Scottish Court of Session Decisions

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 14

XA46/15

Lord President

Lord Brodie

Lord Malcolm

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD PRESIDENT

in the Appeal

under sections 13 and 14 of the Tribunals, Courts and Enforcement Act 2007

by

KAMAL LARDJANI

Appellant;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Act:  Lindsay QC, Winter; Drummond Miller LLP (for Livingston Brown, Glasgow)

Alt:  McIlvride QC; Office of the Advocate General

3 March 2016

Introduction
[1]        This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 19 June 2014, which adhered to a decision of a First Tier Tribunal upholding the respondent’s decision to refuse the appellant’s application for leave to remain.  This Opinion must be read in conjunction with that in Muhammad Arslan Khan v Secretary of State for the Home Department [2016] CSIH 13. 

Immigration History

[2]        The appellant is an Algerian national.  He entered the United Kingdom unlawfully from France on 25 December 1999.  He had been arrested, after being found working illegally, on 11 July 2008.  He claimed asylum, but withdrew his application.  He was released upon reporting conditions, with which he failed to comply.  He left his place of residence and was treated as an absconder.  He was questioned on a criminal matter on 18 October 2011, when reporting restrictions were set up again.  He married a British citizen on 15 February 2012.  On 4 July 2012, he applied for leave to remain on the basis of his family life.  Leave was refused on 25 September 2013.  The appellant appealed.

[3]        In its decision of 27 February 2014, the FTT noted that the marriage between the appellant and his wife was genuine and subsisting.  The appellant had established a family life with his wife within the meaning of Article 8.  The appellant’s evidence was that he would not feel safe living in Algeria.  He is a Berber and Berbers have always been persecuted in Algeria.  He is a Christian, but most of his family are Muslim.  His father had asked him to leave the family home out of fear of repercussions.  The appellant had come to the UK to feel safe.  He had not, however, pursued a claim for asylum.  The appellant and his wife could have no life in Algeria.  He had no social, cultural or family ties in Algeria.  Although his parents and siblings live in Algeria, he has no contact with them.  His wife would not be able to cope.  She could not speak the language and would not be able to adjust to life there.  She had medical problems.  She had a job here.  She owned her home.  In Algeria she would be destitute and would feel unsafe.

[4]        The FTT held that, had the appellant been genuinely frightened of returning to Algeria, he would have made an application for asylum.  Instead, he had entered the UK illegally and evaded immigration control until he was encountered by chance in July 2008.  His actions were not those of a genuine asylum claimant.

[5]        The FTT determined that it had not been demonstrated, in terms of the Immigration Rules (HC395) Appendix FM: family members Rule EX1.(b)), that there were insurmountable obstacles to family life between the appellant and his wife continuing outside the UK.  Immediately after that finding, the FTT said:

“It follows that the appellant does not meet the requirements of EX1.(b) ... I do not accept the submission that the appellant’s wife could not reasonably be expected to relocate to Algeria and that removal of the appellant would be a disproportionate breach of their family life.”

After rejecting the appellant’s wife’s position on her medical state and her contention that she could not live in Algeria because she was a Christian, the FTT looked at the appellant’s private life, notably his illegal presence in the UK for 14 years.  She continued:

“For the reasons which I have given above, I find that any interference ... in the appellant’s private and family life would be proportionate to the legitimate public end sought ... Having carried out the necessary Article 8 balancing exercise, I find that the factors weighing in favour of the appellant are outweighed by those in favour of the Respondent.  I find that interference in the appellant’s private and family life is proportionate and that it is reasonable that the appellant should be expected to return to Algeria when he would be able to make an entry clearance application ...

            In summary, I find that it would not be disproportionate to remove the appellant from the UK and that removal would serve the wider interests of the public.  I do not accept that any return to Algeria to make an entry clearance application would be a serious disruption to the appellant’s family life and that it would be a disproportionate interference in the appellant’s and his wife’s family life.”

[6]        In its decision of 19 June 2014, the Upper Tribunal held that it was unable to identify any material error of law by the FTT.  The FTT’s conclusion, that removal of the appellant to Algeria would not be a disproportionate breach of the couple’s right to family life, had been one which had been open to her.  All the factors, on which the appellant and his wife relied, had been set out in the FTT’s determination.  There was no error of law in the FTT’s approach to the issues or on the balance to be struck between the appellant’s interest and that of the public.  Under reference to Izuazu (Art 8-New Rules) Nigeria [2013] INLR 733 (at para 69), the UT concluded that, whilst weighty reasons were needed to risk separating the parties, strong justification for expulsion was present in the appellant’s history of entering the UK by deception, remaining unlawfully, and establishing family life when both he and his wife knew that he was in the UK under precarious circumstances.

Submissions
Appellant
[7]        There were three grounds of appeal.  The submissions advanced in Muhammad Arslan Khan v Secretary of State for the Home Department (supra) were adopted mutatis mutandis.  Thus, under reference to Mirza v Secretary of State for the Home Department 2015 SC 572 (at paras [19] – [20]), the FTT had failed to give proper consideration to the appellant’s spouse’s British nationality.  The proportionality of the interference with the appellant’s Article 8 rights had to assume the separation of the couple.  Since removal could involve indefinite separation, because the appellant could not meet the criteria for entry, this was a disproportionate interference with the couple’s fundamental right to cohabit.  

[8]        The second ground was that the FTT had applied the wrong test of “insurmountable obstacles” when assessing proportionality.  The third ground was that the UT had erred by failing to recognise that, unless the assessment of proportionality was carried out in a proper manner, it could not be said that leave to remain would inevitably be refused.

[9]        The respondent adopted her submissions in Muhammad Arslan Khan (supra).  The FTT had adequately considered the appellant’s wife’s British citizenship and had given adequate reasons for its decision.  The FTT had not treated “insurmountable obstacles” as a substantive test.  The FTT had made no material error of law in its assessment of proportionality.  The FTT had had regard to all relevant factors in determining whether the decision gave rise to any insurmountable obstacles and in its proportionality assessment.

Decision
[10]      There was no dispute that the appellant did not qualify for leave to remain within the terms of the Immigration Rules.  It is not disputed that there is family life between the appellant and his wife within the meaning of Article 8.  The issue before the FTT was whether the respondent ought to have granted leave to remain outside the Rules on the basis that removal would be a disproportionate interference with the Article 8 rights of the appellant and his spouse.

[11]      For the reasons given in Muhammad Arslan Khan (supra), it is clear that, in assessing Article 8 claims in an immigration context, regard must be had to the fair balance that has to be struck between the competing interests of the individual on the one hand and of the community as a whole on the other.  Exceptional, or weighty, factors are required in order to tip the balance of proportionality away from the normal consequences in a precarious status case.

[12]      The FTT had properly considered whether the appellant could satisfy the terms of the Immigration Rules and concluded, correctly, that he could not.  The FTT then, as she was required to do, considered whether the claim might nevertheless succeed on the basis of Article 8.  She concluded that removal would not amount to a disproportionate interference with the Article 8 rights.  The FTT gave detailed reasons for the refusal to grant leave to remain.  These reasons were fully canvassed and reconsidered by the UT.  The FTT and UT both gave full consideration to the British nationality of the appellant’s spouse in the proportionality assessment.  The FTT concluded that the appellant’s circumstances were not of such exceptionality or weight as to justify the grant of leave outwith the Rules in a precarious status case.  The UT found that there was no basis to interfere with those conclusions. 

[13]      There is no basis for holding that the FTT or UT erred in arriving at that conclusion by leaving out of consideration the wife’s nationality or any other relevant factor.  The FTT had not regarded “insurmountable obstacles” as a test in this equation.  The UT considered and rejected, for reasons which it gave, the contention that the FTT had failed to have regard to relevant factors when assessing the proportionality of the removal of the appellant from the UK.

[14]      For these reasons the appeal is refused.