Department [2013] CSIH 52, delivered by Lord Mackay of Drumadoon. 

[3]        Paragraph 115 of HC 194 provides for the insertion of “Appendix FM” which relates to “Family Members”.  The Secretary of State’s general intention is explained at paragraph “GEN.1.1”:

“This route is for those seeking to enter or remain in the UK on the basis of their family life with a person who is a British Citizen, is settled in the UK, or is in the UK with limited leave as a refugee or person granted humanitarian protection. It sets out the requirements to be met and, in considering applications under this route, it reflects how, under Article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic well- being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others. It also takes into account the need to safeguard and promote the welfare of children in the UK.”

There are, thereafter, detailed provisions specifying matters potentially material to a family life claim; applicants may be able to establish a right to remain if they can show they fall within those provisions.  The rules are detailed and extensive.  It is clear that they attempt to cover a wide range of circumstances.  They also, in their own terms, leave scope for individual assessment (MF(Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544, Lord Dyson MR, at paragraph 20). 

[4]        The rules cannot, however, be construed as providing a complete code for all article 8 claims:  MS v Secretary of State for the Home Department;  MF (Nigeria) v Secretary of State for the Home Department).  Facts and circumstances are bound to arise from time to time which were  not expressly foreseen by the drafters of the rules yet are such as might, on an application of article 8, require the grant of a right to remain.  The rules do not dispense with the duty, under primary legislation (the Human Rights Act), of those who make decisions about family life claims to comply with the provisions of the convention.  Nor could they properly have done so; their exposure to the democratic process, as explained in MS, was limited.  Thus, if a family life claim arises and it does not qualify under the rules, the Secretary of State must nonetheless consider it, in implement of her statutory duty.

[5]        But how is a decision maker to do that and to show that, when reaching his decision, he recognised and understood his article 8 duties?  How is he to show that he did not confine himself to an application of the rules?  The answer has been discussed in a number of recent cases (Izuazu (Article 8 – new Rules) [2013] UKUT; R (Nagre) v Home Secretary [2013] EWHC 720 (Admin); MS v Secretary of State for the Home Department;  Singh v Secretary of State for the Home Department, Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74).  These discussions refer to there being two stages – first, consideration of whether the applicant can bring himself within the new rules and then, secondly, whether, considering article 8 separately from the rules, leave to remain should be granted.  Equally, however, as the discussions have progressed, it has been made clear that it is not a formulaic approach that is required.  The point is, rather, one of substance.  The decision maker needs to show that the application has been considered by reference to the rules and that it has also been considered simply by reference to article 8 but the need is for him to do that, not to do it in a particular way.  No doubt consideration by reference to the rules will normally take place first. If it is not decided that leave to remain can be granted on that basis, the decision maker will then need to address article 8.  It may be that, at that stage, the decision maker concludes that any family or private life issues raised have in fact already been fully addressed at the first stage in which case, adopting the language of Underhill LJ in Singh v Secretary of State for the Home Department at paragraph 66, “obviously there is no need to go through it all again” and all that will be necessary is for the decision maker, “to say so”.  There will be no need to conduct a full separate examination of the facts on an application of article 8 outside the rules if all the relevant issues have already been addressed in the consideration under the rules.

[6]        An issue arose before us, albeit somewhat tangentially, as to whether there is an intermediary test – between consideration under the Rules and consideration outside the rules – involving the decision maker deciding whether the application includes a “good arguable case” that leave should be granted on article 8 grounds, outside the Rules and only if he concludes that it does, going on to assess that claim.  The discussions in paragraph 30 of MS and paragraphs 29 - 30 of Nagre might be thought to suggest that there is an entirely separate stage involving such a test.  In MM (Lebanon) v Secretary of State for the Home Department [2014] EWCA Civ 985, Aikens LJ said, at paragraph 129, that he could not see much utility in imposing such a further, intermediary, test; if the applicant cannot satisfy the rules, then there either is or there is not a further article 8 claim and that will have to be determined by the relevant decision-maker.  We agree.  That is what, essentially, was clarified in Izuazu, MS, and MF and we do not read the references to “good arguable case” as imposing another separate hurdle to be overcome by an applicant.  The reference to “good arguable case” must, we consider, be read as referring to the need for it to be evident from the terms of the application that an article 8 issue arises.  For the avoidance of doubt, we do not read it as, in a fresh application case, detracting from the terms of Rule 353 (see below).  It does not raise the bar any higher than the need for there to be “realistic prospects” of the claim succeeding.  That was recognised by the court in MS where, having discussed whether the petitioner had presented a good arguable case, it observed that, in concluding that there was no realistic prospect of the claim succeeding before an immigration judge, the Lord Ordinary had “taken in the ambit of the test that we have adopted.” (at paragraph 36)

[7]        Following the decision of the Upper Tribunal in MF and in Isuazu, although she did not agree that there was any need for an express assessment of article 8 outside the rules, the Secretary of State considered it prudent, in certain applications which had already been considered under the new rules, to carry out an assessment expressly by reference to article 8.  She issued further letters in these cases, explaining that she had done so and advising of the outcome.  Such a letter was issued in this case:  see the “second letter” referred to below.

Background
[8]        Mr Ashiq (“the petitioner”) is a Pakistani national.  He has been in the UK for a number of years but has not been granted leave to enter or leave to remain.  He arrived here illegally in 2003, 2004 or possibly in 2005.  He claimed asylum when he was arrested for a road traffic offence in 2010.  His asylum claim has been rejected by the Secretary of State on four occasions and, on appeal, by two separate First–tier Tribunal judges. 

[9]        The petitioner also claims he has family life in the UK because he has married a woman who lives here.  He is said to have met her in a shop on 1 August 2011.  He married her on 30 August 2011, when he knew his immigration status was precarious;  by that date, the Secretary of State had refused his applications on three separate occasions – the most recent of which was by letter dated 4 June 2011 - and he had been unsuccessful in an appeal to the First‑tier Tribunal.  He had not appealed to the Upper Tribunal and he had, at the time of the present application, no outstanding applications or appeals.

[10]      The petitioner is said to have lived with his wife since their marriage.  She is also a Pakistani national but was granted indefinite leave to remain in the UK in 2007, by which date she had been living in the UK for over 30 years.  However, she speaks Punjabi and retains a Pakistani national identity card.  She is not a British citizen.  She is in receipt of state benefits from which she supports the petitioner.  The petitioner and his wife have no children.

[11]      The petitioner’s mother and his two sisters live in Pakistan.

Appeal to the First‑tier Tribunal
[12]      At a hearing before Immigration Judge Dennis, on 1 February 2012, the petitioner’s appeal was partly based on article 8 grounds; he claimed that removal would be a disproportionate interference with the family life he had with his wife.  This was the petitioner’s second appeal to the First‑tier Tribunal but it was the first occasion on which he had sought to rely on the fact of his marriage; the first appeal had taken place in 2010, prior to his marriage.  His wife gave evidence at the 2012 hearing and said – repeatedly - that she would be happy to go back to Pakistan if her husband was returned there.

[13]      At paragraphs 43 and 44, Immigration Judge Dennis explains:

“43. …She was specifically asked if the appellant were returned would she go with him and 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 which she replied ‘Yes’ – that she would return with him. …In re- examination she was again, for confirmation and clarity, asked if the appellant were sent back whether she would accompany him and she replied again: ‘Yes’.  Finally asked if she would be happy to go back and live with him in Pakistan she replied once more: ‘Yes’.

44. At the close of the hearing, after the matter had been reserved for written determination, the appellant was asked if he had any further questions about what happened next. At this point he launched into an urgent explanation that his wife ‘had lost her temper’ when she said that she could return with him to Pakistan. There had been no indication of anything of the sort. Perhaps the appellant meant she had ‘gone off the script’. I found her a credible witness trying hard in a difficult situation she barely understood to tell the truth for herself.”

The petitioner’s appeal was unsuccessful.  Immigration Judge Dennis considered that although family life existed as between the petitioner and his wife, it would not be breached if the petitioner were to be removed because, on the evidence before him, she would choose to accompany him.  Separately, he asked himself whether, in the event that she changed her mind and decided not to accompany him, there would be a disproportionate interference with family life.  He concluded that there would be no such interference.  At paragraph 50, he sets out his reasons for that conclusion:

“50. It has been repeatedly found the appellant is 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 dependant on him for her support, income or accommodation – rather it is just the reverse. The relationship is a very new one. The appellant himself is 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.” 

Fresh application
[14]      The petitioner subsequently presented a fresh application to the Secretary of State which was, principally, another asylum claim but it included some fresh information in support of his article 8 claim.  The application letter from the petitioner’s solicitor is dated 4 July 2014 but two statements which accompanied it are dated 11 July 2014 (indicating that, notwithstanding the date on the letter, the application must have been sent no earlier than 11 July), by which time the new Immigration Rules had come into force.  It is the Secretary of State’s refusal of that application that is challenged in the current judicial review proceedings.

[15]      The fresh application did not seek to depart from the factual information put before Immigration Judge Dennis save in relation to the position of the petitioner’s wife regarding  the question of whether or not she would accompany him to Pakistan if he were to be removed.  In the statements accompanying the application, the petitioner stated that his wife had felt under pressure at the tribunal hearing and would not in fact be able to move to Pakistan and his wife stated that she felt intimidated and under pressure at the tribunal hearing.  She explained that she had two sons from a previous relationship who are now in their twenties.  They had lived with their father as children, from about 2000.  She had, however, maintained a good relationship with them, they live 15 – 20 minutes’ drive from her and she sees them “as often as possible”.  She also stated that she has a mother and three sisters in the UK and that she sees them “regularly”.  That is all she said about her family life in the UK.

[16]      The Secretary of State responded to the fresh application by letter dated 30 July 2012 (“the first letter”), rejecting it.  Her letter expressly applies the relevant sections of the new Immigration Rules and, on that basis, concluded that removal of the petitioner would not be a disproportionate interference with his right to family life (see: paragraph 59).  The letter does not include separate or express consideration of article 8 outwith the rules nor does the letter say, for instance, that that issue was addressed but it was concluded that all aspects of the family life claim had already been fully and properly assessed and the decision maker had, looking at matters without reference to the rules, still reached the same conclusion. 

Paragraph 353 of the new rules
[17]      Paragraph 353 of the new rules applied to the petitioner’s fresh application:

“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.”

The Secretary of State requires, accordingly, to ask herself whether, when all the earlier material and the new material is considered together, the applicant has a realistic prospect of succeeding in an appeal to the First‑tier Tribunal, from her rejection of the claim.  Counsel for the Secretary of State accepted that “realistic prospect of success” is not a high test and indicates that the prospects need only be more than fanciful:  R (on the application of AK(Sri Lanka)) v Secretary of State for the Home Department [2010]1 WLR 855 per Laws LJ at paragraph 34. 

The second letter
[18]      The Secretary of State’s second letter was dated 18 March 2013 and was presented as being a “further explanation” of why the fresh application had no realistic prospects of success.  The findings of Immigration Judge Dennis were noted as including consideration of what his conclusions would have been if the petitioner’s wife, contrary to her evidence, in fact chose not to accompany him to Pakistan and his conclusions at paragraph 50 (see above) were looked to as being “a useful starting point”.  However, the letter then, over eight subsequent paragraphs, set out express consideration of the facts relevant to the petitioner’s family life claim and concluded:

“In summary, in light of the above, it is not accepted that there is a realistic prospect of an Immigration Judge taking a different view to that already reached by IJ Dennis on whether your client’s removal to Pakistan would be a disproportionate breach of his, or his wife’s, rights under Article 8 of the ECHR. The outcome of the ‘second stage assessment’ is no different from the assessment under the Rules.”

The second letter was issued after the commencement of these proceedings for judicial review – which was by way of a petition challenging the decision in the first letter - but before the first hearing.  The petition was subsequently amended to include a challenge to the second letter as well.  The petitioner’s position was that the Secretary of State ought, instead, to have conceded the original petition and considered his application afresh.  It was not, however, suggested that the second letter had been issued other than in good faith.

The Lord Ordinary’s decision
[19]      The Lord Ordinary held that the Secretary of State, in her first letter, failed to consider the petitioner’s application outwith the rules; on any reading of the letter, it could not be said that she had considered, separately from the rules, whether refusal of leave to remain would be a disproportionate breach of article 8.  Counsel for the Secretary of State submitted to the Lord Ordinary that even if she had erred in that respect, it did not matter because it was not a material error.  The Lord Ordinary’s opinion is, however, silent on that point; the submission is recorded but has not been determined.

[20]      The Lord Ordinary was also persuaded that the second letter did not cure the problem; it could not be read as explanatory of what was in the mind of the decision maker at the time of the original decision letter and it also failed to represent a proper fresh consideration of the family life claim outside the rules.  The Secretary of State was not, accordingly, entitled to rely on it. In any event, it did not represent a proper fresh consideration of the application of article 8 to the circumstances of the case.

Discussion
The first letter
[21]      Whilst counsel for the Secretary of State did not concede that the first letter was inadequate, his principal submission was that any shortcoming was, in any event, immaterial and, accordingly, not an error of law or, at least, not judicially reviewable:  R (on the application of Ganesabalan) v Secretary of State for the Home Department [2014] EWHC 2712 at paragraph 9;  Singh & Khalid v Secretary of State for the Home Department at paragraph 71.  It would not, he submitted, have been rational to conclude that there was a realistic prospect of success before an immigration judge on a consideration of the petitioner’s application outside the rules.  The petitioner’s position was a precarious one and he had presented no non‑standard or particular features of a compelling nature showing that removal would be unjustifiably harsh.  The application was, given the whole surrounding facts and circumstances, bound to fail. 

[22]      Counsel for the petitioner submitted that the first letter demonstrated that the Secretary of State had failed to consider matters outside the rules at all and it could be concluded that the Lord Ordinary had in fact considered whether the failure was material because, when it came to her discussion of the second letter, she had addressed materiality.

[23]      We agree that the first letter does not provide the necessary assurance that the Secretary of State considered whether or not leave to remain should be granted outside the rules.  She, accordingly, erred;  she required to consider it because the two statements that accompanied the letter containing the fresh application did set out, albeit briefly, a family life claim that would not be covered by the rules.  We do not, however, agree that the Lord Ordinary’s opinion shows that she went on to consider whether the error was a material one.  She appears to have overlooked the need to do so.  The Lord Ordinary ought, however, to have determined counsel for the Secretary of State’s submission that any failure in respect of the first letter was, in all the circumstances, immaterial.  Had she done so, she would, we consider, have been bound to find that the failure alleged was immaterial, for the reasons explained below and, accordingly, also bound to dismiss the petition.

[24]      Had the Secretary of State completed the task required of her, when asking herself – for the purposes of Rule 353 - whether there were realistic prospects of the petitioner’s family life claim succeeding before an immigration judge, she would have been bound to consider the facts and circumstances that such a judge would have required to weigh against the interests of the community as a whole in the maintenance and enforcement of an effective immigration policy.  They were:

• that the petitioner’s marriage was entered into at a time when he knew his immigration status in the UK was precarious;
• the marriage was of short duration;
• there were no children of the marriage;
• the petitioner’s wife was not dependent on him for the provision of a home or financial support;
• the petitioner’s wife was a Pakistani national and not a British National;
• the petitioner’s wife spoke Punjabi;
• the petitioner’s wife had lived independently of the petitioner, in the UK, for some 30 years before meeting him;
• there was no question of loss of employment for either the petitioner or his wife;
• there were no health issues;
• there was no gender issue;
• there were no educational issues;
• there were no religious belief issues;
• there were no physical issues;
• the petitioner might not require to be absent from the UK for long as he could apply for entry from abroad;
• the petitioner had family in Pakistan;
• the petitioner’s wife’s children were adults who did not live with her and did not do so during childhood, if she were to accompany the petitioner, any break in such face to face contact as could be inferred from the reference to her seeing them “as often as possible” need not be unduly lengthy, and alternative methods of communication could be used in the meantime;
• the petitioner’s wife had not identified any particular aspect of reliance by or on her children;
• similar considerations applied in relation to the relationship between the petitioner’s wife and her mother and sisters;
• that although the statements dated 11 July 2012, indicated that the petitioner’s wife was not, for family reasons, willing to accompany him to Pakistan, that had not been her position when she gave evidence before Immigration Judge Dennis some five months earlier and he had been satisfied that she was telling the truth at that time; and
• when the petitioner gave that evidence, she did not, it seems, make any mention of her sons,her sisters or of an ongoing relationship with her mother.

It would have been very much in accordance with the consistent jurisprudence of the ECtHR for an immigration judge to have regard to these factors ( see:  Rodrigues da Silva and Hoogkamer v Netherlands (2007) 44 EHRR 34 at paragraph 39) and to place particular weight on the precarious nature of the petitioner’s immigration status when he married.  Any such judge would, we consider, have been bound to conclude that, in all the circumstances, it was not unreasonable to expect the petitioner’s wife to accompany him but, in any event, whether she stayed or went to Pakistan, the extent to which his and her family life would or might be disrupted would not make removal unduly harsh and would not be disproportionate.  Such a judge could also be expected to bear in mind that it is now well established that it is not necessarily disproportionate for a spouse to be required to leave the UK and seek entry clearance from abroad:  Secretary of State for the Home Department v Treebhowan [2012] EWCA Civ 1054. 

[25]      In these circumstances, consideration of the second letter does not arise and the reclaiming motion must succeed.

The second letter
[26]      We can, accordingly, deal with the issues raised in relation to the second letter briefly.

[27]      An issue arose as to its status. In particular, it was challenged by the petitioner as being an illegitimate attempt to supplement the reasons for a decision that had already been taken whereas the Secretary of State’s position was, perhaps, more nuanced; the second letter was issued without prejudice to what had gone before and the context was such as to make it appropriate to take it into account.  This is not an issue which, in the event, we require to determine but we should record that we accept it would have been open to the Secretary of State to make an entirely fresh decision on the applicability of article 8 outside the rules, at the stage of the second letter.  Indeed, at one point, senior counsel for the Secretary of State submitted to us that that is what had occurred.  It does, we consider, have a bearing on the evidential status of the letter . As Lord Reed observed in Chief Constable, Lothian and Borders Police v Lothian and Borders Police Board [2005] SLT 315, whether or not it is permissible for an adjudicating body to add supplementary reasons is always a question of circumstances.  Although the Lord Ordinary was persuaded that the reasoning of Lord Tyre in AS for Judicial Review [2013] CSOH 82 should be applied so as to exclude the second letter, we note that the passage relied on by the Lord Ordinary referred to the decision maker providing “reasons for a hypothetical decision taken on a basis different from that on which the decision under challenge was in fact taken.” However, as matters were explored before us, it appeared to be accepted that, in the present case, there was no question of a decision at the stage of the first letter that was any different from that which emerged at the time of the second letter. The outcome as evidenced by the second letter was in no sense in conflict with that at the time of the first letter. It, rather, addressed a separate issue in explicit terms – one which had not been explicitly in issue at the time of the decision reported in the first letter.   In all these circumstances, we tend to the view that it would have been quite proper to consider the terms of the second letter but, in the circumstances, we do not require to decide the point. For completeness, we deal below with the substantive content of the second letter.

[28]      Counsel for the petitioner sought to persuade us that the Secretary of State had confined herself to confirming the conclusion of the immigration judge at paragraph 50 (see above).  We cannot accept that he was right about that.  It is, to the contrary, clear that his conclusion was looked to as no more than a useful starting point and that the decision maker plainly went on to consider the application of article 8 to the whole facts and circumstances for herself.  The Lord Ordinary was persuaded that the second letter did not represent “a proper fresh consideration of circumstances that might require a different outcome from the assessment made under the Immigration Rules”.  We disagree.  It is difficult to see how the decision maker’s considerations could have been more extensive, given the paucity of the information provided by the petitioner and his wife.  The letter was also criticised for commenting that there was no evidence that family life exists between the petitioner’s wife and her sons, mother and sisters.  That is not, strictly, correct as there was, of course, evidence of some such family life but the evidence was so vague and limited that the observation is understandable if read in context; the fact that she would be leaving family behind in the UK is acknowledged in the next paragraph.  We do not, overall, detect any material error. 

[29]      We consider that counsel for the Secretary of State was correct to say that there could be no interference with the second letter other than on judicial review grounds.  It would not be enough for the court to conclude that it might have decided the issue differently; the question is whether or not the conclusion reached was one which was open to the decision maker and we have no doubt that the decision maker was, plainly, entitled to conclude as, in the second letter, she did.

Decision
[30]      We will, accordingly, pronounce an interlocutor allowing the reclaiming motion, recalling the Lord Ordinary’s interlocutor of 2 May 2014, sustaining the Secretary of State’s third plea in law and refusing the petition.