Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 72

P1312/13

Lord Eassie

Lady Paton

Lady Smith

OPINION OF LORD EASSIE

in the petition

by

SHAHZAD BUTT

Petitioner and Reclaimer;

 

for Judicial Review of a decision of The Secretary of State for the Home Department dated 2 July 2013

Respondent:

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

Respondent:  Webster;  Office of the Advocate General for Scotland

30 September 2015

[1]        In her opinion Lady Smith sets out fully the facts upon which this petition for judicial review proceeds, including the lengthy immigration history of the petitioner and reclaimer, and the material passages in the decision taken on behalf of the Secretary of State for the Home Department, represented in these proceedings by the Advocate General for Scotland.  I think it unnecessary for me to rehearse at any length what is thus narrated in her opinion.

[2]        In short summary, the decision challenged in the petition is a refusal by the Secretary of State to grant to the petitioner, who is a citizen of the Republic of Pakistan, leave to remain in the United Kingdom by reason of his marriage in June 2004 to a British citizen.  At the time of the petitioner’s marriage, his application for asylum had been refused and the refusal had been upheld on appeal.  A subsequent claim based on the contention that to return him to Pakistan would constitute a breach of articles 3 and 8 of the European Convention on Human Rights and Fundamental Freedoms – “ECHR” – was also refused on 12 August 2002.  His immigration status at the time of the marriage was thus, in the terminology of the English language versions of the judgments of the European Court of Human Rights, precarious.

[3]        After he was married the petitioner made a number of unsuccessful applications for leave to remain in the United Kingdom upon the ground of his marriage to a British citizen.  The last of these was made on 6 July 2012.  Its processing was delayed by the amendment to the Secretary of State’s published policy in the form of the Immigration Rules to which the Lord Ordinary refers.  It was refused on 27 March 2013 primarily on the basis that the petitioner’s circumstances did not meet the specific requirements of the policy laid down in the amended Immigration Rules.  Those acting for the petitioner thereafter, by letter dated 11 June 2013, challenged that refusal on the ground that the decision taker had not gone through the necessary process of considering whether nonetheless refusing the petitioner leave to remain in the United Kingdom with his British wife would constitute a breach by the United Kingdom of its obligation under article 8 ECHR to respect the right to family and private life.  The decision issued on 2 July 2013, which is the decision challenged in this petition, is thus essentially directed to the omission from the decision of 27 March 2013 to consider article 8 outwith the Immigration Rules.

[4]        In my view it is important to note that the issue whether refusing leave for the petitioner to remain in the United Kingdom would infringe article 8 had been raised in several earlier applications.  In two of them the matter of whether refusal of leave to remain would result in an infringement of article 8 had been adjudicated before an immigration judge.  Of perhaps greater note is the second of those applications made on 29 October 2007 which was refused by the Secretary of State on 27 October 2008 and was then the subject of an appeal to the Immigration and Asylum Tribunal.  That appeal was refused on 5 February 2009.  At the hearing of that appeal the position not only of the appellant but also his wife was examined.  Both gave oral evidence to the Immigration Judge, as did Mrs Butt’s sister. While Mrs Butt has lived for all of her life in the UK, she is Muslim;  she was learning Urdu;  her stated reservations about living in Pakistan were a fear of terrorist bombings and a desire to maintain contact with her sister.  The Immigration Judge found that the former reservation was not objectively justified, there being no enhanced risk to British Muslims, and, as regards the latter, that there were no special circumstances pertaining to her relationship with her sister.  The inquiry before the Immigration Judge therefore did consider the consequences for the petitioner’s wife of requiring the petitioner to return to Pakistan.  Review of the decision by the High Court in England and Wales was refused.  A further application for leave to revisit the question by judicial review in England and Wales was rejected, essentially on the ground that the matter had already been adjudicated and nothing new was offered.

[5]        Against that background, when faced with the contention that the letter of 27 March 2013 did not address the position, outwith the Immigration Rules, of the petitioner’s right to private and family life under article 8 ECHR, the decision taker understandably and rightly formed the view that the contention amounted to the making of a “fresh claim” in respect of a matter already decided.  The further invocation of article 8 should thus be judged in light of paragraph 353 of the Immigration Rules and the jurisprudence on the interpretation and application of that paragraph to fresh claims.  The letter makes that plain in the paragraphs immediately following the narration on page 2 of the immigration history.  Although subsequent parts of the decision letter – which include unnecessary, lengthy quotations from cases – might obscure that such was the issue, the author returns to the matter in expressing the view that there was no reasonable prospect of another immigration judge reaching a different conclusion.

[6]        When, as I think it should be, the decision is analysed as being a decision on a fresh claim I consider that it is not open to successful challenge.  The petitioner’s contention that leave to remain in the United Kingdom should be granted since its refusal would constitute a breach of article 8 ECHR had been examined in the earlier tribunal proceedings, which had considered the position of the petitioner’s spouse and whether it would be unreasonable for her to go with him to Pakistan.  On the particular facts of their relationship and family situation, it had been held that it would not be so.  Requiring the petitioner to leave the United Kingdom was proportionate.  At the time of the decision now under challenge, the factual situation had not altered.  Apart from the obviously erroneous assertion that there were interests of children to be considered, the application made on 6 July 2012 did not disclose any material change in the spouses’ circumstances and the later letter of 11 June 2013 questioning the decision of 27 March 2013 – essentially on the ground that the decision only examined the petitioner’s position in light of the amended Immigration Rules - offered nothing new by way of fact, particularly any material which could affect the assessment of proportionality previously carried out by the immigration judges.

[7]        The letter from the petitioner’s solicitors of 11 June 2013 also stated by way of criticism of the decision of 27 March 2013 that the author of the decision had applied the “incorrect criterion” of the absence of “insurmountable obstacles”.  Since the consideration given by the author of that decision letter was confined to examining whether the petitioner might meet the exacting requirements of the amended Immigration Rules, which do indeed apply that criterion, the criticism may thus seem misplaced, unless, on a charitable reading of the solicitor’s letter, it was intended in anticipation of the requested examination outwith the Immigration Rules. As I endeavoured to explain in delivering the opinion of the court in Mirza v Secretary of State for the Home Department [2015] CSIH 28, a finding that there are insurmountable obstacles to the spouses’ continuing cohabitation in another country is not a necessary condition to a finding that a decision requiring that the immigrant spouse leave the territory is disproportionate.  The nature of any obstacles to the maintenance of matrimonial life in the country of the applicant spouse and the degree or ease with which they are surmountable is simply part of the overall assessment of the proportionality of the interference by the state in the private and family life of the spouses concerned.

[8]        The decision letter of 2 July 2013 includes as part of its consideration of whether the petitioner meets the test for the legitimate advancement of a fresh claim an, albeit relatively restricted, re-examination of the merits.  Given that and the other features of the letter which with hindsight may have not been best framed, I think that the discussion before us respecting whether that examination was defective and lacking in adequate reasoning may have proceeded without proper appreciation of the importance of the fact that the article 8 contentions had previously been conclusively adjudicated and that one was properly in the realm of a fresh claim.

[9]        In these circumstances I agree with Lady Smith and Lady Paton that this reclaiming motion should be refused.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 72

P1312/13

Lord Eassie

Lady Paton

Lady Smith

 

OPINION OF LADY PATON

in the petition

by

SHAHZAD BUTT

Petitioner and Reclaimer;

 

for Judicial Review of a decision of The Secretary of State for the Home Department dated 2 July 2013

Respondent:

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

Respondent:  Webster;  Office of the Advocate General for Scotland

30 September 2015

[10]      For the reasons given by Lord Eassie and Lady Smith, I agree that this reclaiming motion must be refused.

 

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 72

P1312/13

Lord Eassie

Lady Paton

Lady Smith

 

OPINION OF LADY SMITH

in the petition

by

SHAHZAD BUTT

Petitioner and Reclaimer;

 

for Judicial Review of a decision of The Secretary of State for the Home Department dated 2 July 2013

Respondent:

 

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

Respondent:  Webster;  Office of the Advocate General for Scotland

30 September 2015

Introduction
[11]      The petitioner is a national of Pakistan.  He entered the UK on 14 August 2000 and has been in the country illegally ever since then.  This reclaiming motion concerns the respondent’s refusal to grant him leave to remain in the UK, in a decision dated 2 July 2013.  The question for the respondent was whether or not to grant to the petitioner, a foreign national - in response to his submissions under article 8 ECHR - permission to reside in the UK in order that he and his British wife could continue to pursue their married life here and, if not, whether or not his submissions amounted to a “fresh claim” under rule 353 of the Immigration Rules (HC 194).

[12]      The petitioner presented a petition for judicial review of that decision.  By interlocutor of 11 September 2014, the Lord Ordinary, having heard submissions at a first hearing, dismissed the petition. The petitioner now reclaims.

 

The petitioner’s immigration history
[13]      The petitioner’s immigration history was detailed in the respondent’s decision letter of 2 July 2013. It is characterised by repeated unsuccessful applications for asylum and/or leave to remain throughout the time since his arrival in the UK.  In particular, he had, prior to the present application, made nine applications to the respondent, one to an adjudicator (in 2002), two to Asylum and Immigration Tribunals (in 2006 and 2009) and three to the High Court of England and Wales. In response to the last of those, an application for permission to apply for judicial review, Holman J, on 22 October 2010, stated:

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

 

His applications have been based on article 8 ECHR since 24 June 2002 and, since 25 February 2005, they have included reliance on his having married a British citizen.  The petitioner has twice been served with notice of liability to remove – on 18 February 2001 and on 6 April 2006.  He was, towards the end of 2010, detained at Colnbrook Immigration Removal Centre, in England.

[14]      The petitioner’s appeal to the Adjudicator was in relation to a claim for asylum.  His account of persecution was not believed.  The Adjudicator concluded that his stated fear was manifestly unfounded and that his article 3 rights were not engaged; his appeal was dismissed.  His first appeal to the Asylum and Immigration Tribunal was heard on 19 May 2006, before Immigration Judge Wood.  His second appeal to the Asylum and Immigration Tribunal was heard on 22 January 2009, before Immigration Judge Corke. Both appeals, were founded on article  8, relying on his marriage to a British citizen.  Both appeals were dismissed, each judge concluding that the petitioner’s removal from the UK would not be disproportionate.

[15]      The petitioner’s appeals were based on his being married to his British wife, their being settled in Glasgow and on his wife having a good relationship with her sister.  Her sister was not a dependent. His wife gave evidence that she did not want to leave her sister and also claimed, before Immigration Judge Wood, that her husband would be at risk; that is, she sought to rely on what had been advanced but disbelieved in his earlier asylum claim. She did not subsequently pursue that line. Before Immigration Judge Corke, she said that she could not go to Pakistan because of “suicide bombings and terrorists”.  Immigration Judge Corke found that there was no objective foundation for that subjective fear and his finding on that matter has not been challenged.  Likewise, he found that there was no objective evidence that British Muslims are at any enhanced risk in Pakistan; that finding has not been challenged either. 

[16]      It was not Mrs Butt’s position before either tribunal that she would not go to Pakistan; her approach was that, for the reasons she gave – her sister, her settled life in the UK and her subjective fears - she did not want to go.  Immigration Judge Wood approached the proportionality exercise on the basis that if she chose not to accompany her husband to Pakistan, whilst that would constitute an interference with family, removal of the petitioner would, in the circumstances nonetheless be proportionate.  In so doing, he had regard to the possibility of the spouses being separated. Immigration Judge Corke approached the exercise on the basis that Mrs Butt could live in Pakistan, her subjective fears being unfounded and whilst he recognised her wish to remain in the UK because her sister is here, that was outweighed by her having chosen to marry the petitioner in full knowledge of his precarious status and her ability to maintain contact with her sister by post, telephone and visits.  Having heard evidence from the petitioner, Mrs Butt and, in the case of Immigration Judge Corke, Mrs Butt’s sister, neither immigration judge identified any good reason why Mrs Butt should not follow her husband to Pakistan.  Put shortly, when considered by two separate tribunal judges, independently of each other and independently of the respondent (Tribunals, Courts and Enforcement Act 2007 section 1) the answer to the petitioner’s article 8 claim based on having married a British citizen was, on both occasions, that it was not disproportionate to refuse him the permission which he sought.  He had legal representation on each occasion – by two different solicitors.

 

Background
[17]      The petitioner has lived in England and in Glasgow since arriving in the UK.  He brought a son with him but that child was taken into care after having been assaulted by the petitioner and, by 2006, contact between them had ceased, as explained in the findings of fact made by both Immigration Judges (see paragraph 7 of Immigration Judge Wood’s reasons of paragraph 14 of Immigration Judge Corke’s reasons).

[18]      The petitioner’s wife originally comes from Huddersfield.  They married in Glasgow on 16 June 2004; their relationship and their marriage was formed when the petitioner’s presence in the country was illegal and thus in circumstances of known precariousness of the type referred to in the Strasbourg case law referred to in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) at paragraphs [38] – [41] and as more recently discussed by the Grand Chamber in Jeunesse v Netherlands (2015) 60 EHRR 17 at paragraph 108:

“Another important consideration is 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. It is the Court’s well-established case-law that, where this is the case, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of art. 8.”

 

Those observations were made under reference to seven earlier decisions of the court: Abdulaziz v United Kingdom (1985) 7 EHRR 471 at [68];  Mitchell v United Kingdom (40447/98) 24 November 1998;  Ajayi v United Kingdom (27663/95) 22 June 1999;  M v United Kingdom (25087/06) 24 June 2008;  Da Silva (2007) 44 EHRR 34 at [39];  Arvelo Aponte (28770/05) 3 November 2011 at [57] – [58];  and Butt  (47017/09) 4 December 2012 at [78].   Although it is fair to say that the Grand Chamber do not suggest that there is a distinct and separate test of ‘exceptional circumstances’ which such an applicant must meet, it was, in that case, only because they were satisfied that the circumstances of the applicant’s case were exceptional that they found in her favour (see paragraph 122).  It is, perhaps, inevitable that any circumstance which is sufficiently weighty to tip the proportionality balance in favour of such an applicant will be exceptional in character.

[19]      The petitioner’s wife is a convert to Islam.  At the time of the hearing before Immigration Judge Corke, six years ago, she was learning Urdu.

[20]      The petitioner’s wife had six children before commencing her relationship with the petitioner.  They were all adopted and live in England.  She has no contact with them.  A child was born to the petitioner’s wife on 2 July 2005 but, as explained by Immigration Judge Corke, he was accommodated at birth by the social work department and has since been adopted.  There is no direct contact between the child and the petitioner or Mrs Butt.  Post adoption contact is restricted to “letter box” contact which consists of an annual exchange of written information between adoptive parents and birth parents.

[21]      At the appeal before Immigration Judge Wood, the petitioner and his wife gave accounts in relation to the children which were incorrect.  The petitioner’s initial position before Immigration Judge Wood was that his wife was a perfect mother to his son and to the child of their marriage.  Whilst it was accepted in cross examination that the petitioner’s son was, in fact, in foster care and the petitioner had lost contact with him, the position regarding the child of their marriage was not corrected by him or by his wife at any time during their evidence.  They continued to give Immigration Judge Wood the erroneous impression that their child was living with them. 

[22]      At the hearing before Immigration Judge Corke, the petitioner’s claim under reference to article 8 was no longer based on him or his wife having active parent/child relationships in the UK.  No evidence was led about the seven children referred to other than that the petitioner’s wife hoped she might be able to get in touch with her first six children at some date in the future and that she hoped that the child of her marriage to the petitioner would find them when he was 16 years old.  There was no evidential basis on which Immigration Judge Corke could have approached matters on the basis that the welfare of any child was relevant to the petitioner’s appeal and he did not do so.  

 

The current application
[23]      The respondent’s decision of 2 July 2013 which is  under challenge in this process flows from the petitioner’s application for leave to remain in a letter from his solicitor – a different solicitor from those who had represented him before the tribunals - dated 6 July 2012.  The application was made under reference to the relevant immigration rules and also under reference to article 8.  The statements made in that letter in support of the latter were, essentially, that the petitioner had a wife and children settled in the UK, that they had an established way of life in the UK and that they would find it difficult to re-adjust to life in Pakistan.  The letter emphasised that the respondent ought to consider their children’s interests and welfare.  However, it remained and remains the case that the petitioner and his wife had and have no children living with them and no subsisting relationships with their children beyond the letterbox contact referred to above.  It appears, accordingly, that there was no basis for the reliance on the welfare of children in the letter of 6 July 2012 and the re-emergence of those submissions has not been explained.

[24]      The respondent refused that application by decision dated 27 March 2013.  In that letter, the petitioner’s application was considered only under reference to the Immigration Rules and refused because it did not meet their requirements.  That decision was challenged on behalf of the petitioner by a letter from new solicitors, Gray & Co, dated 11 June 2013, in which they stated:

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

 

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

 

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

 

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

 

As noted we are seeking the reduction of the UKBA’s decision refusing our client further leave to remain…”

 

Accordingly, the petitioner’s position as at 11 June 2013 seems to have been as follows.  He continued to rely on the material advanced in support of his claim in the application of 6 July 2012 insofar as his article 8 claim was based on his being married to a British citizen, on their having a settled life in the UK, and on their position being that they would find it difficult to adjust to life in Pakistan.  Although the letter of 6 July 2012 is silent as regards any facts relating only to his wife – other than that she is a British citizen – putting matters at their highest for the petitioner’s wife, it can be observed that the respondent had already been made aware, by means of the immigration judges’ findings in fact, that she wanted to stay in the UK because she was settled here, because of her relationship with her sister, because, as a generality, she considered she would find it difficult to adjust to life in Pakistan and also because of her subjective (though unfounded) fear that she would be at risk of suicide bombings and terrorists.  Beyond that there was, however, no specific hardship or circumstance relied on whether before the tribunals or in the letters of 6 July 2012 and 11 June 2013 and no case was advanced that she could not go or, indeed, that she would in fact choose to stay in the UK.  So far as any reliance on the interests of children was concerned, neither the petitioner nor Mrs Butt could reasonably have expected the respondent to take them into account since there were none of any relevance to her considerations, as established in the hearing before Immigration Judge Corke.

[25]      Then, as explained in the letter of 11 June 2013, the petitioner was challenging the respondent’s refusal to grant him leave to remain (a) because she had not assessed the application of article 8 to his claim other than within the relevant immigration rules, (b) because she had wrongly treated the absence of insurmountable obstacles to him and his wife living in Pakistan as a criterion, and (c) because she had failed to have regard to the petitioner’s wife’s rights as an EU national as explained in the case of Dereci.

[26]      It is, I consider, important to note that the letter of 11 June did not introduce any new factual material into the petitioner’s claim;  it did not, for example, refer to there being any new evidence which was said to demonstrate some particular hardship which would arise were the petitioner’s application to be refused.  That being so, the basis for his article 8 case, including its reliance on the family life between him and his wife, remained as it was before, albeit that he could not reasonably have expected the respondent to take account of the interests of any children, as discussed above. 

 

The “new” Immigration Rules (HC194), “insurmountable obstacles”, and weighing proportionality
[27]      I refer to paragraphs [2] to [7] of the opinion of the court in Ashiq v Secretary of State for the Home Department [2015] CSIH 31, for a discussion of the background to and application of HC 194.  Appendix FM to those rules addresses those rights which are protected by article 8 and contains provisions relevant to persons seeking to enter or remain in the UK on the basis of there being family life between them and a British citizen.  The respondent, at GEN.1.1, expressly recognises her obligation to the parties to such relationships to respect family life arising from them.  The rules then explain what will be her approach to striking the balance between the rights to respect for family life and the legitimate aims of the state of protecting national security, public safety, and the economic well‑being of the country.

[28]      I accept, as submitted by counsel for the respondent, that the rules have woven within them regard not only to the article 8 rights of an applicant but also to those of an applicant’s spouse.  In an application such as the petitioner’s, the basic rule is that, where the applicant’s partner is a British citizen who is present and settled in the UK and their relationship is genuine and subsisting, to qualify for leave to remain, the applicant must not be in the UK in breach of immigration laws unless paragraph EX.1 applies (E‑LTRP.1.2). EX.1 states:

“This paragraph applies if

…

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

 

An applicant would, accordingly, qualify under EX.1 if a circumstance particular to his wife were such as to present an insurmountable obstacle to relocation to his country of origin even if there was no such obstacle relating to his own circumstances.  He will not qualify under the rules if there are no insurmountable obstacles in relation to either of them but that is not an end of the matter because, as discussed in MS v Secretary of State for the Home Department [2013] CSIH 52 at paragraphs 7 and 30, in Ashiq in the section already referred to and by the Lord Ordinary in the present case, the respondent has a duty to consider whether or not an applicant should be granted leave to remain outwith the rules and, when considering whether refusal of the application would be proportionate, the absence of insurmountable obstacles to the applicant’s return and the relocation of his spouse is not determinative. It is, nonetheless, a material factor which the respondent can quite properly take into account in her considerations:  Rodrigues da Silva and Hoogkamer v Netherlands (2007) 44 EHRR 34 at paragraph 39, Nagre at paragraphs [41] and [47], and Jeunesse v Netherlands at paragraph [107].  It is material to the extent that, as is evident from discussions by the court in Strasbourg, likelihood of hardship need not, of itself, be an insurmountable obstacle nor render removal disproportionate: see e.g. Jeunesse at paragraph 117.

[29]      Turning to proportionality, I would make the following general observations, drawn from the authorities to which I have already referred.  When weighing the circumstances of the particular case in the proportionality exercise, the respondent must have regard to any family life arising from the applicant having a genuine and established relationship, including marriage.  That said, the convention does not guarantee foreign nationals any right to enter or reside in a particular country, does not prevent states from formulating and applying a strict immigration policy and does not impose any general obligation on states to uphold a married couple’s choice of country for their matrimonial residence.  In this area of interface between immigration and family law, states are afforded a margin of appreciation regarding family life created at a time when an applicant’s presence in the country is illegal.  Further, the outcome of the proportionality exercise in each individual case is bound to turn very much on its own particular facts and circumstances as placed before the decision maker by the applicant.

[30]      I note that the provisions of section 117A and 117B of the Nationality, Immigration and Asylum Act 2002 as inserted by the Immigration Act 2014 section 19 address the approach that the respondent now requires to take when carrying out the proportionality assessment, for article 8 purposes.  In particular, section 117B(4) provides:

“Little weight should be given to -

(a)  a private life, or

(b)  a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.”

 

I accept, as was submitted by counsel for the respondent, that those provisions demonstrate that, as from the date they came into force, Parliament was satisfied that it was appropriate that, in the proportionality exercise, little weight should be given to the interests of either party in a relationship formed in such circumstances.  They were not, however, in force at the time of the decision that is challenged in this case.  Counsel for the respondent urged the court to have regard to these provisions nonetheless because, he submitted, they illustrate part of the background to the policy structures in the UK.  As a broad generality that may be correct but, for my part, whilst I am satisfied that they indicate what was the underlying policy when the 2014 Act was passed, without more, I do not consider I could properly conclude that they are evidence of policy as at 2 July 2013. 

[31]      That said, I can see that the provisions are certainly in line with the approach to the proportionality assessment adopted not only by the respondent at that time but also, prior to that, by the immigration judges in 2006 and 2009, and in the authorities referred to by the Grand Chamber at paragraph 108 of  Jeunesse ( see above).  That is, that little weight requires to be given to the fact of marriage to a British citizen where entered into in circumstances such as in the present case.

[32]      Accordingly, it was, at the time of the present application, open to the respondent to accord little weight to an applicant’s relationship with his wife whether looking at matters from the point of view of his interests or from hers, if there was a proper basis for her to do so.  It is plain from the authorities to which I have already referred that that was a legitimate approach if the facts of the case supported it and that the respondent would not be required or expected to give significant weight to such a relationship where it was formed at a time when – as in the present case – the ability to pursue family life in the UK was, from the outset, precarious; they could, at that time, have had no legitimate expectation of the petitioner being granted permanent residence in the UK.  

 

The respondent’s decision letter of 2 July 2013
[33]      Rule 353 of the Immigration Rules applied, since the respondent – appropriately in my view - treated the letter of 11 June 2013 as a fresh application under article 8.  She required, accordingly, to consider whether the letter amounted to new submissions which were significantly different and that, in turn, required her to determine whether the content:

“(a) had not already been considered; and

(b) taken together with the previously considered material created a realistic prospect of success notwithstanding its rejection.”

 

The letter of 11 June 2013 had called for response to three matters which, according to the petitioner, had not previously been considered namely, the respondent’s obligation to consider the article 8 application outwith the rules, the relevance of the absence of insurmountable obstacles, and the respondent’s alleged error in failing to have regard to the petitioner’s wife’s status as an EU national. 

[34]      As noted above, the letter did not refer to any new factual or other evidential material.  The “new” material that the respondent had to consider did not relate to the factual circumstances on which the petitioner’s and his wife’s article 8 claims were based – i.e. the petitioner having married a British citizen, their having a settled life in the UK together, and his wife not wanting to go to Pakistan for the reasons explained to the tribunals.  The new material was, rather, three legal submissions regarding the way in which the respondent required to carry out the article 8 assessment.

 

Absence of insurmountable obstacles
[35]      A significant part of the letter was taken up in responding to this part of the tripartite challenge in the 11 June letter.  Before the Lord Ordinary, the focus was on this matter.  The central submission for the petitioner was that the respondent had treated the absence of insurmountable obstacles as determinative.  The Lord Ordinary was not persuaded that she had done so; when the relevant parts of the letter of 2 July 2013 were read in context – particularly the context of meeting a challenge that reliance on the absence of insurmountable obstacles is “an” incorrect criterion – it was not to be concluded that the respondent had erroneously treated the absence of insurmountable obstacles as determinative.  I agree with the Lord Ordinary and note that the discrete issue regarding the treatment by the respondent of the absence of insurmountable obstacles was not pursued as a separate ground of appeal in this reclaiming motion.

 

The “Dereci” point
[36]      The letter of 2 July 2013 also responded to this challenge – in detail - at page 7;  the case of Dereci did not extend the rights of a family member of an EU citizen who has never exercised their right of free movement within the EU.  That response is, as a matter of law, correct: see Dereci, at paragraphs 52 – 57.  That meant that the status of the petitioner’s wife as an EU national was irrelevant and the respondent was not bound to have regard to it.  Although one of the petitioner’s grounds of appeal sought to suggest otherwise, it was, in the event, wisely departed from by senior counsel in the course of the hearing of the reclaiming motion.

 

Article 8 and “the general proportionality of the decision”
[37]      In his petition, the petitioner avers that “there are unjustifiably harsh circumstances for the petitioner’s spouse in having to relocate to a country where she has no ties, no family and where she is expected to leave the UK where she has lived all her life” (statement 10), the import of which appears to be that, when taken together with the fact that she was a British and EU national, it showed that, for the purposes of rule 353, there was a realistic prospect of success of the petitioner being successful before an immigration judge.

[38]      The letter of 2 July 2013 also addressed this part of the challenge in the 11 June letter.  It concludes, at page 7, that it would not be unjustifiably harsh to refuse the petitioner’s application nor would it be unreasonable to do so and that, in these circumstances, there were no realistic prospects of an immigration judge deciding otherwise.  Before the Lord Ordinary, it was contended for the petitioner that the respondent had not given proper consideration to all the relevant factors.  That submission was repeated and elaborated upon in the course of the reclaiming motion where the principal contention was that the letter failed to provide an adequate explanation of why the respondent concluded that proportionality weighed against the petitioner and why there were no realistic prospects of an immigration judge concluding otherwise.  Reliance was placed on the status of the petitioner’s wife as a British national, the length of time she had lived in the UK, her lack of ties to Pakistan and the language difficulties that she would encounter, that she would be losing her accommodation in the UK and that there was no evidence to show that she would obtain entry clearance to Pakistan.

[39]      I note that, apart from reliance on his wife’s status as a British national and her reluctance to relocate to Pakistan, none of those details formed part of the case presented to either immigration judge or in the letter of 11 June 2013 and I do not, in those circumstances, accept that the respondent can be criticised for failing to have regard to them.  In any event, as noted above, Immigration Judge Corke made a finding in fact that the petitioner’s wife was learning Urdu at that time and there was no evidence put before the respondent to indicate that there was any alteration in that state of affairs.  Also, he refers to  evidence that the petitioner’s wife’s six children had been born of an earlier marriage to another Pakistani Muslim which might call into question the assertion that she has no ties at all with Pakistan.  As regards the reference to the lack of evidence about entry clearance, I accept that, as was submitted on behalf of the respondent, the onus was on the petitioner to show that there would be a problem in that regard, not for the respondent to show that there would be no difficulty.  Far from showing that there would be such a problem, neither the petitioner nor his wife even suggested that one would arise whether in their tribunal evidence or, via the petitioner’s solicitor, in the letter of 11 June.

[40]      As counsel for the respondent observed, this was, essentially, a “reasons” challenge.  The contention for the respondent was that it was evident from reading the letter as a whole that the respondent had had regard to all the material factors including the article 8 rights of the petitioner’s spouse.  The Lord Ordinary was correct to have been satisfied about that and correct to find that, in the circumstances, the respondent was entitled to conclude that the legitimate aim of immigration control outweighed the case under article 8.

 

Discussion and decision
[41]      The letter of 2 July 2013 is, I accept, not a model of clarity and, when dealing with the “insurmountable obstacles” point, it contains a quotation from the case of Nagre that is, distractingly, longer than was required for the point being made about the relevance of the absence of insurmountable obstacles.  However, the letter requires, I consider, to be read in the context of the factual basis for reliance on the article 8 rights of the petitioner and his wife having been considered, independently, by two immigration judges who heard evidence, at two separate hearings in 2006 and 2009, of no new material – factual or otherwise - having been placed before the High Court of England and Wales in support of the petitioner’s subsequent application for permission to apply for judicial review in 2010 and of no new factual material having been placed before the respondent either in the letter of 6 July 2012 or in the letter of 11 June 2013.  That is a context of which the petitioner and his wife can be taken to be aware and is also a context of which the respondent was clearly aware.  It entitled her, in my view, to adopt a more concise style than could reasonably have been expected of her if, for instance, this had been her first consideration of the facts and circumstances surrounding the petitioner’s application under article 8.  It entitled her, in my view, to use short references to, for instance, the findings of the tribunal judges rather than set them all out at length and, moreover, given that no new facts were being asserted, rely on those findings.

[42]      When the letter is considered in that context, I am satisfied that, on a fair reading, it is shown that regard was had not only to the petitioner’s rights under article 8 but to those of Mrs Butt as well; express regard is had to their relationship, to her not being of Pakistani origin and to her status as a British citizen.  Then, it also refers to the prior findings of the immigration judges so having regard to the article 8 claims made before the tribunals, the essence of which has not – references to childrens’ interests apart – changed.  The respondent thus demonstrated that she was well aware of the facts and circumstances of the claim under article 8 that was being relied on.  Also, by referring, as  it does, to the comment by Holman J quoted in paragraph [3] above, the letter shows that the respondent is not satisfied that the factual basis for the article 8 case has changed since it was considered by Immigration Judge Corke in 2009.  She was correct to do so; no new facts had emerged.

[43]      I accept that the respondent has not spelt out expressly her response to the article 8 case insofar as involving Mrs Butt’s separate interests whether in terms of her wish to remain in the same country as her sister where she is settled or her fears about living in Pakistan or otherwise but they are, I consider, subsumed in the reference to the determinations of the immigration judges which dealt with her position, as discussed above.  Nothing new was being said and there was, in the circumstances, nothing wrong in the respondent aligning her reaction to the case based on the art 8 rights of the petitioner’s wife with that of the immigration judges.

[44]      Whilst some reliance was placed by the petitioner on the observations about the need, when considering the article 8 rights of an applicant’s spouse, to have regard to the rights that flow to a person by reason of their being a British citizen (and thus also imbued with the right to marry under article 12 ECHR), in the case of Mirza v Secretary of State for the Home Department [2015] CSIH 28, it was accepted that each case turns on its own facts.   Reference was also made to the case of Khan v Secretary of State for the Home Department [2015] CSIH 29 but I consider that, in common with Mirza, it turned on its own facts too.  In the present case, the facts had been considered by two immigration judges who took account of the British nationality of the petitioner’s wife and what she said relocation would mean for her.  Both concluded that she could go to Pakistan and that there were no good reasons for her not to do so, albeit in circumstances where it would be for her to choose what to do but also in circumstances where she had not said that she would not go with the man she had chosen to marry.  It was implicit in that approach and thus in the approach in the letter of 2 July 2013 that it was recognised that refusal of the petitioner’s application might result in the spouses being separated.  However, in the particular circumstances of this case, it was concluded that the weight of the countervailing considerations relevant to legitimate aim of immigration control was such that there were no realistic prospects of persuading a new immigration judge to reach a different decision.

[45]      In summary, the finding that there were no insurmountable obstacles to the petitioner’s removal and his wife’s relocation to Pakistan was not challenged but the respondent had not treated that as a determinative factor and she was, accordingly, correct in refuting the contention to the contrary and stating in the letter of 2 July that she was  entitled to regard it as a material factor;  the fact that the petitioner’s relationship with Mrs Butt was formed at a time when the petitioner was present in the UK illegally and thus in the most precarious of circumstances was highly relevant;  according to the Strasbourg case law, that put this case into the category of those where it is only the presence of exceptional circumstances that are likely to cause the balance to be struck in favour of granting leave to remain.  It is evident that the respondent was well aware of what was involved in the circumstances of the petitioner’s case including the implications of his having married a British citizen.  She was, equally, well aware of the details of his lengthy history of unsuccessful immigration applications and the absence of any new factual evidence to support the article 8 claim.  She was also not just entitled but duty bound to have regard to the interests of the state and concluded that, for her part, the balance ought not to be struck in favour of granting the application.  Further, she concluded that, in all the circumstances of this particular case, there were no realistic prospects of a different result were they to be placed before a third immigration judge.  Perfect exposition this letter is not but I cannot conclude that any of the criticisms which the petitioner makes of it undermine the lawfulness of the respondent’s decision.

[46]      In these circumstances, I would refuse this reclaiming motion.