Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 81

XA145/14

Lady Clark of Calton

OPINION OF LADY CLARK OF CALTON

in the application for Leave to Appeal

by

HS (AP)

Applicant;

against

A decision of the Upper Tribunal (Immigration and Asylum Chamber)

dated 12 June 2014

Act:  Caskie;  Drummond Miller LLP (for Maguire, Glasgow)

Alt:  Pirie;  Office of the Advocate General

11 November 2015

History
[1]        The applicant is a citizen of India, born 5 August 1983.  He came to the United Kingdom on 11 April 2010 on a tier four (general) student visa which expired on 22 October 2012.  He made an application for leave to remain as a partner on 1 October 2012 on the basis of his relationship with HM.  This was a relationship he formed with a UK citizen whom he met while he was lawfully in the UK.  There was no dispute that the relationship was genuine.  HM both lived and worked in the UK at the time and resided with her young son and nephew, both UK citizens. 

[2]        The application was refused by the respondent in a letter dated 5 June 2013.  It was not disputed that the applicant, at the time of his application on 1 October 2012, did not satisfy the definition of “partner” in appendix FM of the immigration rules.  The applicant appealed the refusal decision to the First-tier Tribunal.  The First-tier Tribunal was invited by the applicant in effect to carry out an article 8 assessment taking into account that the applicant and HM had married in June 2013.   The appeal was dismissed.  The applicant further appealed to the Upper Tribunal and on 8 May 2014, the appeal was dismissed.  The Upper Tribunal refused leave to appeal to this court.

Submissions by parties
[3]        I am grateful for the written and oral submissions by counsel for both parties which I have considered.

The task for this court
[4]        The application before this court under section 13 of the Tribunals, Courts Enforcement Act 2007 and Rule of Court 41.57(2) is for permission to appeal against the decision of the Upper Tribunal dated 8 May 2014.  Rule of Court 41.57(2) provides that this court shall not give permission to appeal unless it considers 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.  I refer to SA v Secretary of State for the Home Department 2014 SC 1 at paragraph 44 and consider that the rule of court imposes a stringent test.  It was not disputed by counsel that the identification of a material error of law in the Upper Tribunal decision is not a sufficient condition to satisfy the test.

“Important point of principle”
[5]        The important point of principle identified by the applicant is set out in this way in the written note of argument:

“(a)      the UT requires to understand the complex provisions of Appendix FM when considering it, and;

(b)        where an Appellant did not qualify for Leave to remain when he applied but would do if he applied at the date of the hearing before the Immigration Judge (and such an application would not be a paid for application) there are advantages for the state if the Tribunal simply allows the appeal outside the Immigration Rules and those advantages require to be considered and weighed in an Article 8 assessment.  It served no proper purpose of the Immigration Rules to make a person who qualifies for Leave to Remain to suffer the disadvantages of the delay in making a further application.”

The submission on behalf of the applicant was not easy to understand.  It was also difficult to disentangle the submission in relation to the two different branches of Rule of Court 41.57(2).  In oral submission, counsel tried to explain and develop his submissions.  One line of argument was to the effect that in circumstances where an applicant at a later date fell within the rules, this should be given effect to in the article 8 assessment outwith the rules and in any event recognition should be given in the appeal process to the realities of the applicant’s circumstances rather than expect a party to make a new application under Immigration Rule 353.  This submission was made against the background that the applicant made complaint that no tribunal had carried out an article 8 assessment outwith the rules.

[6]        Counsel for the respondent did not accept the premise that the immigration rules were inordinately complex.  I disagree but must rely on the tribunals having the experience to deal with that.

[7]        In my opinion it appears that both the First-tier Tribunal and the Upper-tier Tribunal erred in law in this case.  They considered and applied a threshold test and did not carry out an article 8 assessment.  Both tribunals sought to apply the law as it had been understood at the time of their decision making based on MS v Secretary of State for the Home Department [2013] CSIH 52.  The applicable law, properly interpreted, and currently understood does not include any threshold test involving a consideration of “a good arguable case”.  The applicable law is explained and set out in Asif Ali Ashiq v Secretary of State for the Home Department [2015] CSIH 31.  In that case the court accepted that the immigration rules cannot be construed as providing a complete code for all article 8 claims.  The immigration 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.  Thus, if a claim arises under article 8 and it does not qualify under the rules, the decision maker must nonetheless consider it.  In Asif Ali Ashiq, Lady Smith considered the reference in the immigration rules to “good arguable case” and stated this did not impose another separate hurdle to be overcome by an applicant.  She considered that it should be read:

“as referring to the need for it to be evident from the terms of the application that an article 8 issue arises”.

[8]        Counsel for the respondent submitted that if the tribunal in seeking to identify factors to make a good arguable case could not find such factors it could not be argued that the judge could rationally found in the applicant’s favour on proportionality.  I reject this argument.  The task of the First-tier Tribunal was obvious.  The applicant by relying on his marriage and all the other circumstances was clearly raising an article 8 issue which had not been considered under the immigration rules.  The Upper-tier Tribunal in my opinion fell into the same error of law in relation to the threshold test and did not correct the error of the First-tier Tribunal. 

[9]        In this case it appears that no tribunal has carried out an article 8 assessment considering, for example, the implications of the marriage or the subsequent birth of a child and the article 8 rights of all the family members.

[10]      Counsel for the respondent also conceded that the Upper Tribunal misdirected itself in law in paragraph 30 in concluding that the applicant had to meet the financial requirements of the Immigration Rules in considering the application for leave to appeal.

[11]      In this case there may be justifiable complaint to be made about the way in which the tribunals applied the law but in my opinion the law is clearly set out in Asif Ali Ashiq and does not require clarification in the context of this case.  The issues raised by the applicant which I have recorded in paragraph 5 amount to no more than a complaint about the structure of the immigration rules causing personal disadvantage to the applicant.  Having carefully considered all the submissions, I do not consider any point of principle is identified by the applicant which would entitle this court to grant leave to appeal.

“Some other compelling reason”
[12]      In the written submission it was submitted on behalf of the applicant that:

“There is a compelling reason being the dire and drastic consequences of the petitioner requiring to remain in the United Kingdom unlawfully whilst, any further application is processed.”

Counsel for the respondent conceded that the applicant was entitled to make application in terms of Immigration Rule 353 because the birth of a child to the now married parents has not been considered by any tribunal in all the circumstances of this case.  Counsel for the respondent accepted that this would involve a consideration of all the circumstances, and that it would be relevant in the assessment of article 8 to consider to what extent the applicant, taking into account his present circumstances, would qualify within the appropriate immigration rules.

[13]      I do not consider the problems identified by counsel for the applicant which included financial, immigration and personal difficulties during the delay in a final determination of the applicant’s case amounted to dire and drastic consequences which would give rise to compelling reason.  Counsel for the applicant sought to develop the submission to argue that compelling reason might arise in circumstances where the tribunals at both levels had not considered the updated personal circumstances of the applicant and his family albeit counsel accepted that the birth of the child postdated the decision making of the tribunals.  In this case it is accepted that there is a route for such consideration to be given, and I am not persuaded that the errors in law and consequent delay in decision making amount to a compelling reason to grant leave to appeal.

Decision
[14]      For these reasons, the application is not granted and I refuse leave to appeal.