Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 45

XA150/14

OPINION OF LORD BRODIE

in the application for leave to appeal under section 13(4) of the Tribunals, Courts and Enforcement Act 2007

by

(FIRST) DILIP UPRETI;  (SECOND)  PARBATA SITAULA UPRETI;  (THIRD)  DIPSHIKHA UPRETI;  and (FOURTH) DURSHAN UPRETI (Assisted Persons)

Applicants;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Applicants:  Byrne;  Drummond Miller LLP

Respondent:  Gill;  Office of the Advocate General

4 June 2015

Introduction

[1]        This is an application under section 13(4) of the Tribunals, Courts and Enforcement Act 2007 for permission to appeal against a decision of the Immigration and Asylum Chamber of the Upper Tribunal (“the UT”) dated 24 July 2014.  The application is made by each of Dilip Upreti, his wife and two children.  The Secretary of State for the Home Department appears as the respondent.

[2]        An application for permission was refused by the UT on 23 September 2014.

[3]        The right of appeal (with permission) which is conferred by section 13(1) of TCEA is “on any point of law arising from a decision made by the Upper Tribunal”.  What amounts to error of law can be understood by reference to the decision in HA v Secretary of State for the Home Department 2008 SC 58.  However, by virtue of RCS 41.57 permission shall not be granted unless the court considers either that (a) the proposed appeal would raise some important point of principle or (b) there is some other compelling reason for the court to hear the appeal.  Thus, subject to the minor and for the purposes of this application apparently immaterial difference that RCS 41.57 does not currently contain a reference to an important point of practice, when deciding whether to grant permission this court is required to apply what is described in Eba v Advocate General 2012 SC (UKSC) 1 (and elsewhere) as the second appeals test.

[4]        The first applicant was born on 17 August 1974.  He entered the United Kingdom with leave as a student on 20 August 2005.  He has successfully completed his studies and graduated doctor of philosophy.  The second applicant is the wife of the first applicant.  She and the third applicant who is the daughter of the first and second applicants, born on 14 August 2003, entered the United Kingdom with leave to enter as dependents of a student on 22 November 2005.  The fourth applicant is the son of the first and second applicants. He was born in the United Kingdom on 24 November 2008.

[5]        On 22 January 2007 the first applicant was given leave to remain in the United Kingdom until 22 February 2009 on the Fresh Talent – Working in Scotland Scheme.  The second and third applicants were given leave to remain until the same date as his dependents.  On 19 January 2009 the first applicant was given leave to remain in the United Kingdom as a student until 31 May 2013.  The remaining applicants were given leave to remain until the same date as his dependents.

[6]        This application (or, perhaps, strictly, these applications) for permission to appeal relates (or relate) to the respondent’s refusal of the applicants’ application, made on 29 November 2012, for variation of their leave to remain.  It would appear that however precisely the application for variation of leave to remain was framed, the respondent dealt with it as separate applications at the instance of each of the four applicants.  Separate reasons for refusal letters were sent to each of the applicants.  I was shown a copy of the letter addressed to the third applicant, dated 20 June 2013, advising that “We have considered your application”.  On refusal of leave to remain removal directions were made in respect of all the applicants in terms of section 47 of the Immigration Asylum and Nationality Act 2006.

[7]        The applicants appealed the respondent’s refusal.  That appeal was refused by the First-tier Tribunal (“the FTT”) in terms of determination promulgated on 24 February 2014.  Permission to appeal that decision to the UT was granted by the FTT on 13 March 2014.  As already indicated, the applicants’ appeal was refused by the UT on 24 July 2014.

Immigration Rule 276ADE
[8]        The respondent considered the third applicant’s application by reference to paragraph 276ADE of the Immigration Rules (what appears in the reasons for refusal letter is:  “Furthermore in refusing your application consideration has been given to your private life under article 8 which from 9 July 2012 falls under paragraph 276ADE of the rules.”)

[9]        The relevant part of Immigration Rule 276ADE is in these terms:

“Private life

Requirements to be met by an applicant for leave to remain on the grounds of private life

276ADE (1) The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of the application, the applicant:

…

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK;

…”

[10]      Immigration Rule 276ADE came into force on 9 July 2012.  It is among the provisions which, in the period shortly after their introduction were referred to collectively as “the new rules”.  It sets out the requirements to be met by a person who has applied for leave to remain in the UK on the basis of his or her private life.  It is discussed in the opinion of the Extra Division in MS (India) v Secretary of State for the Home Department [2013] CSIH 52.  Given that it had been the executive’s intention in introducing the new rules to provide a mechanism for considering respect for private and family life, the Extra Division identified the primary issue in MS as being the extent to which the respondent was obliged after considering whether the petitioner’s claim fell within the rules, to go on to consider separately whether it was also in compliance with article 8 of the European Convention and, if so, how far such consideration must extend. In addressing that issue the Extra Division endorsed what had been said by Sales J in R (Nagre) v Home Secretary [2013] EWHC 720 (Admin) (including his broad agreement with what had appeared in Izuazu (Article 8 – New Rules) Nigeria v Secretary of State for the Home Department [2013] UKUT 45).  In paragraph 30 of the opinion delivered by Lord Mackay of Drumadoon, the court summarised its opinion on the effect of the enactment of the new rules as follows:

“30.... 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. ... The relevant factors will ... 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.”

Proposed ground of appeal
[11]      In summary, what is proposed as the ground of appeal is as follows.  The FTT did not apply Immigration Rule 276ADE (1) (iv) to the case of the third applicant.  That had been the basis of the appeal to the UT.  The UT refused the appeal because it held that the application of the rule was in reality no different from analysing the article 8 rights of the family as a whole.  This was an error.  The third applicant’s rights under the rule are separate from and additional to her rights as guaranteed by article 8.  Consideration of her application should have involved a two-stage process, first by reference to the rule, then by reference to article 8.

Submissions
Applicants
[12]      In moving the court to grant permission, Mr Byrne submitted that the proposed appeal would raise an important point of principle.  He advanced five propositions: (1) the Immigration Rules comprise a source of law separate from the European Convention; (2) the Immigration Rules give legal rights to those who qualify under them;  (3) a decision made under reference to the Immigration Rules may give rise to a different outcome than would arise under reference to the Convention;  (4) decision-makers must therefore adopt a structured approach to their decision-making, first under the Immigration Rules, then, separately, under the Convention;  and (5) in any event, whether it was “reasonable” in terms of Rule 276ADE (1) (iv) for a child to return to its country of origin was not to be answered by applying the test of Wednesbury reasonableness.

[13]      It was Mr Byrne’s submission that the principles expressed in these propositions had not been respected at any of the previous levels of decision-making.  The positions of the four family members had been looked at together, rather than first being considered separately before assessing how the respective positions inter-related under reference to their respective article 8 claims.  The respondent in her decision letter addressed to the third applicant stated:  

“You are under the age of 18 years but as your whole family has been refused the Secretary of State is not satisfied that you can meet the requirements of Rule 276ADE (1) (iv).”

The FTT at paragraph 13 of its determination stated its understanding that it was the position of the parties that “the Appellants cannot meet the requirements of the immigration rules (save the third Appellant meeting the seven year requirement).”  There is no further individual consideration of the position of the third applicant or the relevant immigration rule.  Rather, as appears from paragraphs 28 to 30 and 32, the family is considered as a unit.  This deficiency was recognised in the FTT’s grant of permission to appeal to the UT, dated 13 March 2014. In the grant of permission it is noted that while the third applicant potentially met the requirements of Rule 276ADE (1) (iv), the FTT in its determination of 26 February 2014 had made no finding in that regard and therefore no consideration of how that might impact on the article 8 claims of the other applicants.  When it came to consider the applicants’ appeal the UT, at paragraph 15 of its determination, accepted that the FTT had not dealt separately with the outcome under the Immigration Rules but had little doubt that this was because the case was not put on the basis that the third applicant’s case hinged on the criterion of reasonableness in the relevant rule, nor that her case should be considered first and then the other cases hung on the outcome.  

“The case had plainly been put as one of the overall reasonableness and proportionality of removal of the family as a unit. That was the correct approach.”

It was Mr Byrne’s submission that this was the wrong approach.

[14]      Mr Byrne’s criticism of the UT did not stop there.  The UT had gone on to consider what difference there might be as between “reasonable” in terms of Rule 276ADE (1) (iv) and a proportionality test.  In that, founding on a passage in Macdonald Immigration Law and Practice, 8^th edit, vol 1 at paragraph 8.20 for the proposition that the proportionality test is more demanding than the Wednesbury test and the fact that “article 8 outside the Rules” cannot come into play until article 8 so far as subsumed within the Rules has been exhausted”, the UT concluded that the FTT’s immediate progression to the second question was not adverse to the applicants. That, Mr Byrne submitted, was also wrong; “reasonable” in Rule 276ADE (1) (iv) had nothing to do with Wednesbury reasonableness.

[15]      The point of principle, according to Mr Byrne was the UT’s endorsement of the FTT’s approach on a case where both the new rules and article 8 were engaged.  He understood that Mr Gill, on behalf of the respondent, intended to submit that the issue had already been decided in Mehmood Ahmed and Ors v Secretary of State for the Home Department, a decision of the UT dated 16 March 2015.  However, this was not authoritative. It was not a starred decision.  It was not a country guidance case.  It was not included on the relevant website.  In any event that decision, at paragraphs 379 to 385, was discussing looking at the rules to inform the proportionality assessment.  It did not address the issue in the present case.

The respondent
[16]      Mr Gill, on behalf of the respondent, moved the court to refuse permission.  He adopted his note of argument.  There had been no error of law giving rise to an appeal which raised a point of principle which had strong prospects of success.  This case was all about proportionality and the taking of a holistic approach, with reasonableness being considered in the context of the family unit:  cf Zoumbas v Secretary of State for the Home Department 2014 SC (UKSC) 75.  An important point of principle meant something of general importance, which had not yet been established and not simply something of importance to the parties. Strong prospect of success was important:  Halit Genc v Secretary of State for the Home Department [2015] CSOH 11 at paragraph 13, following EP v Secretary of State for the Home Department [2014] CSIH 30 at paragraph  26;  Uphill v BRB (Residuary) Ltd [2005] 1 WLR 2070.  The terms of Rule 276ADE (1) (iv) are clear;  they raise two questions of fact for resolution in the particular case.  Here it had not been put to the FTT that the reasonability of expecting the third applicant to remove from the UK was to be considered separately from her family circumstances.  Its decision and the decision of the UT therefore cannot have involved the making of an error of law which the applicants can now raise: cf SB v Secretary of State for the Home Department [2013] SCIH 89.  Mr Gill accepted that the Immigration Rules were capable of conferring rights but, he submitted, Rule 276ADE was not a rights conferring instrument. It was all about article 8 and thus “reasonable” where it appeared in Rule 276ADE (1) (iv) was directed at an assessment of the proportionality of removal: cf Mehmood Ahmed and Ors v Secretary of State for the Home Department supra addendum paragraphs 13, 14, 18, 19, 25, 26 and 42.

Decision
[17]      I accept that what is under consideration here are four separate, albeit connected, applications.  That has the result that if the third applicant should succeed in her application for permission to appeal, then permission must be granted for all applicants.

[18]      I further accept that in any particular case such entitlement as an individual may have in terms of the Immigration Rules to be granted leave to remain will not necessarily be co-extensive with the protection conferred on that same individual by article 8 of the Convention.  That therefore must be reflected in the decision-making process.  However, it does not follow that a decision that does not expressly articulate a two-stage procedure such as was commended in Izuazu will necessarily give rise to an error in law.  That is particularly so when the case involves the inter-relating and indeed inter-dependent claims of a number of family members.  Here the FTT noticed the potential significance of Rule 276ADE (1) (iv) and recorded a consensus between the parties’ representatives that none of the applicants met the requirements of the rules, save for the third applicant having lived continuously for at least seven years (determination paragraph 13).  I observe at this point that the applicants were represented before the FTT by experienced counsel who is recorded at paragraph 14 as submitting that “the article 8 test” must be met independent of “what the new rules say”.  The FTT judge agrees and goes on to identify the private life of the applicants, as opposed to their family life, as requiring attention.  That is because, given their circumstances and in particular the age of the children, irrespective of where they might live they will be living together as a family.  At paragraph 15 the FTT judge states that the best interests of the children must always be considered within that family unit.  Thus, guided by the applicants’ counsel, the FTT judge recognises the potential significance of the new rules, understands that failure to qualify under the new rules is not determinative, focuses on the best interests of the children, appreciates that as a matter of fact the applicants will remain together as a family unit and that their claims are therefore inter-dependent, and then turns to consider whether their removal, as a family unit, from the UK is disproportionate having regard to their rights under article 8.  I accept, as Mr Byrne submitted, that in any sort of legal analysis it is individuals who have rights and interests, not family units, and that in the particular instance of Rule 276ADE (1) (iv) that can be demonstrated from a construction of the text. However, the precise content and consequences of a right have to be expiscated from the facts and circumstances of the particular case.  Independent of the contribution of the applicants’ counsel, I see no error in the approach of the FTT judge up to and including paragraph 15 of his determination but that conclusion is reinforced by the fact that the FTT judge was following the course indicated to him by counsel.  What follows, in paragraphs 16 to 37 of the determination, is a consideration of the respective positions of the applicants in relation to their claims not to have their private lives interfered with.  That includes a consideration of the position of the third applicant under reference to findings that suggest that the degree of disruption to her private life will be limited and certainly rather less than had been suggested by the first applicant in his evidence.  Again, I can detect no error of law.  As Mr Gill pointed out, the process of evaluation of the evidence adopted by the FTT judge and the outcome of that evaluation were not very different from that adopted and approved by the UK Supreme Court in Zoumbas (supra at paragraphs 24 and 25).

[19]      Permission to appeal to the UT was nevertheless granted on the basis that the FTT judge had made no finding on the reasonableness of expecting the third applicant to remove from the UK.  If it were not reasonable then the third applicant could found on Rule 276ADE (1) (iv) as giving rise to an entitlement to remain and that entitlement would impact on the position of the other applicants. Mr Byrne maintained that position when arguing for permission to appeal; the failure on the part of the FTT to adopt a two-stage approach had led it into the error of conflating the different concepts of reasonable for the purposes of Rule 276ADE (1) (iv) and proportionate for the purposes of article 8.  Again, I understand the point as a matter of formal legal analysis.  However, agreeing with the UT (determination paragraph 15) any error on the part of the FTT (and, as I have set out above, I am not persuaded that there was an error) was one of form only and not of substance.  The same UT judge as determined the appeal from the FTT refused the application to appeal to this court.  In his decision on the application for permission he reinforced the conclusion reached in his determination by stating that the reasonability of the departure of the third applicant from the UK could not realistically be distinguished from the question of the overall reasonableness and proportionality of departure of the family unit.  The distinction proposed, the UT judge continued, rather than raising an important point of principle or practice is plainly artificial and unworkable. I recognise that, as a matter of language and of law, what is “reasonable” is not necessarily the same as what is “proportionate”.  Nevertheless, the meanings are close and in particular factual contexts they may be indistinguishable. Mr Gill drew my attention to the determination and reasons of the UT (as constituted by UT Judges Jordan and O’Connor) in Mehmood Ahmed and Ors v Secretary of State for the Home Department.  At paragraphs 13 and 14 of the addendum to that determination there is this:

“13. ...when contrasting Rule 276ADE (1) (iv) and (v) the fact that it is only (iv) that contains a consideration of whether it is reasonable to expect the individual to leave the United Kingdom does not materially strengthen or weaken the respective claims of those who fall within this category since the distinction is not determinative and claimants in both categories are protected by the proportionality exercise that has to be conducted on their behalves.

14. Our finding that the decision to remove an individual is proportionate in all the circumstances (including the parents’ conduct) prevents the Tribunal also finding that it is unreasonable to remove that individual in consideration of the same circumstances (including the parents’ conduct). Proportionality and reasonableness must, for all practical purposes, go hand-in-hand in any rational assessment of the same set of circumstances when considered ‘in the round’. Furthermore, if there is a distinction, it is proportionality that trumps all else because of the over-arching place of article 8 in the hierarchy.”

[20]      Mr Byrne emphasised that decisions such as Mehmood Ahmed are not accorded authoritative effect within the tribunal system.  That may be.  Nevertheless it appears to me that what appears in the cited passage is applicable to the present case.  It follows that I agree with the observations of the UT judge when refusing permission in the present case.  The third applicant is eleven years old. She lives with her immediate family.  There is no suggestion that she will not continue to do so or that it is not in her best interests to do so.  It having been decided that it is proportionate in all the circumstances that she and the rest of her immediate family be required together to remove from the UK it simply cannot be said that it is not reasonable to require her to remove.

[21]      I accept that the passage in Macdonald appears to have been misunderstood by the UT judge; it does not support the point he sought to take from it. However, that does not vitiate his conclusion.

[22]      In my opinion neither the FTT nor the UT erred in relation to the applicants’ appeals in any way that was material.  If there was any error on the part of the FTT it was, as the UT judge put it, a matter of form rather than substance.  There is no question of the proposed appeal having strong prospects of success.  I therefore need not consider whether this is a case which raises an important point of principle.  If I had to answer that question I would answer it in the negative.  It is established that the new rules do not necessarily exhaust the issue as to whether removal from the UK constitutes a disproportionate interference with private and family life such as to amount to contravention of article 8 of the Convention.  The respective positions of individual family members are separate but inter‑related and, where one is a young child with no alternative carer, inter‑dependent.  An individual might fail to secure a right to remain under reference to the rules but might nevertheless succeed under reference to article 8 and a decision-maker must be alive to that possibility.  For Scotland the law is as set out in MS and the structure of the decision-making process is spelled out in Izuazu.  Beyond that everything will depend on the facts of the particular case and that includes the precise way in which a decision-maker approaches his decision-making.  No question of principle arises.

[23]      I shall refuse permission to appeal.  I continue all questions of and relating to expenses.