Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 118

 

P808/14

OPINION OF LORD BANNATYNE

In the petition

VISHAL SURI (AP)

Petitioner;

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Pursuer:  Bovey QC, Winter;  Drummond Miller LLP

Defender:  Komorowski;  Office of the Advocate General

 

1 September 2015

Introduction
[1]        The petitioner seeks judicial review of a decision of the Secretary of State for the Home Department to certify the petitioner’s human rights claim under section 94(2) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) in a letter dated 21 April 2014 (“the decision letter”).

 

Background
[2]        The petitioner is an Indian national.  On 13 May 2010 the petitioner was encountered during a visit conducted by Glasgow Immigration Enforcement Unit to a restaurant in Stirling.  When spoken to the petitioner stated that his name was Gurnail Singh born in Pakistan.  However, when questioned again about his identity he stated the true position regarding his identity.  He further advised he was born on 25 November 1971 in India and that he had arrived in the UK in or around August 2009 having been granted a six months visitor visa.  He was arrested on suspicion of being an overstayer.  On 13 May 2010 he was granted temporary release.  He failed to report to the immigration authorities.  On 29 March 2014, the petitioner was detained by the police and transferred to Dungavel detention centre.  On 3 April 2014 removal directions were set to remove the petitioner to India on 22 April 2014.

[3]        Following his detention on 14 April 2014 the petitioner instructed solicitors to lodge representations on his behalf based on article 8, ECHR.  Those representations stated that the petitioner first entered the UK in or around the middle of 2008 on a six months visitor’s visa.  He thereafter returned to India after spending three months in the UK.  He then re-entered the UK in or around August 2009.  In addition the said representations stated that he was currently engaged to a British national, JT.  They had been together since May 2012.  They began living together in June 2012.  They intended to marry in the near future.  Various documents were lodged in support of the petitioner’s representations.  The representations stated that the relationship was genuine and subsisting.  With respect to the petitioner’s fiancée it was also represented that:  she is British, has lived all of her life in the UK, cannot speak Hindi or Punjabi, has all her family in the UK and has no ties with India.  It was asserted in these circumstances it would not be proportionate to remove the petitioner.

[4]        In terms of the decision letter, reading short:  the Secretary of State concluded that it had not been demonstrated that first the petitioner was in a genuine and subsisting relationship with JT and secondly, that, even if he were in such a relationship, his removal from the UK would not breach his article 8 rights.  On each of the foregoing bases the claim was held to be clearly unfounded in terms of the 2002 Act section 94(2).  The first conclusion reached by the respondent was not insisted upon in the arguments before this court.  The issue therefore before this court related to the decision that even if he was in such a relationship his article 8 rights were not breached by his removal.

 

The test of clearly unfounded in terms of the 2002 Act
[5]        The test of clearly unfounded has been described in a number of ways.  It is a case which has no prospects of success (see:  R on the application of AK (Sri Lanka) v Secretary of State for the Home Department 2010 1 WLR 855 at paragraph 34 per Laws LJ);  if the claim cannot on any legitimate view succeed, it is clearly unfounded;  the claim “is so clearly without substance that the appeal would be bound to fail”;  an “arguable case” or one that could “on any legitimate view succeed” would not qualify for certification (see:  R on the application of Bagdanavicius v Secretary of State for the Home Department 2004 1 WLR 1207 at paragraph 58 per Auld J).  The Inner House in SN v Secretary of State for the Home Department 2014 CSIH 7 gave definitive guidance as to the proper approach to this issue where it stated the following:

“The statutory test for certification in terms of section 94(2) of the 2002 Act is whether the petitioner’s claim or claims ‘is or are clearly unfounded’.  In carrying out such certification, the respondent must apply section 94(3) of the 2002 Act.  We consider that it may lead to confusion to attempt to explain or replace the statutory words by other wording where there may be different shades of meaning in the different formulations.  In attempting to explain the statutory test, the Lord Ordinary used a number of different expressions including reference in paragraph 14 of his opinion to a claim which ‘must have some realistic prospect of success’.  He then concluded ‘to state that the prospects of success must be realistic is to say no more than that a judge properly applying his mind to the appeal under section 82(1) would be properly entitled to uphold the claim’.   We consider that this does cause some confusion and we refer to the discussion in ZT (Kosovo) v Secretary of State for the Home Department 2009 1 WLR 348.  The majority decision was to the effect that the ‘clearly unfounded’ test is more generous to the applicant than the ‘realistic prospect of success’ test.  That latter test which is very familiar to the courts in considering fresh claims under rule 353 of the Immigration Rules is commonly referred to as a very low threshold test.  In our opinion the statutory test at section 94(2) of the 2002 Act referring to claims which are ‘clearly unfounded’ is an even lower test which is more generous to an applicant.  We accept that there is some confusion in the discussion in the Lord Ordinary’s opinion of the test to be applied and that this arose because the Lord Ordinary was trying to deal with various formulations advanced.  We wish to emphasise the importance of the statutory language and the problems of attempting to reformulate the language.”

 

 

Section One
The first issue
[6]        Against that background the first issue raised was this:  what was the proper approach of the court when considering a judicial review arising out of section 94(2) of the 2002 Act?

 

Submissions on the first issue:  The role of the court
[7]        In short the petitioner’s position on this issue was this:  where the courts have the same material as that put before the Secretary of State, they are in as good a position to determine as she is:  Bagdanavicius, supra paragraph 58 per Auld LJ;  Razgar v Secretary of State for the Home Department 2004 2 AC 368 at paragraph 16-18 (per Lord Bingham), paragraph 26 (per Lord Steyn), paragraph 27 (per Lord Walker) and paragraph 69 (per Lord Carswell);  FNG v Secretary of State for the Home Department 2009 SC 373 at paragraphs 9-14 per Lord Hodge.  It was submitted that if the court concluded that a claim could not be bound to fail in circumstances where the Secretary of State had reached a contrary view, the court, would necessarily conclude that the Secretary of State’s view was irrational.  In support of this contention reference was made to ZT (Kosovo) v The Secretary of State for the Home Department (see:  paragraphs 22 and 23 per Lord Phillips, paragraph 54 per Lord Hope, paragraph 65 per Lord Carswell, paragraph 75 per Lord Carswell, and paragraphs 82-83, per Lord Neuberger.  Beyond that Mr Bovey relied on a number of Scottish decisions where the foregoing approach had been adopted:  MN v Secretary of state for the Home Department 2011 SCOH 121;  TW (Eritrea) v Secretary of state for the Home Department 2011 CSOH 88;  and Khalid Ahmed v Secretary of state for the Home Department 2015 CSIH 16 at paragraph 8 per Lord Eassie.

[8]        With respect to ZT (Kosovo) it was Mr Bovey’s position that on a proper reading of their Lordship’s decision as a whole it was the court’s view that in such matters the court’s own view was decisive of whether a claim was clearly unfounded or not.  He emphasised that in the instant case there was no dispute of primary fact and therefore whether the claim was clearly unfounded was only susceptible to one rational answer, namely:  in the petitioner’s favour.  It was his position that the Secretary of State was not better placed to make an assessment of how a specialist tribunal might assess the Secretary of State’s decision.  The Secretary of State was a party to proceedings and the court was not.  Whoever made the decision must exercise a judgement on the whole facts of the case.  The decision must accord with the requirements of anxious scrutiny that would be exercised by an immigration judge, see:  MN  v Secretary of State for the Home Department 2014 UKSC 183 per Lord Carnwath paragraph 31 and Dangol v Secretary of State for the Home Department 2011 SC 506 at paragraph 9.

[9]        The Secretary of State’s position in reply in short was this:  the role of the court when determining the legality of a certificate under section 94 of the 2002 Act was one of review.  In advancing this argument Mr Komorowski relied on the guidance given by the House of Lords in ZT (Kosovo).  He submitted that the Lords in this case had specifically considered the above question and had rendered the unanimous view that the role of the court was one of review.

[10]      It was his position that in so far as there might be observations in cases suggesting otherwise, sometimes proceeding on the agreement of counsel, they must be read as subject to and qualified by the unanimous views of the House of Lords, expressed, when specifically invited to resolve that question.

[11]      Mr Komorowski went on to submit that the real question was this:  did this differentiation in role have any consequences?  He submitted that it did have consequences.  He argued that on a proper analysis of ZT (Kosovo) the judges held that different decision-makers might legitimately come to differing views and therefore the court could conclude that a claim was not clearly unfounded and nevertheless the Secretary of State could reasonably arrive at a different decision. 

[12]      Mr Komorowski’s position in summary as to how the court in practical terms might approach its task was this:  in view of the nature of the power being exercised and the need to exercise anxious scrutiny the court’s view could form a starting point, though not always an end point, in determining whether the Secretary of State’s decision was rational.

[13]      So far as the precise circumstances where reasonable people might reasonably differ, Mr Komorowski contended that this was not on a proper reading of the speeches in ZT (Kosovo) limited to a single situation, namely:  where there was a dispute as to the primary facts in the case.  Mr Komorowski found support for this proposition in the observations of an Extra Division in MS (India) v Secretary of State for the Home Department  2013 CSIH 52 at paragraph 22 where the court stated the following:

“...  Under the case law of the European Court of Human Rights states are given a margin of appreciation as to how they respect convention rights.  ...  A corresponding element of discretion exists in domestic law ... the acts of the Home Secretary and her officials in immigration cases should not be assessed too critically in the light of statements made in Strasbourg case law;  the British and other national executives having considerable discretionary power as to how they implement the convention in individual cases ...”

 

[14]      Mr Komorowski, in addition in development of these observations argued this:  in assessing how a specialist tribunal might assess the Secretary of State’s decision, especially where that assessment was not to be done too critically, the Secretary of State was better placed than a generalist court “to forecast what the possible outcomes might be”.

[15]      Lastly, Mr Komorowski emphasised that the argument he was making would not of necessity always favour the Secretary of State.  He submitted this:  the court retains a discretion to refuse a remedy in a petition for judicial review where any error of law by the Secretary of State was immaterial.  This he submitted became significant where the challenge proceeded not,  or not only, on rationality grounds, but on the basis of some error of law, such as an inadequacy of reasons or a failure to take into account a relevant consideration.  An error would be immaterial where the court was satisfied that the only rational decision open to the decision-maker would have been the same.  Thus if the court ought to proceed on the basis that whether a claim was clearly unfounded was a black and white question admitting of only one rational answer, and that accordingly its own view of whether a claim was clearly unfounded was decisive of what rational view a decision-maker might reach, then the court could determine whether any error was material simply by arriving at its own view as to whether the claim was clearly unfounded.  On this approach, whether the Secretary of State’s decision was adequately reasoned, whether it considered all relevant matters, whether it applied the correct legal test etc, became questions which were redundant because their answer could not affect the outcome.  If the court concluded that the claim was not clearly unfounded then the Secretary of State’s decision was irrational.  However, if the court were to conclude that the claim was clearly unfounded, any legal errors founded upon by a claimant would be immaterial because only one rational decision was open to the decision-maker.  It was his position that this line of argument was implicitly recognised by the petitioner in the petition where at statement six the following was averred where the petitioner complained that the Secretary of State:

“Has erred by failing to take account of matters material to the outcome of the decision and/or has failed to explain how those material matters have been assessed ...”

 

 

Discussion
The Court’s function in a section 94(2) case
[16]      With respect to the above matter, I prefer the arguments put forward by Mr Komorowski.  I am persuaded that the function of the court is one of review.

[17]      It appears to me that in considering the function of the court in a section 94 case, the critical authority is ZT (Kosovo).  The court in this case considers specifically the question of the role of the court in approaching a claim for judicial review arising out of section 94(2) of the 1992 Act.  The  unanimous position of the judges was that the court’s task in such circumstances is to apply the normal principles of judicial review.

[18]      When considering this issue Lord Phillips observes as follows at paragraph 21:

“Must the court substitute its own view of whether the claim is clearly unfounded, or has no realistic prospect of success, for that of the Secretary of State or is the approach the now familiar one of judicial review that involves the anxious scrutiny that is required where human rights are in issue?  ZT is seeking judicial review and thus I would accept that, as a matter of principle, the latter is the correct approach.”

 

[19]      Lord Hope at paragraphs 53 and 54 says this:

“For the Secretary of State Mr Kovats submitted that the court should ask itself whether a reasonable Secretary of State could be satisfied that the claim was clearly unfounded, i.e. was bound to fail on appeal.  He suggested that the observation in R (L) v Secretary of State for the Home Department 2003 1 WLR 1230, paragraph 56, that the test was an objective one, as a claim was either clearly unfounded or it was not, might require consideration in an appropriate case.  The process was essentially one of review, and there might be cases where the issue was not so clear cut.  Mr Juss for the respondents submitted that what he described as a bland Wednesbury approach (Associated Provincial Picture Houses Ltd v Wednesbury Corporation 1948 1 KB 223) was inappropriate in this context.  The proper approach was to subject the decision whether the claim was clearly unfounded to anxious scrutiny.  He invited your Lordships to endorse Lord Hodge’s opinion in FNG, Petitioner 2008 CSOH 22, paragraph 14, where he said that a court, in deciding whether the Secretary of State was entitled to be satisfied that a claim was clearly unfounded:  ‘must (i) ask the questions which an immigration judge would ask about the claim and (ii) ask itself whether on any legitimate view of the law and the facts any of those questions might be answered in the claimant’s favour.’

 

54        In my opinion the courts should continue to follow the guidance that the house gave in R (Razgar) v Secretary of State for the Home Department 2004 2 AC 368 as to how section 94 cases should be dealt with.  Although the claim in that case was certified under section 72 of the 1999 Act and was on human rights grounds only, the guidance that it provides is just as relevant to cases certified under sections 94(2) and (3) of the 2002 Act and to asylum claims too.  The approach that Lord Hodge described in FNG, Petitioner, paragraph 14, is attractive because it encapsulates in a simple formula what Lord Bingham said in Razgar.  The key points in Lord Bingham’s opinion in that case are to be found in paragraph 17, where he said that a reviewing court must consider how an appeal would be likely to fair before an adjudicator as the body responsible for deciding any appeal, and in paragraph 20, where he said the reviewing court must assess the judgment which would or might be made by an adjudicator on appeal.  Questions that a reviewing court must ask itself, which Lord Bingham described in paragraph 17 must be subjected to anxious scrutiny.  It may become clear that the quality of the claim is such that the facts of the case admit of only one answer.  But the process as these observations serve to emphasise, is essentially one of review.”

 

[20]      Lord Hope at paragraph 55 makes certain further observations on the role of the court in light of Lord Bingham’s guidance given in Razgar:

“55.      I would be uneasy about substituting for the guidance that Lord Bingham gave in Razgar the observations of the Court of Appeal in R (L) v Secretary of State for the Home Department [2003] 1 WLR 1230 paragraph 56.  That case was among those that were cited in argument in Razgar, but it was not referred to by any of their Lordships.  They do not sit easily with Lord Bingham’s analysis in paragraph 18 of the answers that the reviewing court must give to questions that would have to be answered by an adjudicator.  It would be better to follow Lord Bingham’s careful guidance, which allows for the fact that there may perhaps be cases, albeit rarely, where the reviewing court recognises there may be more than one answer.  It must be stressed that the court is not an appellate court.  Its function throughout is that of review.  Its jurisdiction to deal with the case, outside the decision-making scheme laid down by the statute, rests entirely on that principle.”

 

[21]      It appears to me that the observations of Lord Hope as to the jurisdiction which the court is exercising are of importance when considering the role of the court.  The court is exercising its supervisory jurisdiction and therefore its function must be one of review.

[22]      Lord Carswell expresses agreement with the views above set out by Lord Hope at paragraph 65.

[23]      Lord Brown observes as follows on this issue at paragraph 72:

“I entertain no doubt the correct approach is that conventionally adopted on a judicial review challenge:  Wednesbury (with, in the present context, anxious scrutiny).”

 

[24]      Finally, Lord Neuberger at paragraph 82 expresses agreement with the views of Lord Hope and observes as Lord Hope had done that the normal judicial review approach is in line with the guidance given by Lord Bingham in Razgar.

[25]      I am satisfied that having regard to the above unanimous view of their Lordships that the proper approach is the normal one of judicial review.

[26]      I agree with Mr Komorowski that any observations in cases suggesting that the court’s role is to form its own view must be read as subject to and qualified by the clear and unanimous views of the House of Lords in ZT (Kosovo) expressed in circumstances where they were specifically invited to opine on the issue.

[27]      There is, however, a secondary issue:  is this limitation on the court’s role of any consequence?  This issue is highlighted by the comments of Lord Brown in ZT (Kosovo) where after stating that the correct approach is that normally adopted on a judicial review challenge, he goes on to say the following:

“72.      ...  It by no means follows, however, that there is any material difference between this approach and that of an appellate court when, as here, the issue ultimately before the court is:  could the ... (Tribunal) on appeal possibly have allowed the claim?  ...

 

75.       ...  Could the Court ever reach the position of saying:  we ourselves do not think that the appeal to the ... (Tribunal) in this case would have been bound to fail but we think that it was reasonable for the Secretary of State to decide that it would?  In my opinion it could not.  If the Court concludes in an appeal to the ... (Tribunal) might succeed, it must uphold the challenge and allow such an in-country appeal to be brought.”

 

[28]      The question then arises:  whether differing decision-makers might properly arrive at a different decision?  If the answer to that question is no then it must follow that the court can reach its own view and its role then becomes in practical terms to act as the primary decision-maker.  This would be the case in that the court’s conclusion that the claim was not clearly unfounded would ipso facto mean that any conclusion to the contrary would be irrational.

[29]      I am persuaded that on a fair reading of the speeches of their Lordships in ZT (Kosovo) that the view of four of them was that there could be circumstances where the court and the Secretary of State could reasonably hold different views as to whether a claim is clearly unfounded.

[30]      In the passage from Lord Brown’s speech above referred to it is clear that he is of the opinion that differing decision-makers could not legitimately come to reasonably differing views.  However, the other judges I believe all express contrary views to those of Lord Brown.

[31]      First, Lord Phillips at paragraph 23 expresses himself in similar terms to Lord Brown, however, his agreement is qualified in this way at paragraph 23:

“Where, as here, there is no disputed primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer.”

 

[32]      The implication from the above is that where there is a dispute regarding primary fact, there may be room for reasonably differing views as to whether a claim is clearly unfounded.  Turning to the speech of Lord Neuberger he says the following at paragraph 83:

“... it seems to me that, where there are no issues of primary fact, application of the test will, at least normally, admit of only one answer, and a challenge to the Secretary of State’s decision will normally stand or fall on establishing irrationality.  Accordingly, I agree that, if, in a case where the primary facts are not in dispute, the court concludes that a claim is not ‘clearly unfounded’ ... it is hard to think of any circumstances where it would not quash the Secretary of State’s decision to the contrary.  However, I would ... be reluctant to suggest that there is a hard and fast rule to that effect.”

 

[33]      As with Lord Phillips it appears that in circumstances where there is a dispute as to primary fact he regards this as a circumstance where there may be room for reasonably differing views as to whether a claim is clearly unfounded.  However, he goes further than Lord Phillips and expresses the view that even where there are circumstances where the issue of primary fact is not in dispute the court could hold that the claim was not clearly unfounded, however, nevertheless not quash the Secretary of State’s decision, on the basis that the Secretary of State could reasonably have arrived at a different view.  His position is that where the court held a different view from the Secretary of State it would normally intervene.  However, he was not prepared to accept this as a hard and fast rule.

[34]      Lord Hope also expressed views on this issue in the passage from his speech at paragraphs 53-55 earlier quoted.  In this section of his speech Lord Hope was not prepared to adopt the observations of the Court of Appeal in R (L) v The Secretary of State for the Home Department.  The Court of Appeal’s position in that case had been this:

“The test is an objective one:  it depends not on the Home Secretary’s view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had.  The claim is either clearly unfounded or it is not.”  (See:  paragraph 56).

 

[35]      Rather Lord Hope follows the approach set out in Razgar and says “there may be more than one answer” (see:  paragraph 55).   Moreover, in the final three sentences of paragraph 55 Lord Hope, as I referred to earlier, emphasises the court’s function as one of review and explicitly accepts that given that is the function of the court there may be cases where the reviewing court “recognises there may be more than one answer”.

[36]      As I have noted earlier Lord Carswell on this issue adopted the views expressed by Lord Hope.

[37]      Accordingly four out of the five judges accepted that there could be circumstances where reasonable decision-makers might reasonably differ as to whether the case was clearly unfounded and three of their Lordships did not confine their said views to the single circumstance of where there was a dispute as to primary fact.

[38]      I am satisfied that on a proper reading of ZT (Kosovo) there is a practical consequence in the answer to the question of what is the role of the court.  I am persuaded that on a proper reading of this decision the majority view of the House of Lords was that, even in circumstances where the primary facts were not in dispute, there may be situations where the court might hold a claim not clearly unfounded but nevertheless hold that the Secretary of State could properly hold that the claim was clearly unfounded.

[39]      I believe that certain support for this view can be found in the observations of the Extra Division at paragraph 22 in MS (India) to which I was referred by Mr Komorowski.  In addition it appears to me to be correct that the Secretary of State is better placed than a generalist court to forecast what the possible outcomes might be before a specialist tribunal.  This again tends to support the view that what the court’s function must be is to judicially review on a conventional basis the decision of the Secretary of State and that there could be circumstances in which they could reasonably hold differing views on this issue.

[40]      Finally Mr Komorowski argued that if the court’s view as to whether a claim was clearly unfounded was to be decisive then this could result in errors of law on the part of the Secretary of State such as a failure to apply the correct legal test becoming redundant issues as their answer on such an issue could not affect the outcome.  I believe that this argument has some force.  In my view such an outcome would be a particularly unfortunate result, given that in a judicial review the court is exercising its supervisory jurisdiction.  Such a result would in certain circumstances negate its ability to exercise that jurisdiction.  In conclusion I am persuaded that the limitation on the court’s role is not merely theoretical but has real consequences.  I am satisfied that there are significant reasons why the court’s role should be one of review.

[41]      Mr Komorowski in his submissions put forward what he believed a practical approach might be in the court carrying out its role which was this:  the court’s view could form a starting point in the decision making process in determining whether the Secretary of State’s decision was rational but not an end point.  I believe that that properly encapsulates the position.

[42]      Overall, for the above reasons, I am persuaded that the approach of the court put forward by Mr Komorowski is to be preferred to that advanced by Mr Bovey.

 

Section Two
The second issue
[43]      The second and substantive issue was this:  it was submitted on behalf of the petitioner, that the Secretary of State had failed to consider the petitioner’s claim outwith the Immigration Rules and had accordingly failed to take account of matters material to the outcome of the decision.  Beyond that it was submitted that the Secretary of State had failed to explain how these material matters had been assessed.  Thus the question for the court was this:  in what circumstances was it necessary for the Secretary of State to consider a human rights claim outwith the rules?

[44]      It is perhaps convenient at this stage to set out the context in which this second issue arose.  The petitioner’s application was made after what are commonly described as the new Immigration Rules as set out in appendix FM had come into force.  These were intended to cover circumstances where an applicant made an application relying on article 8 ECHR.  These new rules contain extensive and detailed provisions.  The rules are intended to cover a wide variety of circumstances

 

Submissions on behalf of the petitioner
[45]      Mr Bovey began by directing my attention to paragraph 9 of the decision letter at which point the Secretary of State found that even if there was a genuine and subsisting relationship there were no insurmountable obstacles to the petitioner and his fiancée relocating to India.  This assessment was explicitly made in terms of paragraph EX.1 of Appendix FM (see:  paragraph 5 of the decision letter).  It was by confining herself in the consideration of the article 8 claim to the Immigration Rules that Mr Bovey submitted that the Secretary of State had erred in law.  The error was by failing to consider the petitioner’s article 8 rights outwith the Immigration Rules.  This he submitted flowed from an erroneous equiparation by the Secretary of State of article 8 ECHR and the Immigration Rules at paragraphs 5 to 9 of the decision letter.

[46]      In development of the above argument, Mr Bovey submitted the effect of case law was this:  even if there were no insurmountable obstacles, decision-makers still had to go on to consider whether the decision was disproportionate having regard to all relevant factors (see:  R on the application of Ganesabalan) v Secretary of State for the Home Department 2014 EWHC 2712 (Admin) at paragraphs 15 and 19 to 22).  It was his position that in terms of Ganesabalan the decision-maker was duty bound to show that a conscious decision had been made as to whether or not the decision was proportionate notwithstanding paragraph EX.1 of Appendix FM was not met.  The decision-maker had failed to do this in the present case.  This was the same error that befell the decision-maker in Muhammed Irfan Khan and LK v Secretary of State for the Home Department 2013 CSOH 176 and Ganesabalan.  The decision-maker did not say that there was an arguable basis for granting the application outside the Immigration Rules because the decision-maker had not even considered whether there were other factors which merited the case being considered outwith the Immigration Rules, or if the decision-maker had done, he had not shown how these factors had been assessed in the balance.  That he submitted was because paragraph EX.1 of Appendix FM treated insurmountable obstacles as a minimum criterion to be met, whereas in terms of the case law it was simply a factor to be considered (see:  Izuazu (article 8 – new rules) 2013 Imm AR 453 at paragraphs 53 to 58.  Izuazu, a decision of the Upper Tribunal chaired by the President, Mr Justice Blake considered the inter-relationship between the said part of the Immigration Rules and article 8 it specifically considered how the test of “insurmountable obstacles” fitted with the jurisprudence both domestic and emanating from Strasbourg regarding article 8.

[47]      Mr Bovey then turned to consider in some detail Ganesabalan where Deputy High Court Judge Michael Fordham considered the issue of the circumstances in which a decision-maker had to consider article 8 issues outwith the Immigration Rules and said this at paragraphs 19 to 22:

“In Nagre (at paragraph 14, my emphasis added) the court held by reference to the guidance that relevant officials:

 

‘... if they come across a case falling outside the new rules ... nonetheless have to consider whether it is a case where, on the particular facts, there would be a breach of article 8 rights if the application for leave to remain were refused’.

 

At paragraph 34 in Nagre:

‘In cases where consideration of the new rules does not fully dispose of a claim based on article 8, the Secretary of State will be obliged to consider granting leave to remain outside the Rules.’

 

20.       In MF (Nigeria) the Court of Appeal referred in the context of exceptional circumstances and discretion to there being a necessity.  In paragraph 44 reference was made to the application of the proportionality test ‘as required by the Strasbourg jurisprudence’.  At paragraph 45 reference was to the fact that ‘it would be necessary to apply a proportionality test’.  At the end of paragraph 46 the Court of Appeal explained that, whether within or outside the Immigration Rules:  ‘either way it is necessary to carry out a two-stage process’ see too MM (Lebanon) paragraph 130;  Ahmed, paragraph 26:  (“Where a claimant did not meet the requirements of the Rules it is then necessary ... to proceed to make an assessment of article 8 applying the criteria established by law”);  and Amin, paragraphs 43 to 44 and 46.

 

(iv)       The discretion, described variously by reference to ‘exceptional circumstances’ or ‘unjustifiable hardship’, involves the Secretary of State applying a proportionality test and asking whether removal would be disproportionate by reference to article 8 standards.

 

21.       In MF (Nigeria) (at paragraphs: 44 to 45) the Court of Appeal framed the approach as follows:

 

44.       ‘…  The exceptional circumstances to be considered in the balancing exercise involved the application of a proportionality test as required by the Strasbourg jurisprudence …

 

45        … necessary to apply a proportionality test …’

 

In MM (Lebanon) (130) the Court of Appeal endorsed that position and at paragraph 134 described the proportionality test … guided by the Huang test and UK and Strasbourg case law.

22.       The same point can be seen from the other authorities:  See Halleemudeen, paragraph 59, referring to  the article 8 proportionality issue;  paragraph 67 referring to the assessment of proportionality;  Nagre, at paragraph 14, describing the guidance and the question whether on the particular facts there would be a breach of article 8;  paragraph 28, explaining that the basic framework of the analysis contemplated by Lord Bingham in Huang continues to apply;  and paragraph 35, referring to the question whether article 8 gives rise to a good claim for an individual to be allowed to remain.  See too Ahmed at paragraph 30, referring to the weighing exercise to be carried out compatibly with the convention; and Amin paragraph 34, referring to consideration of ‘article 8 in its fullness’ and explaining between paragraphs 40 and 46, the significance for the residual discretion of the need to comply with the Secretary of State’s duty under section 6 of the Human Rights Act.

v.         There is no prior threshold which dictates whether the exercise of discretion should be considered; rather the nature of the assessment and the reasoning which are called for are informed by threshold considerations, those threshold circumstances include (a) what are an arguable basis for the exercise of the discretion  being put forward;  (b) whether the relevant factors have already been assessed;  (c) whether a repeat evaluation is unnecessary.”

 

[48]      Mr Bovey submitted that the Secretary of State had failed to take the approach outlined therein.

[49]      Mr Bovey’s position could perhaps be summed up by reference to the following passage at paragraph 9 of Ganesabalan:

“(1)      There is always a ‘second stage’ in which the Secretary of State must consider the exercise of discretion outside the Rules and must be in a position to demonstrate that she has done so.

 

(2)        The extent of that consideration and the extent of the reasoning called for will depend on the nature and circumstance of the individual case.”

 

[50]      Proportionality he submitted required a consideration of the whole circumstances and not merely the relevant Immigration Rules.  It required a holistic approach. 

[51]      Next Mr Bovey directed my attention to Gulshan (Article 8 – New Rules – Correct Approach) 2014 Imm AR 2 a decision of the Upper Tribunal.  The tribunal held as set out at page 490:

“(2)      After applying the requirements of the Immigration Rules, only if there might arguably be good grounds for granting leave to remain outside them was it necessary for article 8 purposes to go on to consider whether there were compelling circumstances not sufficiently recognized under them:  R (on the application of Nagre) v  Secretary of State for the Home Department 2013 EWHC 720 (Admin) applied.  The term ‘insurmountable obstacles’ in provisions such as EX.1 were not obstacles which were impossible to surmount:  MF (Nigeria) v Secretary of State for the Home Department 2013 EWCA Civ 1192 and Izuazu (article 8 – new rules) 2013 UKUT 45 (IAC) applied.  They concerned the practical possibilities of relocation.  In the absence of such insurmountable obstacles, if removal was to be disproportionate it was necessary to show other non-standard and particular features demonstrating that removal would be unjustifiably harsh:  Nagre applied (paragraphs 21 - 24).”

 

[52]      Mr Bovey submitted that the foregoing case was wrongly decided.  In particular it was his position that non-standard features were not a correct approach to article 8 in this context because insurmountable obstacles did not equate with proportionality.  He submitted that the decision did not conform to the holistic assessment of proportionality.  He described Gulshan as a rear guard action and submitted that expressions such as “non-standard features” and “run of the mill case” used by the tribunal rang alarm bells.

[53]      In the course of submissions the court was advised that the opinion of the Inner House in a reclaiming motion was about to be issued which dealt with the second issue in the instant case.  In these circumstances I allowed parties, if they wished, to lodge further written submissions in light of this decision.  In fact within a short time of the submissions in the instant case the Inner House issued three opinions which had relevance to the second issue before me and both parties made further written submissions arising out of these decisions.  These three cases were:  Muhammed Irfan Khan v Secretary of State for the Home Department 2015 CSIH 29, Gulshahbaz Ahmed Mirza v Secretary of State for the Home Department 2015 CSIH 28 and Asif Ali Ashiq v Secretary of State for the Home Department 2015 CSIH 31.

[54]      In respect of these further cases Mr Bovey’s position was that the decision-maker in the instant case had fallen into the same errors as those identified in Khan and Mirza, namely:  there had been no consideration of the case outside of the Immigration Rules and that this was an error of law (see:  Ashiq at paragraph 5).  The circumstances in which it was found not to be a material error of law in Ashiq were set out in paragraph 24 of the opinion of the court.  However, the circumstances giving rise to that finding were clearly very different from those of the present case and Khan and Mirza.  In particular the spouse in Ashiq, was of Indian sub-continental origin and not a British citizen and was found by the FTT judge to intend to accompany the petitioner to Pakistan (see:  paragraphs 10 and 13).

[55]      He submitted it was confirmed in Mirza at paragraph 20 and Khan at paragraphs 8 to 13 that for a decision-maker to focus merely on insurmountable obstacles was a material error of law.

[56]      Moreover, he argued that the decision-maker in the instant case had fallen into a further error identified in Mirza.  The court in its discussion at paragraphs 18 and 19 observed that the petitioner’s fiancée could not be required to leave the UK.  Moreover, the right of residence in the UK and all that went with that residence, including the benefits of the citizenship of the EU, weighed heavily in the assessment of the proportionality of the interference with the couple’s human right to co-habit together.  That assessment had to be conducted on the basis of separation of the couple;  it was not open to the Secretary of State to contend that any incompatible interference with the couple’s article 8 rights could simply be avoided by stating that the couple might move to another country.

[57]      The Secretary of State in the instant case he submitted had proceeded entirely on the basis that the petitioner’s fiancée should go with him to live in India.  That approach ignored the fact of her native British citizenship;  failed to consider that the refusal of leave may result in the indefinite separation of the parties and whether that indefinite separation could be justified as a proportionate interference with their fundamental right to co-habit as a couple.  By ignoring the rights flowing to the petitioner’s fiancée from her citizenship of the UK and assuming she must go to India to preserve the substance of her “marriage” the decision involved a material error of law (see:  Mirza at paragraph 20).

[58]      As with Mirza at paragraph 20, the decision letter under challenge had proceeded on the assumption by virtue of the finding of the decision-maker that there were no insurmountable obstacles to the petitioner’s fiancée going to live in India.  As noted above it was not appropriate to apply a test of “insurmountable obstacles” to the petitioner’s fiancée being able to join him in India.  Insurmountable obstacles were simply a factor.  A disproportionate decision or measure is not to be equiparated with the existence of an insurmountable obstacle.  The decision-maker also assumed that India accorded to its nationals the right which the immigration laws of the UK did not accord to British nationals, namely an unqualified right to be joined in India by a non-national partner.  Beyond that he argued that, in so far as the Secretary of State relied on “unjustifiably harsh consequences”, that is the wrong test (Mirza at paragraph 21).  The issue was whether there was interference, substantial even on the erroneous basis of requiring the fiancée to live in India, could be justified by the Secretary of State as proportionate to some legitimate objective.  This involved a case specific identification of the objective, degree and nature of the interference.  The Secretary of State failed to carry this out.

[59]      The Secretary of State relied in the current petition on the absence of “non-standard features”.  However, it was his position, that this reflected the language of “exceptional circumstances “ and “unjustifiably harsh consequences” which had been used in other cases.  It was his submission that having regard to what was said by the court in Mirza that those phrases were simply another way of assessing the case by reference to proportionality standards.

[60]      Beyond that Mr Bovey referred to the observation at paragraph 12 of Khan that in light of the myriad of factors in play when assessing proportionality, it was impossible to say that an immigration judge would inevitably refuse the petitioner’s case (see:  also paragraph 10 of Khan).

[61]      In light of the foregoing he submitted that it could not be said that the instant case was bound to fail as on one legitimate view of the facts and/or the law the case might succeed.  It was his position that the Secretary of State had not approached the decision in a lawful manner, had not asked the legally relevant questions, not had regard to legally relevant considerations and given legally adequate reasons.

 

Reply on behalf of the Secretary of State
[62]      Mr Komorowski began by looking at the general issue of the inter-relationship of the Immigration Rules and article 8 claims.

[63]      He first directed my attention to MS (India).  Therein the court observed with respect to the status of the rules (which had recently come into force and were referred to as the “new rules”) at paragraph 21:

“There has been some debate about the precise status of the new rules:  See R (Nagre) v Home Secretary (supra), paragraph 25 et seq.  The Rules are not a statute but merely a statement by the executive of how it intends to exercise powers conferred by statute.  Consequently the application of the Rules in individual cases  is potentially subject to judicial review.  Nevertheless, the new rules have been debated in Parliament, which confers a certain degree of democratic approval.  Moreover, they are instructions put forward by the minister in a democratically elected government who is charged by statute with the administration of the immigration system.  To that extent, too, the rules can be said to result from democratic processes.  These are factors which must be given some weight when a court considers the application of the rules, although they cannot be conclusive because the rules do not have the force of statute.”

 

[64]      The court having considered the status of the rules then made certain observations at paragraph 22 regarding the discretion of the Secretary of State and arising from this the need not to scrutinise her decision too closely.  The court went on at paragraph 24 to adopt the observations of Sales J in R (Nagre) v SSHD and in particular the following:

“...  Following the introduction of the new rules, it can be expected that the cases where article 8 rights are asserted will be fewer than previously.  Nevertheless, we consider that the legal position is correctly stated by Sales J in R (Nagre) v Home Secretary, supra at paragraphs 28 and 29.

 

...  Nonetheless, the new rules do provide better explicit coverage of the factors identified in case law as relevant to analysis of claims under article 8 than was formally the position, so in many cases the main points for consideration in relation to article 8 will be addressed by decision-makers applying the new rules it is only if, after doing that, there remains an arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to article 8 that it will be necessary for article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under the new rules to require the grant of such leave”.

 

The court further at paragraph 26 adopted certain further observations of Sales J in Nagre:

“    ‘The only slight modification I would make for the purposes of clarity, is to say that if, after the process of applying the new rules and finding that the claim for leave to remain under them fails, the relevant official or tribunal judge considers it clear that consideration under the Rules has fully addressed any family life of private life issues arising under article 8, it would be sufficient simply to say that;  they would not have to go on, in addition to consider the case separately from the Rules.  If there is no arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to article 8, there would be no point in introducing full separate consideration of article 8 again after having reached a decision on application of the Rules’.

 

We agree entirely with that qualification.  It seems to us that the new rules are likely to deal adequately with the great majority of cases where the article 8 right to private or family life is put in issue.  In that event there is no need to go on to consider article 8 separately, using the type of analysis set out in R (Razgar) v Home Secretary supra.

 

27.       In some cases, however, the new rules may not adequately cover an applicant’s article 8 right to private of family life.  At one time, following observations of Lord Bingham R (Razgar) v Home Secretary, supra at paragraph 20, it was thought that the test for cases where the article 8 right required independent consideration was one of exceptionality;  Lord Bingham had indicated that:  ‘decisions taken pursuant to the lawful operation of immigration control proportionate all save a small minority in exceptional cases, identifiable only on a case by case basis’.  That test was departed from to some extent in Huang v Home Secretary, supra, however:  Lord Bingham at paragraph 20.  It seems to us that the problem with the test of exceptionality is that the word ‘exceptional’ is ambiguous.  In its most literal meaning, the word signifies that a norm exists and that the case under consideration is an exception to that norm.  If used in that sense, the test would require the decision-maker to treat the new rules as setting the norm and consider whether there was something in the particular case that took it outside the scope and intent of those roles.  The more common usage of ‘exceptional’, however, is ‘unusual’ or ‘almost unique’ (Chambers’ dictionary).  That is not an adequate criterion for determining when the new rules cover a case adequately and when they do not.  For that reason it seems to us that the test of exceptionality should not be used.”

 

[65]      Lastly, at paragraph 28 the court considered the test which the Secretary of State should apply in cases where leave is sought outwith the rules:

“28       As to the test that should be used, in R (Nagre) v Home Secretary, supra, Sales J indicated at paragraph 49 that he had concerns about the use of the label ‘exceptional cases’ in the guidance given by the Home Secretary  to describe the area in which a residual discretion to grant leave outside the rule operates.  He thought the busy, hard pressed officials might refer only to the label and not keep in mind the proper notion of exceptional cases.  He continued

 

‘Officials should take care to avoid a ‘tick box’ approach, genuinely bear the policy guidance in mind to seek to stand back after working through the analysis required under the new rules so as to make an overall assessment of the facts to see whether there might be a good arguable case of disproportionality if leave to remain is not granted and, if there is, to examine that case with care to see whether removal would be justified.  The reasoning and decision letters should seek to demonstrate that this reasoning process has indeed been gone through.’

 

We agree entirely that officials charged with making immigration decisions should have regard to the substance of the policy guidance that is given in relation to leave outside the Rules;  that is the guidance referred to in paragraph 7 above.  It can be expected that the new rules will cover most cases where an applicant seeks to rely on his or her convention right to private and family life.  If an official or tribunal or court is asked to consider leave outside the Rules, an applicant must put forward a reason for doing so.  Such a reason will usually consist of circumstances ‘in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate.’  (In the words of paragraph 3.2.7d of the Home Secretary’s guidance).  We are of the opinion that in considering whether such circumstances have been demonstrated by an applicant, the criterion that should be used is that of R “good arguable case”, as suggested by Sales J in the passage quoted above.  The decision-maker should examine the circumstances put forward by the applicant and determine whether they disclose a good arguable case that the Rules would produce an unfair or disproportionate result such that the applicant’s article 8 rights would be infringed.  It is only if that test is satisfied that there is any need to go on to consider the application of article 8 in detail.  Furthermore, as Sales J indicates those writing decision letters should demonstrate that they have indeed addressed the test.”

 

What Mr Komorowski took from the observations in MS (India) was this:  the proper approach for the decision-maker was this:  (1) was there a case within the rules;  (2) the decision-maker then had to consider whether there was a good arguable case outwith the rules;  (3) in considering that second issue what was not being looked for was odd or rare features (he accepted that that would not be a correct approach) but rather simply circumstances not catered for in the rules themselves.  Such circumstances could be described as exceptional in that they fell outwith the circumstances taken account of in the rules.

[66]      Counsel then drew my attention to Gulshan and in particular to paragraph 24 where the Upper Tribunal having considered the authorities on this issue of the proper approach concluded that on the basis of these authorities the position was this:

“...

 

(b)        after applying the requirements of the Rules, only if there may arguably be good grounds for granting leave to remain outside them is it necessary for article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them:  Nagre;

 

(c)        The term ‘insurmountable obstacles’ in provisions such as EX.1 are not obstacles which are impossible to surmount:  MF (Nigeria);  they concerned practical possibilities of relocation.  In the absence of such insurmountable obstacles, if removal is to be disproportionate it is necessary to show other non-standard and particular features demonstrating that removal will be unjustifiably harsh:  Nagre.”

 

[67]      It was Mr Komorowski’s position that the observations made in Gulshan fitted in well with the analysis in MS (India).  It was his position that MS (India);  Gulshan and Nagre all reached the same position as to the proper approach of the decision-maker.

[68]      Mr Komorowski then turned to look at the decision in Ganesabalan upon which Mr Bovey had placed considerable weight.

[69]      Mr Komorowski’s position was that he did not agree with the analysis of the issue in that case and in particular he argued that the analysis did not fit with that contained in MS (India) and that in those circumstances the judgment in MS (India) must rule.

[70]      Principally Mr Komorowski said the decision did not fit in two respects with MS (India):  first, that there required to be a separate and discrete decision in every case outwith the Immigration Rules and secondly, that there was no particular threshold as to when the Secretary of State must look outwith the rules.

[71]      Mr Komorowski referred me to the decision of the Court of Appeal in Singh and Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74 in which the court at paragraph 65 considered the case of Ganesabalan and made the following observations thereon at paragraph 66:

“(1)      I should emphasise – though it is in truth entirely clear from the full judgment – that Mr Fordham's statement that ‘there is always a second stage’ does not in any way qualify what Sales J says at paragraph 30 of the judgment in Nagre.  Sales J's point is that the second stage can, in an appropriate case, be satisfied by the decision-maker concluding that any family life or private life issues raised by the claim have already been addressed at the first stage – in which case obviously there is no need to go through it all again.  Mr Fordham's point is that that is a conclusion which must be reached as a matter of conscious decision in any given case and cannot simply be assumed.  I agree with both points.

 

(2)        The statement that the decision-maker ‘must be in a position to demonstrate’ that he or she has given the necessary consideration is simply a reflection of the ordinary obligation to record a material decision.  If the decision-maker's view is straightforwardly that all the article 8 issues raised have been addressed in determining the claim under the Rules, all that is necessary is, as Sales J says, to say so."

 

[72]      Having looked at the proper approach to be taken by the decision-maker Mr Komorowski turned to the question of which factors relied on by the petitioner, if any, required a separate consideration outwith the Immigration Rules, if any.

[73]      The factors relied upon by the petitioner in support of his claim are as earlier set out in paragraph 3 of this opinion.

[74]      It was his position that nothing on the list amounted to a non-standard factor which required consideration outwith the rules;  the features relied on could properly be described as common or typical features;  having regard to the terms of the relevant rules, namely:  Appendix FM, they already took into account the partner’s status as a British national (see:  reference is made to partners of British nationals in Appendix FM at paragraphs gen.1.1, e‑ltrp.1.2. and EX.1);  that all British nationals or EU nationals and their status as such was accordingly also already taken into account and was not non-standard.  Further the difficulties posed, for instance, by the petitioner’s partner not speaking the languages of the petitioner’s country of origin were already taken into account within the provision in Appendix FM for insurmountable obstacles (paragraph.EX.1).

[75]      Counsel’s submission regarding the three further Inner House authorities was this:  with respect to Ashiq his position was that the decision was on all fours with the decision in MS (India).  He also submitted that it could be taken from this case that an immaterial error of law, constituted by a failure to consider any article 8 claim outwith the rules would not lead to reduction of the decision in the circumstances where the error made no difference (see:  paragraphs 25 and 27)

[76]      Turning to Khan he said this:  during the course of the hearing before the Inner House, counsel for the Secretary of State had come to accept the decision under review omitted to consider the petitioner’s article 8 claim outwith the Immigration Rules, and that the omission constituted an error of law.  No such equivalent concession was made in the present case.  Therefore the court was concerned solely with whether the error was material.  In finding that the error was material, it rejected counsel for the Secretary of State’s submission that “the only matter put forward by the petitioner is the mere fact of his marriage” (see:  paragraph 10).  Rather, the representations included a contention that removal would have “material, financial and housing consequences” for the petitioner’s wife, and there were also concerns for her safety there.  He contrasted these factors with those presented in the instant case.  In the list of factors presented by the petitioner no such difficulties or concerns were relied upon.  Accordingly it was his position that this case could be distinguished on that basis alone.

[77]      He went on to submit that there were perhaps indications within the court’s opinion (see:  paragraphs 12 and 14) that the court thought it would never refuse a remedy on the basis that the failure of a human rights claim was inevitable.  Those indications he submitted could not be said to form part of ratio of the court’s decision.  If they did, there would be no need for the court to take notice of certain aspects of the petitioner’s human rights claim as it evidently did at paragraph 11.  It could simply have rejected the Secretary of State’s submission as a matter of principle, without consideration of the particular representations that had been put forward by the petitioner.  The court also would have gone further than merely “not ... necessarily accepting or endorsing that the Scottish judicial review jurisdiction was in every respect equally discretionary as in England” (see:  paragraph 14).  He submitted that it would have been expected for them to be more forthright and said that any discretion did not extend to withholding a remedy where the error of law was immaterial.

[78]      For the foregoing reasons it was his position that there was nothing in the case of Khan which conflicted with the ratio of Ashiq, that judicial reviews could be refused where the outcome of the decision impugned was inevitable.

[79]      Regarding Mirza he submitted that the critical part of the opinion was at paragraph 20.  He accepted that it might be taken from the terms of this paragraph that the court was saying the decision-maker must always explicitly consider in a claim outwith the Immigration Rules the weight to be given to the partner’s rights as a British citizen and that it was wrong to proceed on the basis that the partner would accompany the applicant abroad.  If that could be taken from the paragraph then it was his position that he could not accept this as correct in that it was not consistent with the ratio of MS (India).  He submitted that by its very nature the fact that the partner might be a British citizen could not be said to be something outwith the intent and scope of the Immigration Rules.

 

Discussion of the second issue
[80]      The starting point in considering the second issue and the question I posed at the start of section 2 of my opinion, I believe should be the Inner House decision in MS (India).

[81]      In the first part of its decision the court discusses the relevant principles which should be applied in the consideration of this issue.

[82]      The following broad statements of principle I believe can be taken from this section of the opinion:

• So far as the precise status of the new rules, they have in that they were debated in Parliament and were put forward by a democratically elected government:“a certain degree of democratic approval”;(see:paragraph 22).
• The domestic government is granted by decisions of the Strasbourg Court a margin of appreciation as to how it respects convention rights.There is thus an element of discretion in how human rights are secured in terms of domestic law (see:paragraph 21).
• The Immigration Rules when dealing with article 8 claims are not exhaustive.They do not cover every possible circumstance which may be presented in an individual article 8 case.Thus the decision-maker in appropriate cases will have to consider the article 8 claim outwith the rules.
• The new rules will deal “adequately with the great majority of cases where the article 8 right … is put in issue”.(See:paragraph 26).
• The court did not like the use of the word “exceptional” to cover the circumstances in which it would be necessary for the decision-maker to look outwith the rules due to its ambiguity and its common usage as meaning “unusual” or “almost unique” (see:paragraph 27).
• The court accepted that the rules set out the norm (see:paragraph 27) and therefore the decision-maker required to consider whether there was something which took the claim outwith the norm.What the decision-maker requires to look for is this:is there any factor which was not fully taken into account in the provisions of the rules (paragraph 32).
• That in considering what fell outwith the norm the type of features to be considered were not “a very common feature” and were not “very typical” (see:paragraph 33 and 34) and thus were not fully taken account of in the rules.
• In considering the necessity of proceeding to an independent consideration outwith the rules what should be considered is this:is there a “good arguable case” (see:paragraphs 26, 30 and 32).However, in saying that the court did not appear to be setting up an intermediary test.Rather it was reinforcing that there had to be some factor identified which had not been taken account of in the rules before a separate consideration outwith the rules was required.

[83]      In summary this could be said to be the ratio of the court’s decision:  when determining whether consideration outwith the Immigration Rules was necessary, the decision-maker had to ask whether there were features present which were not fully taken into account in the Immigration Rules.  Moreover, I am satisfied what can also be taken from MS (India) is this:  it is not necessary in every claim under article 8 for the decision-maker to make a full independent article 8 assessment outwith the rules.  In many cases a consideration within the rules will be sufficient.

[84]      I now turn to consider whether the opinions in the three Inner House cases upon which further decisions were made impact on the general principles which I have sought to derive from MS (India).  First Ashiq, in this case an Extra Division reviewed all the authorities in this area and analysed the way in which the law had developed.  On a proper reading of the opinion I am persuaded that the decision as to the principles to be applied is entirely in alignment with the opinion of the court in MS (India).

[85]      There are three further points in Ashiq to which I would wish to make specific reference.

[86]      First the court in Ashiq at paragraph 6 considers the issue of “good arguable case” as referred to in MS (India) and Nagre.  The court having considered the various authorities holds that “good arguable case” does not place an intermediary test between consideration within and outwith the Immigration Rules.  It is not “a separate hurdle”.  The court describes it thus:  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”.

[87]      It appears to me that this is in no way different from what is said in MS (India) (see:  paragraph 32) or in Nagre but rather gives an explanation of what is required of the decision-maker when deciding whether it is necessary to look outwith the rules.

[88]      Secondly in order to show that the decision-maker he did not confine himself to consideration of the rules and that he understood the duties incumbent on him in terms of article 8 the court makes it clear that the approach is one of “substance” and should not be a “formulaic” one.  It is emphasised in the opinion that if all issues are addressed within the rules there is no need to go through the matter again and that all the decision-maker requires to do is “to say so”.

[89]      This substance based approach I am persuaded reinforces the point made in MS (India) and in Nagre that if all issues raised with respect to family life are addressed within the rules there is no need to go through the matter again in a separate article 8 assessment outwith the rules which would be no more than a tick box exercise, and lacking in any substance.  If the relevant issues are addressed in terms of the rules a separate examination outwith the rules is unnecessary.

[90]      Thirdly, at paragraph 25 the court held that the Secretary of State’s error in failing to consider the claim outwith the rules was immaterial as consideration outwith would inevitably have resulted in the same result, namely:  that the claim should be refused.  Thus an immaterial error of law resulting from a failure to consider an article 8 claim outwith the rules should not lead to a reduction of the challenged decision.  I do not believe that the decision of the court was in conflict with the views in Khan, for the reasons advanced by Mr Komorowski.  In any event the observations in Khan were obiter.

[91]      I believe that the principles that I have derived from MS (India) and Ashiq are in conformity with the principles which can be derived from the English cases of Gulshan and Nagre.

[92]      It flows from the above principles that if Ganesabalan decided, that it was necessary in all article 8 claims for the decision-maker to proceed to a full independent second stage then in so deciding it is clearly out of line with the foregoing authorities and I am not persuaded that I should follow it.  However, if Mr Fordham’s decision is as analysed at paragraph 66 of Singh it appears to be in line with the other authorities.  I am persuaded that, the analysis of Mr Fordham’s decision in Singh is correct and that it accordingly falls into line with the other authorities to which I have referred. 

[93]      With reference to the two further Inner House decisions I would comment as follows:

[94]      Turning first to Mirza I observe that it does not provide any general guidance on the issue of approach to an article 8 claim outwith the rules.  The opinion does not at any point discuss or in particular make any observations which expressly throw any doubt on the guidance contained in MS (India).  The only explicit observation is that what was said at paragraph 29 of MS (India) was obiter (see:  paragraph 22).

[95]      Turning to the detail of the decision itself, the Secretary of State was held to have erred in law in two respects first;  the use of the test of “unjustifiably harsh consequences” in the decision letter, although that phrase had been endorsed by the court in MS (India) at paragraph 28.  However, no such test was applied in the case before me and this issue can be passed over without further comment.

[96]      The second important respect is set out at paragraph 20 of the opinion and is this:

“… By ignoring the rights flowing to (the petitioner’s wife) by her citizenship of the United Kingdom and assuming that she must go to Pakistan to preserve the substance of her marriage the decision involved an error of law.  The assumption proceeds upon the basis of the conclusion which the author … reached in his consideration of the terms of EX.1(b) of … (at Appendix FM of the Immigration Rules) that there were no ‘insurmountable obstacles’ to … (the petitioner’s wife) going to live in Pakistan.  But, in our view, when it comes to an assessment for proportionality, it is not appropriate to apply a test of whether there might be an ‘insurmountable obstacle’ the petitioner’s wife being able to join him in Pakistan.”

 

If what is to be taken from paragraph 20 is this:  a decision-maker must always explicitly consider outwith the rules the weight to be given to the partner’s rights as a UK citizen and that it is wrong to proceed on the basis that the partner could accompany the applicant abroad this is inconsistent with the guidance given in MS (India) as such a factor could not be said to be one which is not taken account of within the rules themselves.  By its very nature, that a partner might be a British citizen cannot be said to be something outwith the intent and scope of the Immigration Rules given its express mention therein see:  at GEN.1.1.;  E-LTRP.1.2;  and EX.1.(b).  It cannot be said to be something which is not taken into account by the rules, for the same reason.  It is not something that is non-standard and particular, rather it is something obviously common or typical.  It is a consideration which is at the core of the rules.  If the circumstance of the partner’s UK citizenship is something which is catered for by the rules and a decision-maker were to consistently give (some weight) to the rules, and take account of the “underlying policy” of the rules (including paragraph EX.1 regarding insurmountable obstacles) whilst at the same time holding that it would never be right to proceed on the basis that the partner should be expected to accompany the applicant to the latter’s country of origin in order to preserve their family life EX.1 of the rules is rendered valueless.  The foregoing I believe strongly suggests that this factor of itself is not one which requires consideration outwith the rules.  Beyond that applying the guidance in MS (India) I am persuaded that this factor is one which does not require there to be consideration outwith the rules.  The UK citizenship of the partner of an applicant is I accept an important consideration in the assessment of an article 8 claim, however, it is a factor which is expressly taken into account in the rules. 

[97]      The court in Mirza placed reliance on certain observations of the Upper Tribunal in Sanade and Others (British Children – Zambrano – Dereci) 2012 Imm AR3 (see:  paragraph 19).  The observations therein are made in respect to EU law and not to ECHR law.  One of the appellant’s in Sanade had his case appealed to the Court of Appeal Sub nom Harrison v Secretary of State for the Home Department [2013] INLR 416 and the court held at paragraph 63 as follows:

“There is really no basis for asserting that it is arguable in light of the authorities that the Zambrano principle (decided by the Court of Justice for the European Union) extends to cover anything short of a situation where the EU citizen is forced to leave the territory of the EU.  If the EU citizen, be it child or wife, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there is in my view nothing in these authorities to suggest that EU law is engaged.  Article 8 convention rights may then come into the picture to protect family life … but that is an entirely distinct area of protection.”

 

[98]      What can be taken from the above statement is this:  the Zambrano principle has no application in the circumstances of the instant case as there is no suggestion that the petitioner’s partner would be forced to leave the territory of the EU as a result of any decision made by the Secretary of State and accordingly I am persuaded the decision in Sanade does not assist with respect to the issue of what factors require separate consideration outwith the rules.

[99]      The court in Mirza at paragraph 17 also placed certain reliance on observations of Sedley LJ in AB (Jamaica) v Secretary of State for the Home Department [2007] EWCA Civ 1302 at paragraph 20.  These observations were not made in the context of the new Immigration Rules and the factors taken account of therein and I do not therefore believe that the observations assist in relation to the issue before me.

[100]    Turning to the case of Khan again there was no consideration of the broad issues of principle regarding approach which had been dealt with in the cases of MS (India), Ashiq, Gulshan and Nagre.  There was no discussion of MS (India) and it was not articulated at any point in the decision that the guidance in MS (India) was being departed from and the reasons why that was being departed from.  In that case there was a concession by counsel for the Advocate General that the second decision letter had failed to give any consideration outwith the Immigration Rules, and this was an error of law, that was not the situation in the instant case.  Moreover, there were factors present in that case, as outlined by Mr Komorowski which I am satisfied were non-typical factors and therefore required consideration outwith the rules.  I am of the view that this was a case decided on its own facts and circumstances and does not give any particular guidance on the issues of principle.

[101]    Overall it is not entirely clear whether the decision in Mirza and Khan were intended to be consistent with MS (India).  As I have said there is no detailed discussions of MS (India) and its import in either of these cases and nor is there any clear explanation as to how these decisions do, if they in fact do, differ on issues of principle as enunciated in MS (India).

[102]    I am, with some hesitation, persuaded that neither of these cases depart from the principles as outlined in MS (India) and that in fact these cases were decisions which were particular to their own factual matrices.  In particular it appears to have been a major consideration in both cases that the applicant was married to his partner (see:  Mirza at paragraph 16 and 17 and Khan at paragraph 19).  The marriage of the parties was not a factor which was present in the case before me.

[103]    Accordingly, in summary in so far as the opinions in Mirza and Khan can be said to be different from the guidance in MS (India) and Ashiq I prefer the analysis and guidance as set out in MS (India) and Ashiq for the reasons I have set out.

 

Application of the above principles to the circumstances of the instant case
[104]    Having set out the general principles to be applied I turn to consider the decision letter in the instant case and to apply those principles thereto.

[105]    There is no question that in the decision letter there is no consideration of the claim outwith the rules.  This is made expressly clear at paragraph 5 of the decision letter where this is said:

“Consideration has been given to your client’s claim that his removal from the United Kingdom would breach his right to respect for family and private life under article 8 of the ECHR.  Your client’s application to remain in the United Kingdom has been determined in accordance with Appendix FM and Rule 276ADE of the Immigration Rules.”

 

[106]    Thereafter having regard to the whole terms of the decision letter it is clear that the consideration by the decision-maker does not go beyond consideration of the rules.  The question then becomes was there any requirement on the decision-maker, to look outwith the rules having regard to the above principles?

[107]    Having regard to the factors relied upon by the petitioner as earlier set out, I can identify no factor which was not already taken into account by the Immigration Rules.  There is nothing non-standard or particular about these factors which required the decision-maker to go outwith the rules in order to properly consider the claim.  Mr Komorowski in the course of his submissions set out why these factors were all matters which were considered within the rules and I accept the analysis put forward by him in relation to this.  That the petitioner’s fiancée is a British national and therefore an EU national is taken into account through the application of the rules.  The difficulties that the petitioner’s fiancée may face, were she to move to India, are very typical features of removal and there is nothing therein which could not be said to be taken into account in EX.1.  That the petitioner’s fiancée had family here, and did not wish to go to India again are very typical features of removal and are matters which fall within EX.1.  The petitioner’s claim could be said to be a paradigm of the type of case where the factors relied upon are fully addressed within the rules and no compelling circumstances not recognised by the rules are relied upon.  Thus I am satisfied that the decision-maker did not require to carry out a separate and distinct consideration outwith the rules.  Accordingly I believe that there was no material error of law in the decision-maker not proceeding to carry out an assessment of the petitioner’s claim outwith the rules.  Having regard to the factors relied upon it was sufficient for the decision-maker to confine the consideration of the application to the rules.  There was nothing outwith the rules to consider.  It would have been no more than a matter of form to look outwith the rules.

[108]    One matter referred to by Mr Bovey in his submissions but not relied on before the Secretary of State was this:  “The respondent has not demonstrated that she (the fiancée) would obtain entry clearance to India as the petitioner’s fiancée.”  It is not asserted that this is a real issue, as it is not argued that there would be any actual difficulty.   Beyond that it is something which in any event is considered within the rules as consideration is explicitly given to the partner’s UK citizenship and it is the type of factor which would be considered in terms of insurmountable obstacles, if raised.

[109]    What is, however, lacking in the decision letter is a clear and explicit statement that the decision-maker has reached the conclusion that there is no need to go outwith the rules in order to make the decision given the factors relied upon in the claim.  It is clear from MS (India) (see:  paragraph 28), Ashiq, and Singh and Khalid (see:  paragraph 66) that the decision-maker should say explicitly that she has reached the decision that it is not necessary to look outwith the rules.  The decision-maker has accordingly erred in law.   The question then is this:  is the error of law material?  As to whether this is a material error of law, I consider that it is not, I am satisfied that it would have made no difference to the decision if the decision-letter had explicitly stated that the decision-maker had reached this decision.  In substance the decision-maker has properly carried out the task and in my judgement it would have been no more than form for those words to have been added. 

 

Decision
[110]    For the foregoing reasons I repel the petitioner’s pleas-in-law, sustain the Secretary of State’s plea-in-law and I refuse the petition for judicial review.  I reserve all issues of expenses.