Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 33

OPINION OF LORD ARMSTRONG

In the petition

AR (AP)

Petitioner;

for Judicial Review of a decision of the Upper Tribunal, dated 16 July 2014, to refuse permission to appeal

Pursuer:  McGuire;  Drummond Miller LLP

Respondent:  Komorowski;  Office of the Advocate General

4 March 2015

Introduction
[1]        On 4 March 2015, following submissions at a procedural first hearing, I made a brief ex tempore judgment in the course of which I accepted the principal arguments for the respondent and refused the petition.  Shortly thereafter, I was asked to produce a written judgment.  Accordingly, these are the full reasons of my decision.

[2]        The petitioner is a citizen of Bangladesh.  He arrived in the UK on 18 March 2008 and was granted leave to enter as a visitor until 20 September 2008.  Subsequently, on 24 October 2009, he was encountered working in a restaurant in Edinburgh.  He claimed asylum but his application was refused, a subsequent appeal dismissed and an application for permission to appeal to the Upper Tribunal (“the UT”) refused.  After further procedure and a further refusal of permission to appeal to the UT, his appeal rights were exhausted on 24 September 2010.  Further representations were refused on 18 December 2011.  He failed to attend for interview on 17 January and 16 February 2012 and failed to report as required at Corstorphine Police Station.

[3]        On 15 December 2013 he married in an Islamic wedding ceremony.  His wife is a UK citizen.  On 29 January 2014, he sought leave to remain in the UK, relying on his relationship with his wife.  His application was refused on 5 February 2014.  On 9 April 2014, he married his wife, legally, under Scots law.  Having appealed against the decision of 5 February 2014, the hearing before the First-tier Tribunal (“FTT”) took place on 22 April 2014.  Accordingly, although the pursuer was not legally married at the time of his application for leave to remain, on 29 January 2014, that was his status by the time of the FTT hearing on 22 April 2014.  His appeal to the FTT was based on article 8 ECHR.  It was refused on 14 May 2014.  Subsequently, on 16 July 2014, the UT refused him permission to appeal.  The petitioner seeks reduction of that decision.

The test
[4]        The case came before me on the preliminary issue of whether the matters raised in the petition were apt for consideration within the supervisory jurisdiction of this court.  The relevant test in that regard is now well understood, (see Eba v Advocate General (2012) SC(UKSC) 1, R (Cart) v Upper Tribunal (2012) 1 AC 633, Uphill v BRB (Residuary) Ltd (2005) 1 WLR 2070, SA v Secretary of State for the Home Department (2013) CSIH 62, EP (2014) CSIH 30.  The test is a stringent one designed to allow review only in rare or exceptional cases where it is necessary to correct instances of compelling injustice.  To meet the test, there must be identified an important point of principle or practice or other compelling reason which cries out for consideration.  The matter is to be dealt with as a question of relevancy.

The submissions for the petitioner
[5]        For the petitioner it was submitted that there was a compelling reason and an important point of principle or practice which justified the petition’s further progress.

[6]        It was submitted that the UT fell into error by failing to recognise an error of the FTT brought about by a failure properly to assess proportionality in the context of a claim based on article 8 rights where the case fell outwith the Immigration Rules.  Reference was made to MS v Secretary of State for Home Department (2013) CSIH 52, at paragraphs 24, 25, 29 and 30.  At paragraph 25, the court quoted passages from the decision in Home Secretary v Izuazu (2013) UKUT 45 (IAC), as follows:

“41.      Where the claimant does not meet the requirement of the rules it will be necessary for the judge to go on to make an assessment of Article 8 applying the criteria established by law.

42.       When considering whether the immigration decision is justified interference with the right to family and/or private life, the provisions of the rules or other relevant statement of policy may again re-enter the debate but this time as part of the proportionality evaluation.  Here the judge will be asking whether the interference was a proportionate means of achieving the legitimate aim in question and a fair balance as to the competing interests.”

[7]        In that context, the petitioner’s position at the time of his original claim on 29 January 2014 was that, because he was not legally married at that time, he did not meet the requirements of the Immigration Rules.  The FTT and the UT had not considered the necessity, in these circumstances to allow the assessment of proportionality to be undertaken by means of the provisions of the Immigration Rules “re-entering the debate”.

[8]        It was accepted, as recorded by the immigration judge in his decision, dated 14 May 2014 at paragraph 11, that at the outset of the hearing before the FTT the petitioner’s representative had expressly restricted the basis of the appeal to “Article 8 outwith the rules and nothing else required to be considered by me”.  However, the submission for the petitioner was that, notwithstanding that, proportionality should have been assessed by reference to the provisions of the Immigration Rules, consistent with the approach set out in MS.  Before the FTT, there had been reference to MS (see paragraph 63 of the decision of 14 May 2014) when, under reference to it, the petitioner’s representative had submitted that there was a good arguable case and that refusal would be unjustifiably harsh because of the consequences for the petitioner and his wife.

[9]        In that context, it was significant that the immigration judge, at paragraph 80, had found that it would be harsh and unreasonable to expect the petitioner’s wife and her two younger children to go to reside with him in Bangladesh and, at paragraph 91, that the petitioner and his wife had a genuine and subsisting relationship.  Under reference to App. FM to the Immigration Rules and in particular section EX.1, it was submitted that by the time of the FTT hearing, when the petitioner met the requirements of the rules, if they had been applied in the context of article 8 proportionality, section EX.1 would have applied, and the issue of proportionality would have been resolved in the petitioner’s favour.  That the UT had fallen into error was apparent from its reasons.  In determining that the proportionality of the outcome had been the decisive issue, it had failed to recognise that the FTT had erred by failing to carry out the process of assessment by reference to the Immigration Rules “re-entering the debate” and had thereby fallen into the same error itself.

[10]      In that regard, although section EX.1 had been in force at the time of the FTT hearing, section EX.2, which clarified the meaning of the phrase “insurmountable obstacles” used in section EX.1, did not come into force until 28 July 2014, that is after the date of the decision of the UT to refuse permission to appeal.  In Uphill, it was said at paragraph 24 that:

“On the other hand, if the authority of a higher court which shows that a decision on the first appeal was wrong post-dated that decision, then there might well be a compelling reason for giving permission for a second appeal.”

It was submitted that by analogy, where the coming into effect of section EX.2 had materially altered the content of section EX.1, there was a compelling reason to allow the petition to proceed.  The new content of section EX.1, as altered by section EX.2, was of relevance and significance to the petitioner’s case.

[11]      In addition to that compelling reason, an important point of principle arose as to how cases such as the petitioner’s should be dealt with in circumstances where there was a change in status, relevant to the application of the Immigration Rules, after the date of the original application but in advance of the hearing before the FTT.  Should an immigration judge, sitting as the FTT, have regard to the position as it was at the date of the original application or should he take into account the position as at the date of the hearing before him?

[12]      In response to an argument by the respondent to the effect that, in any event, the petitioner would have had little prospect of avoiding refusal under paragraphs S-LTR.1.6 and S-LTR.1.7(a) of App. FM to the rules, it was said that how the immigration judge might have approached the matter amounted to mere speculation.  The resolution of the issues raised by these paragraphs involved questions of fact and degree.

Submissions for the respondent
[13]      Counsel for the respondent adopted his note of written arguments.

[14]      Under reference to the decision letter dated 5 February 2014, attention was drawn to the factual basis underlying the petitioner’s application.  He had last had leave on 20 September 2008.  He had failed to leave the UK following the expiry of his limited leave to enter.  He had not attempted to regularise his stay until he was encountered on 24 October 2009.  He failed to leave the UK following the exhaustion of his appeal rights.  He had worked in the UK illegally.  He had failed to comply with the conditions of temporary release.  He had failed to report as required and had failed to comply with interview requests.  Given his abusive immigration history, at the time of the decision dated 5 February 2014 there were strong policy reasons pointing to removal.  At that stage, in effect, weight had been given to section S-LTR of App. FM to the rules in respect that:

“the presence of the (petitioner) in the UK is not conducive to the public good because (his) conduct ... makes it undesirable to allow (him) to remain in the UK”

(section S-LTR.1.6) and:

“the (petitioner) had failed without reasonable excuse to comply with a requirement to - (a) attend an interview”

(section S-LTR.1.7).

[15]      The UT had not fallen into error.  The petitioner’s argument that the FTT (and the UT) had erred by not recognising the need to apply the Immigration Rules in the context of the article 8 claim was artificial in circumstances where the petitioner’s representative had expressly requested that the appeal be considered without reference to them.  It had been confirmed to the immigration judge at the outset of the hearing that the basis of the appeal was restricted to article 8 outwith the rules and that nothing else required to be considered by him.  In these circumstances the FTT had approached the matter in the manner required on the petitioner’s behalf.

[16]      There was no doubt that the case of MS was authority for the proposition that the immigration rules could shed light on the process of assessment of proportionality in an article 8 claim outwith the rules, but, in that respect, here there were five points to be considered.

[17]      First, the FTT had considered the appeal on a basis which reflected the approach requested by the petitioner’s representative.

            Second, on the basis of the FTT’s note of submissions, following the identification of the approach desired by the petitioner’s representative, no attempt had been made on his behalf to invoke any particular provisions of the Immigration Rules in the context of his article 8 claim.

[18]      Third, the rules particularly identified in MS as being apt for the purpose of assessing proportionality are rules 276ADE-276DH.  These rules relate to private life, not family life.  In the context of the petitioner’s claim, which related to family life, it had not been submitted that there were other particular provisions of the Immigration Rules which ought to have been applied.

[19]      Fourth, had the Immigration Rules been applied, the result would have been adverse to the petitioner.  Sections S-LTR.1.6 and S-LTR.1.7 of App. FM are mandatory in their effect.  The factual background to the petitioner’s claim was such that the FTT took the view that it was so grave as to justify his removal in order to maintain the state’s interest in immigration control.  The FTT considered that to be proportional, notwithstanding that it would be harsh and unreasonable to expect the petitioner’s wife and children to leave the UK (paragraphs 80, 109, 113).  Thus, had the Immigration Rules been applied, they would have been of no avail to the petitioner’s case.  That fact, it was submitted, could explain why the immigration judge had been requested to consider article 8 outwith the rules and with consideration of nothing else.

[20]      Fifth, and in any event, in the written application to the UT for permission to appeal, made on the petitioner’s behalf, no mention was made of any requirement for the application of the Immigration Rules or any suggested error in that regard.

[21]      As regards the submission that the coming into force of section EX.2 of App. FM resulted in a compelling reason, the simple fact was that at the time of the UT decision its provisions did not yet apply.  It was difficult to see therefore how the UT could be criticised for failing to take them into account.  The analogy with a later authoritative decision demonstrating that the decision under consideration was wrong, cited in Uphill was not apt.  Section EX.2 was not inconsistent with section EX.1.  On the contrary it did not change the position, but merely confirmed the meaning of the phrase “insurmountable obstacles” which was already being applied.  That was apparent from the case of Gulshan (article 8 – new rules – correct approach) (2013 UKUT 640 (IAC ), at paragraph 24(c):

“the term ‘insurmountable obstacles’ in provisions such as section EX.1 are not obstacles which are impossible to surmount ... they concerned the practical possibilities of relocation”.

By comparison, the provisions of section  EX.2 are in the following terms:

“For the purposes of paragraph EX.1.(b) ‘insurmountable obstacles’ means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”

Since section EX.2 did not result in any material change to section EX.1, no compelling reason could be said to arise as a result of failing to take it into account.

[22]      As regards the submission that an important point of principle or practice arose in relation to how, in cases such as the petitioner’s, tribunals should deal with changing status, the correct approach was already established.  In LS (post-decision evidence;  direction;  appeal ability) Gambia (2005) UKAIT 00085, the Immigration Appeal Tribunal held, at paragraph 9:

“if an appellant claims that a decision is ‘not in accordance with Immigration Rules’, he is entitled to adduce evidence as to the present position even if it is clear ... that the requirements of the Immigration Rules were not met at the time of the decision itself.”

In any event, two further points were significant.  First, on the issue of the application of the Immigration Rules to the petitioner’s appeal, the FTT had followed the approach requested on his behalf, and, secondly, the issue was not something which had been relied upon in the petitioner’s written application to the UT for permission to appeal.

Determination of the issues
[23]      I am satisfied, on the analysis presented by the respondent, that the UT cannot be said to have fallen into error by failing to recognise that the FTT did not allow the Immigration Rules “to re-enter the debate” in considering article 8 proportionality.  In coming to that view, I take into account that the immigration judge was specifically requested not to consider the Immigration Rules.  I consider that the words of the petitioner’s representative before the FTT, as noted by the immigration judge, are properly interpreted in that way, particularly in light of the mandatory nature of sections S-LTR.1.6 and S-LTR.1.7 of App. FM which, given the factual background to the petitioner’s claim, would have operated against his interests.  In that regard, it is also significant that the issue did not feature in the written application to the UT for permission to appeal.  In these circumstances, the FTT cannot be criticised for not determining the petitioner’s appeal on a basis not advanced.  On the contrary, what the tribunal did was to determine the appeal on the specific basis requested.  Since the issue of whether the Immigration Rules should be applied was not live before the FTT, no error of law on the part of the FTT in that regard could arise.

[24]      As to the effect of section EX.2 of App. FM on section EX.1, I accept, taking into account what was held in the case of Gulshan, that no material change resulted from the coming into effect of the later provision.  In line with that, I also accept that in that context the analogy of an inconsistent later authoritative decision, as desiderated in Uphill, is not apt.  That being so, I am persuaded that in that regard, no compelling reason arises.

[25]      Having regard to the guidance given by the Immigration Appeal Tribunal in LS (Gambia) as to the position to be adopted in circumstances where relevant evidence post-dates the decision under consideration, I am persuaded that in that regard no important point of principle or practice arises which is yet to be established.

[26]      In the particular circumstances of the petitioner’s case, there is nothing in the argument presented to me which suggests that the FTT was wrong to assess proportionality by attaching the weight to the evidence of the petitioner’s poor immigration history which it did, when all other relevant factors relied upon were considered in the balancing exercise.  In approaching the matter as it did, the FTT’s assessment fell within the range of the discretion properly available to it.

[27]      Lastly, it was submitted on behalf of the respondent that the petition was irrelevant in that error on the part of the UT was not clearly averred.  In the particular circumstances of this case, however, I find that the averment made at paragraph 10 of the petition is sufficiently specific for these purposes.

Decision
[28]      For these reasons, I am persuaded by the respondent’s submissions that the case that the UT fell into error, that there is a compelling reason or that there is an important point of principle not yet established, is not made out.  I do not consider the petition to have high prospects of success.  In the result therefore, I sustained the respondent’s third plea-in-law, repelled his second plea-in-law, repelled the petitioner’s second plea-in-law and refused the petition.  I found the petitioner liable to the respondent in the expenses of the petition, as a legally assisted person, and modified his liability in that regard to nil.