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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kaur, R (on the application of) v Secretary of State for the Home Department [2018] EWCA Civ 1423 (21 June 2018) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1423.html Cite as: [2018] EWCA Civ 1423

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Alexandra Marks, sitting as a Deputy High Court Judge
Insert Lower Court NC Number Here

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/06/2018

Lord Justice Holroyde:

1. By a letter and a Notice of Decision dated 2^nd May 2013 the Secretary of State for the Home Department ("the SSHD") refused an application by Mrs Paramjit Kaur ("Mrs Kaur") for leave to remain in the United Kingdom. The reasons for the refusal which the SSHD gave at that time were later supplemented in a further letter dated 25^th April 2014. Mrs Kaur applied for judicial review of the SSHD's decision. Her claim was heard on 28^th January 2015 by Alexandra Marks, sitting as a Deputy High Court Judge, who quashed the SSHD's decision as irrational and unreasonable. The SSHD now appeals against the decision of the Deputy Judge.
2. The appeal was for a time stayed to await the decision of the Supreme Court in R (Agyarko) v SSHD [2017] UKSC 11, [2017] 1 WLR 823. The stay was lifted following the decision in Agyarko in March 2017. The appeal was then listed to be heard in November 2017, but unfortunately it became necessary to vacate that date.

The facts:

3. The relevant facts can be summarised as follows. Mrs Kaur, a national of India, is now 58 years old. On 16^th January 1983, in India, she married Mr Gurinder Singh ("Mr Singh"), who is also now aged 58. They have a daughter now aged 34, and a son now aged 30, both of whom have been resident in this country for some years, and both of whom have children of their own.
4. Mr Singh came to this country in January 1997, initially with leave to enter as a visitor, and has remained here since that time. Mrs Kaur and the children stayed in India. Between 1997 and 2006, Mrs Kaur came to the United Kingdom as a visitor on about four occasions each year, returning to India after each visit. On her last such visit, she entered the country on 10^th December 2006 with leave which expired on 10^th June 2007. She has remained unlawfully in this country since that date.
5. Mr Singh initially made an asylum claim, which was unsuccessful. He nonetheless remained unlawfully in this country, and in about 2010 he made an application to the SSHD for leave to remain under the Legacy Scheme. This court has not been provided with a copy of his initial application. There is no clear evidence that it included any formal application on behalf of his wife, and the SSHD's case has throughout been that it did not. The court has however been provided with copy correspondence from which it is apparent that, in late 2010, Mr Singh did make a written request to include his wife, son, daughter and grandson in his application. He did so in his reply to a letter dated 8^th November 2010 from the UK Border Agency asking him to provide information including a copy of the marriage certificate, the duration of his cohabitation with his wife, when and where they met, when they commenced a relationship and when they decided to marry. However, notwithstanding Mr Singh's provision of that information and his making of that request, the only application which the SSHD had to consider, and did consider, was his application. On 23^rd March 2011 Mr Singh was granted indefinite leave to remain, but no such grant was made to Mrs Kaur. On 4^th July 2013 Mr Singh became a naturalised British citizen.
6. In February 2012 solicitors wrote to the SSHD on Mrs Kaur's behalf asking why her claim had not been considered. It is not clear whether the solicitors thought that a formal application for leave to remain had in fact been made by Mrs Kaur in 2010 or 2011. No documentation has been provided to this court unequivocally showing that she did. It seems probable that the solicitors were referring to the correspondence in which Mr Singh had expressed a wish for his wife and other members of his family to be included in his application.
7. Thereafter, Mrs Kaur undoubtedly did make a formal application for leave to remain. She did so by a letter dated 7^th February 2013, in which the solicitors acting on her behalf stated that she sought leave to remain –

"… on compassionate grounds on the basis of her connections in the UK and possible breach of human rights under Article 8 of the ECHR, namely her right to respect for her private life in accordance with paragraph 276ADE(vi) and EX.1(b) of the Immigration Rules."

The letter went on to refer to Mrs Kaur's arrival in the UK on 10^th December 2006, to her earlier frequent visits to her husband, to the failure of the SSHD to make any decision on the claim which she said she had made in 2011, and to the presence in the UK of her close family. The letter stated that Mrs Kaur did not wish to return to India, having established a private life in the UK, and said –

"… our client does not have any social, cultural family or any other ties in India any more. This is on account of the length of time that she has been in the UK, the ties and connections she has established in the UK, the fact that her family are residing in the UK and on the basis that our client's mother in law recently passed away in India. As such, our client has no further ties with her country of origin."

The letter went on to speak of Mrs Kaur having integrated herself into British society and asserted that she did not have any means of support in India. It further stated that there were insurmountable obstacles to family life continuing with her husband outside of the UK, on the basis that Mr Singh had been residing in the UK for more than 16 years and had established a life for himself here, being in gainful employment and making a valuable contribution to society. It was submitted that it would be unreasonable to expect him to leave the UK and return to India, and that there were insurmountable obstacles to Mrs Kaur and Mr Singh continuing their family life outside the UK.

8. An application form was also completed by Mrs Kaur or on her behalf, but it is not suggested in this appeal that it added anything of substance to the matters mentioned in the solicitors' letter.

The SSHD's decision:

9. As I have indicated, the SSHD gave her decision on 2^nd May 2013: about two months before Mr Singh became a British citizen. She did so in a letter which enclosed, and referred to, a Notice of Decision. I have no doubt that the two documents must be read together. Summarising their contents, the SSHD addressed the provisions of the Immigration Rules pursuant to which Mrs Kaur had applied for leave to remain. The SSHD stated that Mrs Kaur had no family life with her daughter which would be relevant to her Article 8 rights, because the daughter was married and living an independent life. The relevant family life was therefore that of Mrs Kaur with Mr Singh. The SSHD acknowledged that Mr Singh's Article 8 right to a family life must also be considered. So far as Mr Singh was concerned, the letter said that Mr Singh had lived in India until he was 38 years old and that the SSHD was satisfied that he could readapt to life in India. It was therefore reasonable to expect Mrs Kaur and Mr Singh to continue their family lives and private lives outside of the United Kingdom:

"Whilst it is acknowledged that this decision may cause a degree of hardship and inconvenience for your client and her husband, this is not decisive from the viewpoint of Article 8. The Secretary of State has weighed up the hardship and inconvenience this refusal may cause and is satisfied that the decision is proportionate to the aims of maintaining an effective immigration control. The Secretary of State is therefore satisfied that the decision to refuse your client does not represent a breach of any party's Article 8 rights to a family life or private life."

The letter stated that Mrs Kaur therefore did not qualify within the Immigration Rules under either the "Parent Route" (Appendix FM, R-LTRPT 1.1) or the "Partner Route" (Appendix FM, R-LTRP 1.1). As to her private life, the letter indicated that the SSHD did not accept that Mrs Kaur had lost ties to her home country during the period of time she had been in the UK, and accordingly was not satisfied that she could meet the requirements of Rule 276ADE(iv) of the Immigration Rules. Mrs Kaur's application was therefore refused. Mrs Kaur had no right of appeal, as she did not have leave to enter or remain in the UK as at the date of her application.

10. The solicitors representing Mrs Kaur responded to that decision with a pre-action protocol letter. The claim for judicial review was then issued on 2^nd August 2013, and permission to apply was granted on 27^th January 2014.
11. On 25^th April 2014 the SSHD sent a supplemental letter, to be read in conjunction with the original decision of 2^nd May 2013. In relation to Rule 276ADE, the letter noted that Mrs Kaur was 53 years old when she made her application and had spent only 7 years of her life continuously in the UK. It was therefore considered that she had stronger ties to India than to the UK. The letter further noted that Mrs Kaur volunteered at a local Sikh temple, and went on to say –

"The evidence shows that your client is living in a diaspora of Indian nationals or ex-nationals so she continues to enjoy the culture and language of her own country here in the UK. Therefore, as your client retains her cultural and language ties to India, it is considered she would be able to return to India and adapt to living there with little disruption."

12. As to whether there were exceptional circumstances, such as to justify a grant of leave outside the Rules, the letter defined that term as meaning circumstances in which refusal would result in unjustifiably harsh consequences for Mrs Kaur or her family, such that refusal of leave would not be proportionate. It noted that Mrs Kaur had been living in this country unlawfully since 2007. The length of time she had spent in the UK was not considered exceptional. Although reference had been made by Mrs Kaur to a diagnosis of Type 2 diabetes, there was no evidence as to the date of that diagnosis or as to any necessary medication, and in any event the condition was not life-threatening and could be treated in India. It was not considered that her circumstances were exceptional, and the refusal of leave to remain would not result in unjustifiably harsh consequences for her. Having reviewed the decision to refuse Mrs Kaur's application, the SSHD was satisfied that it was correct and therefore maintained that decision.

The legal framework:

13. The Immigration Rules have been amended since the date of the SSHD's decision in this case. At the material time, the Rules relevant to this appeal – paragraph 276ADE and Appendix FM - were in the following terms.
14. Paragraph 276ADE, so far as material, provided –

"276ADE. The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3 and S-LTR 3.1 in Appendix FM; and

ii) has made a valid application for leave to remain on the grounds of private life in the UK; and

iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or …

vi) is aged 18 years or above, has lived continuously in the UK for less that 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK."

15. The meaning of the phrase "no ties", in sub-paragraph (vi), was considered by Blake J and UT Judge O'Connor in the Upper Tribunal's decision in Ogundimu v SSHD [2013] UKUT 60 (IAC). The Upper Tribunal held that the phrase imports a continued connection to the life of a country, something that ties a claimant to his or her country of origin. The test under the Rules is an exacting one. Consideration of whether a person has no ties to a country must involve a rounded assessment of all the relevant circumstances, and is not limited to social, cultural and family circumstances. At paragraph 125 it was said:

"Whilst each case turns on its own facts, circumstances relevant to the assessment of whether a person has ties to the country to which they would have to go if they were required to leave the United Kingdom must include, but are not limited to: the length of time a person has spent in the country to which he would have to go if he were required to leave the United Kingdom, the age that the person left that country, the exposure that person has had to the cultural norms of that country, whether that person speaks the language of the country, the extent of the family and friends that person has in the country to which he is being deported or removed and the quality of the relationships that person has with those friends and family members."

In the circumstances of that case, the Upper Tribunal was satisfied that the claimant (who had lived in this country since the age of 6) had no ties with his native Nigeria, concluding that he was "a stranger to the country, the people and the way of life".

16. The facts were very different in R (Bailey) v SSHD [2014] EWHC 1078 (Admin), where the claimant had spent most of her formative years in Uganda, had come to the UK in her twenties and had only been here for about 8 years. Andrews J said:

"It plainly is not the sort of case with which the Upper Tribunal was concerned in Ogundimu or indeed in Green. Both of those were cases involving people who had come to this country as very young children and been granted leave to remain in the jurisdiction, who had no ties whatsoever with their country of origin, but who had then committed criminal offences and therefore appeared to be subject to compulsory deportation to that country, subject only to Article 8 considerations. But this is not a case in which it could possibly be concluded that Mrs Bailey would be a complete stranger to Uganda, however strong the ties that she has formed in the UK since coming to this country and overstaying her visa."

17. The Ogundimu approach was approved by this court in CG (Jamaica) v SSHD [2015] EWCA Civ 194 (in which the court pointed out that a person may have close ties with another state even though there is little or no prospect of his receiving support in that state), R (Akpan) v SSHD [2015] EWCA Civ 1266 and Herrera v SSHD [2018] EWCA Civ 412. In Akpan, Sales LJ said at paragraph 25:

"At para 125 of its judgment in Ogundimu the Upper Tribunal was not seeking to put this 'rounded assessment' into a straitjacket, nor to create a checklist of matters which had to be present or which had to be addressed directly in a decision letter. It was simply indicating that if the relevant decision-maker did have regard to these considerations in making their 'rounded assessment', that would be lawful. In other words, the listed considerations could on no view be regarded as irrelevant considerations for the purposes of the assessment to be made, if a decision-maker chose to have regard to any of them. Depending on the particular circumstances of a specific case, one or all of them might be highly relevant."

18. Appendix FM to the Immigration Rules set out, amongst other things, the conditions of eligibility for limited leave to remain as a partner:

"E-LTRP.1.1 To qualify for limited leave to remain as a partner all of the requirements of paragraphs E-LTRP.1.2. to 4.2. must be met.

…

E-LTRP.2.1. The applicant must not be in the UK in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1. applies."

Paragraph EX1 stated that –

"EX.1. This paragraph applies if …

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

19. In MF (Nigeria) v SSHD [2013] EWCA 1192, [2014] I WLR 544 this court held that it would be contrary to Article 8 to interpret "insurmountable obstacles" as meaning obstacles which are literally impossible to surmount.
20. In R (Nagre) v SSHD [2013] EWHC 720 (Admin) Sales J (as he then was) observed that the Immigration Rules do not cover every conceivable case in which a foreign national may have a good claim for leave to remain under article 8. By way of example in relation to paragraph 276ADE he said:

"… there may be individual cases of adults who have lived in the United Kingdom for less than 20 years and who do retain some ties to their country of origin, but in relation to whom the ties they have developed and the roots they have put down in the United Kingdom manifestly and strongly outweigh those ties, so that it would be disproportionate to remove them."

In such circumstances, he said, the SSHD would be obliged to consider granting leave to remain outside the Rules. I accept the submission of Mr O'Brien, on behalf of the SSHD, that it is certainly implicit (if not indeed explicit) in Sales J's observation that such a consideration is not possible under paragraph 276ADE(vi) itself.

21. Cranston J, sitting with UT Judge Taylor in the Upper Tribunal, neatly summarised the effect of the latter two decisions at paragraph 24(c) of his judgment in SSHD v Gulshan [2013] UKUT 00640 (IAC):

"the term 'insurmountable obstacles' in provisions such as section EX.1 are not obstacles which are impossible to surmount: MF (Nigeria); they concern the 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."

22. Earlier in the judgment, the Upper Tribunal had referred to the SSHD's Guidance to decision-makers considering a claim of insurmountable obstacles under the Rule. That Guidance indicated that even a significant degree of hardship or inconvenience did not amount to an insurmountable obstacle, and that the focus should be on the family life to be enjoyed in the country to which an applicant would be returned and not on a comparison to the life the family would be able to enjoy if allowed to remain in the UK.
23. Since the decision of the Deputy Judge in this case, the meaning of "insurmountable obstacles" has been definitively stated by the Supreme Court in Agyarko. Lord Reed, with whom the other Justices of the Supreme Court agreed, referred to Jeunesse v The Netherlands (2015) 60 EHRR 17, GC, saying:

"42. In Jeunesse, the Grand Chamber identified, consistently with earlier judgments of the court, a number of factors to be taken into account in assessing the proportionality under article 8 of the removal of non-settled migrants from a contracting state in which they have family members. Relevant factors were said to include the extent to which family life would effectively be ruptured, the extent of the ties in the contracting state, whether there were "insurmountable obstacles" in the way of the family living in the country of origin of the non-national concerned, and whether there were factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion: para 107.

43. It appears that the European court intends the words "insurmountable obstacles" to be understood in a practical and realistic sense, rather than as referring solely to obstacles which make it literally impossible for the family to live together in the country of origin of the non-national concerned. In some cases, the court has used other expressions which make that clearer … 'Insurmountable obstacles' is, however, the expression employed by the Grand Chamber; and the court's application of it indicates that it is a stringent test. In Jeunesse, for example, there were said to be no insurmountable obstacles to the relocation of the family to Suriname, although the children, the eldest of whom was at secondary school, were Dutch nationals who had lived there all their lives, had never visited Suriname, and would experience a degree of hardship if forced to move, and the applicant's partner was in full-time employment in the Netherlands: see paras 117 and 119."

24. Lord Reed went on to refer, at paragraph 44, to the fact that the July 2012 version of the Rules (which was applicable in that case, and is applicable in this) did not define the expression "insurmountable obstacles". With effect from July 2014, however, Appendix FM was amended by the addition of paragraph EX.2, which states –

"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."

25. Lord Reed concluded that that definition was consistent with the meaning given to the phrase by the decisions of the European Court of Human Rights. He therefore concluded that the meaning of the phrase under the 2012 version of the Rules was the same as it is now under paragraph EX.2. He continued:

"45. By virtue of paragraph EX.1(b), "insurmountable obstacles" are treated as a requirement for the grant of leave under the Rules in cases to which that paragraph applies. Accordingly, interpreting the expression in the same sense as in the Strasbourg case law, leave to remain would not normally be granted in cases where an applicant for leave to remain under the partner route was in the UK in breach of immigration laws, unless the applicant or their partner would face very serious difficulties in continuing their family life together outside the UK, which could not be overcome or would entail very serious hardship. Even in a case in which such difficulties do not exist, however, leave to remain can nevertheless be granted outside the Rules in 'exceptional circumstances', in accordance with the Instructions: that is to say, 'in circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate'."

26. Having considered the nature of the Rules and the Instructions given by the SSHD as to their application, Lord Reed concluded that they are compatible with Article 8, though of course a specific application of the Rules and instructions to the facts of a particular case may be open to challenge as incompatible with Article 8. He then went on to consider the case of an applicant whose immigration status is precarious:

"49. In Jeunesse, the Grand Chamber said, consistently with earlier judgments of the court, that an important consideration when assessing the proportionality under article 8 of the removal of non-settled migrants from a contracting state in which they have family members, is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be "precarious". Where this is the case, the court said, "it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8 ": para 108.

50. Domestically, officials who are determining whether there are exceptional circumstances as defined in the Instructions, and whether leave to remain should be granted outside the Rules, are directed by the Instructions to consider all relevant factors, including whether the applicant '[formed] their relationship with their partner at a time when they had no immigration status or this was precarious'. They are instructed, at para 3.2.7d: 'Family life which involves the applicant putting down roots in the UK in the full knowledge that their stay here is unlawful or precarious, should be given less weight, when balanced against the factors weighing in favour of removal, than family life formed by a person lawfully present in the UK.' That instruction is consistent with the case law of the European court, such as its judgment in Jeunesse. As the instruction makes clear, 'precariousness' is not a preliminary hurdle to be overcome. Rather, the fact that the family life has been established by an applicant in the full knowledge that his stay in the UK was unlawful or precarious affects the weight to be attached to it in the balancing exercise.

51. Whether the applicant is in the UK unlawfully, or is entitled to remain in the UK only temporarily, however, the significance of this consideration depends on what the outcome of immigration control might otherwise be. For example, if an applicant would otherwise be automatically deported as a foreign criminal, then the weight of the public interest in his or her removal will generally be very considerable. If, on the other hand, an applicant—even if residing in the UK unlawfully—was otherwise certain to be granted leave to enter, at least if an application were made from outside the UK, then there might be no public interest in his or her removal. The point is illustrated by the decision in Chikwamba v Secretary of State for the Home Department."

52. It is also necessary to bear in mind that the cogency of the public interest in the removal of a person living in the UK unlawfully is liable to diminish—or, looking at the matter from the opposite perspective, the weight to be given to precarious family life is liable to increase—if there is a protracted delay in the enforcement of immigration control. …"

27. I refer to Chikwamba v SSHD [2008] UKHL 40 later in this judgment.

The judicial review proceedings:

28. The claim for judicial review challenged the SSHD's decision of 2^nd May 2013 and in particular contended that removal of Mrs Kaur to India would breach her human rights and the human rights of her family. The grounds for judicial review contended that the SSHD, in what was said to be "the short and inadequate" notice of decision, had failed to give proper weight to a number of matters: Mrs Kaur's strong family and private life established in the UK; the status of Mr Singh as a British citizen, and the negative impact upon him of the refusal of leave to remain for Mrs Kaur; Mr Singh's established life and work record in the UK; the need to apply a common sense approach to Mrs Kaur's application for leave to remain; the evidence of Mrs Kaur's circumstances in India, as indicated in the letter of 7^th February 2013; and the fact that Mrs Kaur had lost all social, cultural and family ties to India. Although additional points were initially advanced, by the time of the hearing before the Deputy Judge the claim was put on three grounds, namely that the SSHD had –

i) erred in concluding that there were no insurmountable obstacles to Mrs Kaur and Mr Singh continuing their family and private life outside the UK;

ii) erred in concluding that Mrs Kaur did not meet the requirements of paragraph 276ADE(vi);

iii) failed properly to assess whether Mrs Kaur's circumstances were exceptional, such that she should have been granted leave to remain outside the Rules.

29. The SSHD's Detailed Grounds of Defence responded to the submissions made on Mrs Kaur's behalf and submitted that judicial review should be refused.
30. In her judgment given on 28^th January 2015, the Deputy Judge summarised the submissions made on each side as to the three principal issues, which for convenience I shall refer to as the insurmountable obstacles issue, the no ties issue and the exceptional circumstances issue. The Deputy Judge, without making any specific finding, acknowledged there may not have been any application made on behalf of Mrs Kaur in 2010 "although there may have been a misconception by both Mr Singh and Mrs Kaur in that respect". She referred to the relevant Immigration Rules, which I have quoted above. She referred to the case law which had been cited to her. She observed that there was no disagreement between the parties as to the test to be applied in relation to exceptional circumstances: it was as stated in Shahzad (Pakistan) [2014] UKUT 85 (IAC), namely –

"Where an area of the Rules does not have an express mechanism, the approach in Nagre and Gulshan should be followed: ie, after applying the requirements of the Rules, only if there may be arguably 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."

31. With every respect to the Deputy Judge, it seems to me that in parts of her judgment she overlooked the fact that the decision letter of the 2^nd May 2013 referred to the enclosed Notice, and she criticised the SSHD for failing to refer to a particular point in one of those documents when it had been dealt with in the other document. However, I do not think that anything turns on that, and the Deputy Judge's reasons can be read as applying to both documents collectively. She reached the following conclusions.
32. In relation to the insurmountable obstacles issue, the judge quoted the reference in the decision letter to "a degree of hardship and inconvenience". She said that –

"Neither the defendant's letter nor the Notice of Decision referred to the practical possibilities of the claimant and her husband relocating to India, by reference to their respective ages, employment, accommodation or financial means".

The Deputy Judge added that the supplementary letter of 25^th April 2014 did not refer to insurmountable obstacles at all. She noted the submission on behalf of Mrs Kaur that Mr Singh's indefinite leave to remain had been granted in 2011 because of the strength of his connections in the UK and said that –

"Added to that is the fact that accompanying Mrs Kaur back to India on any basis other than a temporary one would – common sense seems to dictate – involve the practical consequence and reality that Mr Singh would have to leave his relatively well paid job in the United Kingdom and home here (which I note is owned by his employers) after 18 years in this country, and having recently been granted not just indefinite leave to remain but also British citizenship."

The Deputy Judge therefore found that the SSHD's decision that it was reasonable to expect Mrs Kaur and Mr Singh to continue their family life and private lives outside of the UK was flawed. She said that the SSHD had –

"… failed to give any reasons for her conclusion that there were no insurmountable obstacles to the claimant and her husband continuing their relationship were Mrs Kaur to return to India, and omitted to mention any consideration of factors relating to the practical possibilities of their relocation there."

33. As to the no ties issue, the Deputy Judge referred to Ogundimu. She observed that in the decision letters and Notice of Decision the SSHD had not expressly considered Mrs Kaur's family and social ties in India, which she described as

"a curious omission bearing in mind that all Mrs Kaur's close family members - her husband, her adult daughter, her adult son and her grandson – are now in the United Kingdom."

The Deputy Judge said that the SSHD had failed to demonstrate that she had taken account of significant evidential matters which contradicted the view that Mrs Kaur would be able to return to India and adapt to living there with little disruption:

"The defendant's decision made no reference at all to the claimant's social or family ties in India; indeed, none were indicated by the claimant with the exception of her mother in law who, I understand, is now deceased. On the evidence this claimant's social and family ties are stronger in this country than in India."

34. The Deputy Judge therefore found that the SSHD's decision on this issue was flawed because she had failed to give adequate reasons for the conclusion that Mrs Kaur had lost all ties to her country of origin, had failed to make a rounded assessment of all relevant circumstances, and, by referring only to linguistic and cultural ties of the claimant, had omitted to refer to any consideration to factors such as social or family ties.
35. As to the exceptional circumstances issue, the Deputy Judge concluded that the SSHD had directed herself correctly in this regard, and was not in error, or irrational, in her finding that there were no exceptional circumstances.
36. The Deputy Judge accordingly found for the SSHD on the exceptional circumstances issue, but granted the claim for judicial review, and quashed the SSHD's decision, because of the flawed treatment of the insurmountable obstacles and no ties issues.

The appeal:

37. The SSHD advances five grounds of appeal against the Deputy Judge's decision. First, that the judge was wrong to conclude that the SSHD had failed to give proper consideration to the insurmountable obstacles issue. It is submitted that Mrs Kaur had failed to provide sufficient evidence to demonstrate that there were any insurmountable obstacles. Secondly, the judge was wrong to say that the SSHD's decision was flawed because it did not take into account Mr Singh's inability to find work in India: that matter had not been raised in the judicial review pleadings. Thirdly, the judge had failed to appreciate that the insurmountable obstacles test sets a high threshold, had wrongly applied a test of whether it was "practicably possible" for Mr Singh to return to India, and had wrongly focused on Mr Singh's life in the UK or in India rather than on the comparison between the family life in India and the family life in the UK. Fourthly, the judge was wrong to find that the SSHD had failed to take into account the lack of Mrs Kaur's family or social ties to India. The SSHD was correct to focus on the wider circumstances, including the fact that Mrs Kaur had lived in India until the age of 46 and, in this country, continued to be connected to Indian language and culture amongst the Indian community in the area where she is living. Lastly, the judge had erred in law in her approach to the no ties issue, by wrongly carrying out a balancing exercise between the respective ties to the UK and to India of Mrs Kaur, and had failed to recognise the high threshold set by the exacting test.

The Respondent's Notice:

38. By a Respondent's Notice filed on 13^th April 2018, and therefore well over three years outside the time limit prescribed by the CPR, Mrs Kaur seeks to uphold the judge's decision for the reasons which the judge gave, and/or for three additional reasons: first, that in the light of recent case law – in particular, Agyarko and MM (Lebanon) v SSHD [2017] UKSC 10 - the SSHD took an incorrect approach to the assessment of exceptional circumstances; secondly, that in assessing proportionality, the SSHD failed to take into account her own delay in issuing a decision upon the initial claim that Mrs Kaur should have leave to remain; and thirdly, that applying the ratio in Chikwamba the SSHD should have found that there were exceptional circumstances justifying a grant of leave to remain. The necessary long extension of time for filing that Notice was granted on 23^rd April 2018 on the basis that no objection had been filed by the SSHD within the time limit stipulated.
39. Mr O'Brien submits that the SSHD did not receive the letter from the court inviting any objection to the application for an extension of time. That is unfortunate, and I do not doubt that the SSHD would have put forward objections if the letter had been received and considered. The fact is, however, that no objections were raised within the time limit, and no subsequent application has been made to set aside the grant of the extension of time.
40. There is however a separate issue – to which I return below - as to the application on behalf of Mrs Kaur for permission to rely on fresh evidence in support of matters raised in her Respondent's Notice. The application relates to a bundle of documents provided by the SSHD in response to a Subject Access Request made in late March 2018 by Mrs Kaur's solicitors. Mr Saini, for Mrs Kaur, submits this is relevant to the issue of unreasonable delay in making a decision on Mrs Kaur's initial application, and to the question raised by Chikwamba as to whether an application for entry clearance made by Mrs Kaur from outside the UK would have been successful. He argues that the documents are documents which the SSHD should in any event have disclosed. Mr O'Brien resists that application, contending that the documents have only become relevant (if at all) as a result of a matter raised by Mrs Kaur very late in the appeal proceedings, and that the application should be refused on Ladd v Marshall principles because the evidence would have been available at the time of the hearing before the Deputy Judge if Mrs Kaur's representatives had made their Subject Access Request at that time.
41. In Chikwamba, the SSHD's policy, as recorded in her Asylum Policy Instruction, Consideration of Article 8 Family Life Claims, was that in cases where there was a procedural requirement under the Rules requiring a person to leave the UK and make an application for entry clearance from outside the UK, such a person should return home and make an application for entry clearance from there:

"In such a case, any interference would only be considered temporary (and therefore more likely to be proportionate). A person who claims that he will not qualify for entry clearance under the rules is not in any better position than a person who does qualify under the rules - he is still expected to apply for entry clearance in the usual way, as the entry clearance officer will consider article 8 claims in addition to applications under the rules."

42. Lord Brown, with whom the other Law Lords agreed, accepted that it would in some cases be reasonable and proportionate to follow that policy. He went on, however, to say at paragraph 44:

"I am far from suggesting that the Secretary of State should routinely apply this policy in all but exceptional cases. Rather it seems to me that only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad."

Mrs Kaur understandably relies on that statement.

43. It must however be noted that the facts in Chikwamba were striking. The claimant was a Zimbabwean national. In June 2002 her asylum claim and leave to enter were refused. Her removal was however suspended because of deteriorating conditions in Zimbabwe. She then married a Zimbabwean man who had earlier been granted asylum in this country, and in April 2004 a daughter was born to them. In November 2004 the bar on forced removals to Zimbabwe was lifted. The claimant appealed against the Secretary of State's refusal of her claim that removal to Zimbabwe would breach her Article 8 right to respect for her family life. The issue was whether she should be required to return to Zimbabwe in order to apply from there for permission to rejoin her husband. It was accepted that he could not return to Zimbabwe. It was found by the adjudicator that conditions in Zimbabwe would be "harsh and unpalatable". The facts were such that the claimant would have "every prospect of succeeding" if she made an application from Zimbabwe for permission to re-enter and remain in this country. However, if the claimant had to return to Zimbabwe her child would either have to face those unpalatable conditions for a time, or be separated from her mother. In those circumstances, Lord Brown said at paragraph 46:

"is it really to be said that effective immigration control requires that the claimant and her child must first travel back (perhaps at the taxpayers' expense) to Zimbabwe, a country to which the enforced return of failed asylum seekers remained suspended for more than two years after the claimant's marriage and where conditions are 'harsh and unpalatable', and remain there for some months obtaining entry clearance, before finally she can return (at her own expense) to the United Kingdom to resume her family life which meantime will have been gravely disrupted? Surely one has only to ask the question to recognise the right answer."

44. I note that in Hayat v SSHD [2011] UKUT 444 (IAC), Upper Tribunal (Lord Menzies and UT Judge PR Lane, as he then was) said:

"23 The significance of Chikwamba, however, is to make plain that, where the only matter weighing on the respondent's side of the balance is the public policy of requiring a person to apply under the rules from abroad, that legitimate objective will usually be outweighed by factors resting on the appellant's side of the balance.

24 Viewed correctly, the Chikwamba principle does not, accordingly, automatically trump anything on the State's side, such as a poor immigration history. Conversely, the principle cannot be simply "switched off" on mechanistic grounds, such as because children are not involved, or that (as here) the appellant is not seeking to remain with a spouse who is settled in the United Kingdom."

With every respect to the Upper Tribunal, I do not think that Lord Brown's words in Chikwamba justify the inclusion of the word "usually" in paragraph 23 of their decision.

45. I have quoted in paragraph 26 above the passage in which Lord Reed (at paragraph 51 of his judgment in Agyarko) referred to Chikwamba. It is relevant to note that he there spoke of an applicant who was "certain to be granted leave to enter" if an application were made from outside the UK, and said that in such a case there might be no public interest in removing the applicant. That, in my view, is a clear indication that the Chikwamba principle will require a fact-specific assessment in each case, will only apply in a very clear case, and even then will not necessarily result in a grant of leave to remain.

The submissions summarised:

46. I am grateful to both counsel for their written and oral submissions, which I summarise as follows.
47. On the insurmountable obstacles issue, Mr O'Brien submits that Mrs Kaur had failed to provide sufficient evidence to show that there were any insurmountable obstacles to her continuing her family life with Mr Singh in India, and that the Deputy Judge was therefore wrong to conclude that the SSHD had failed properly to consider this issue. The evidence was principally concerned with the life of Mrs Kaur and Mr Singh in the UK, with particular reference to the length of time Mr Singh has been in this country and his status as a British citizen, and Mrs Kaur's solicitors had not put forward evidence of insurmountable obstacles to family life being continued in India. The specific assertion that Mr Singh would be unable to work in India, and that he and Mrs Kaur would therefore be unable to support themselves, had not been pleaded in the judicial review proceedings (it was first raised in the pre-action protocol letter), and was in any event not backed up by any evidence: the evidence related to Mr Singh's employment position in this country, and was silent as to his ability to support himself and his wife in India, whether by working or by relying on a pension from his UK employment. The test in paragraph EX.1 sets a high threshold, and the Deputy Judge wrongly focused on whether a return to India was practically possible instead of considering whether there were any insurmountable obstacles to it.
48. Mr Saini's overriding submission is that the SSHD had failed to provide sufficient reasons for her adverse decision on Mrs Kaur's application, and that the Deputy Judge was entitled, and correct, to conclude that the decision was flawed. He submits on this issue that although the hearing of the judicial review preceded the decision of the Supreme Court in Agyarko, the Deputy Judge approached the issue of insurmountable obstacles in a manner consistent with that decision. He submits that the SSHD failed to answer the specific insurmountable obstacles which Mrs Kaur's solicitors had raised: the practical possibilities of a return to India required to be considered, but the SSHD's decision showed no reasoning on the issue.
49. On the no ties issue, Mr O'Brien submits that the Deputy Judge was wrong to assume, from the absence of specific reference, that the SSHD's decision was taken without any consideration of Mrs Kaur's assertion that she had no family or social ties in India. The SSHD was entitled to look at the wider picture, including the length of time Mrs Kaur had lived in India and her continuing contact with Indian language and culture, and to conclude that Mrs Kaur had not shown that she had no ties to that country. The Deputy Judge had failed to apply the exacting test which paragraph 276ADE(vi) imposes, and had wrongly approached the issue by balancing the ties of Mrs Kaur to the UK and to India respectively.
50. Mr Saini submits that, in undertaking the rounded assessment required by the Rule (as explained in Ogundimu) the SSHD was plainly required to consider Mrs Kaur's lack of family and social ties to India, but – as the Deputy Judge correctly found - had failed to do so. Mrs Kaur's worship and voluntary work at a Sikh temple in Southall could not show any continued connection to India. The Deputy Judge had made an evaluative judgment and rounded assessment of all relevant factors as required by Ogundimu, Akpan and Herrera, was plainly aware that the test is an exacting one, and was entitled and correct to reach the conclusions she did.
51. As to the matters raised in the Respondent's Notice, Mr Saini submits that the Deputy Judge's decision should additionally be upheld because the SSHD adopted an unlawful approach to her assessment of the exceptional circumstances issue. The recent decisions of the Supreme Court in Agyarko and MM (Lebanon) show that the test of exceptional circumstances requires a proportionality assessment rather than a search for some compelling or exceptional reason. In addition, Mr Saini seeks to rely on fresh evidence which he submits would support the argument that the SSHD failed to consider Mrs Kaur's Legacy Scheme claim in 2011, and that such delay should have been taken into account by the SSHD when deciding whether there were exceptional circumstances justifying a grant of leave to remain outside the Rules. He particularly relies on Lord Reed's observations at paragraph 52 of his judgment in Agyarko, which I have quoted at paragraph 26 above. Finally, Mr Saini submits that the SSHD should have considered Chikwamba, and should have decided that Mrs Kaur would be certain to be granted leave to enter if she made an application from abroad, and that accordingly there was no public interest in removing her.
52. Mr O'Brien submits that this is a case concerned with precarious family life, and relies on observations of Lord Reed at paragraphs 56-57 of Agyarko, which I quote below. He accepts that a proportionality exercise requires a fair balancing of considerations, but submits that there are here no factors which are sufficiently strong or compelling to outweigh the public interest in immigration control. He denies that Mrs Kaur made a Legacy Scheme application. He resists the admission of the fresh evidence, as I have indicated at paragraph 40 above, and submits that this court should not endeavour now to carry out a hypothetical entry clearance exercise to determine whether an out of country application by Mrs Kaur would have succeeded at the material time.

Discussion:

53. In relation to both the insurmountable obstacles issue and the no ties issue, it is in my view important to keep in mind the paucity of evidence and information provided by Mrs Kaur in support of her application for leave to remain. At paragraph 7 above, I have quoted or summarised the material passages in the letter of 7^th February 2013 by which her solicitors put forward her application. Those passages contained the matters which Mrs Kaur relied upon in support of her application, and which the SSHD was required to consider in making a decision as to whether to grant the application.
54. Mrs Kaur's application asserted that there were insurmountable obstacles to family life continuing outside the UK because Mr Singh had established a life in this country over many years, had acquired British citizenship, had worked and contributed to society, and could not reasonably be expected to return to India. It also asserted that Mrs Kaur had integrated herself into British society and did not have any means of support in India. The evidence in support of those assertions was however limited to features of the lives of Mrs Kaur and Mr Singh in the UK, and it seems to me that no real attempt was made to provide a foundation for the assertions that there were insurmountable obstacles to their family life in India. Nothing was put forward in support of the assertion that Mrs Kaur would have no means of support in India. That was in my view a significant omission. In the circumstances of this case, Mrs Kaur could and should have explained where she had lived and how she had supported herself and her children in India after Mr Singh came to this country, and why her situation would be different if she now had to return. Nor was any attempt made to explain what the financial position of the couple would be if they returned to India; again a significant omission, when on the face of it Mr Singh (even if it were correct that he could not obtain work) would have a pension from his employment in this country. If the details of these matters were clearly in Mrs Kaur's favour, her solicitors should have had no difficulty in explaining them. If the full picture was rather more complicated than her solicitors' letter suggested, then Mrs Kaur cannot complain that her assertion of an inability to support herself in India was not considered sufficient to establish an insurmountable obstacle.
55. With every respect to the Deputy Judge, she was in my judgment wrong in those circumstances to criticise the SSHD for failing to consider matters which had not been sufficiently raised by Mrs Kaur in her application. Moreover, in focusing upon the practical possibilities of a return to India, it seems to me that the Deputy Judge rather lost sight of the stringent requirement of paragraph EX.1 that an applicant in Mrs Kaur's position must show insurmountable obstacles to family life continuing outside the UK. Of course, the Deputy Judge did not have the advantage of the clarification of the law by the decision in Agyarko. She was correct to take the approach that it was not necessary for Mrs Kaur to show obstacles which were literally impossible to surmount; but she was in error if she thought that the reference in Gulshan to "the practical possibilities of relocation" was intended to water down the test of insurmountable obstacles to the point where a mere practical difficulty would suffice.
56. In any event, the correct approach has now been clarified by Agyarko, and it is in my judgment clear that the Deputy Judge did not consider whether Mrs Kaur and Mr Singh would face very serious difficulties which could not be overcome or would entail very serious hardship. If she had considered that issue, she would surely have concluded that the matters put forward by Mrs Kaur could not suffice to show insurmountable obstacles to her continuing her family life with her husband in India. The matters put forward certainly provided good reasons why both would much prefer to continue their family life in this country; but they did not come close to establishing any insurmountable obstacle which would meet the stringent test in paragraph EX.1(b). In the recent case of R (Mudibo) v SSHD [2017] EWCA Civ 1949 this court has emphasised the distinction, in this context, between evidence and mere assertion. The facts and decision in Jeunesse, referred to by Lord Reed in the passages which I have quoted above, show how high the bar is set.
57. It follows that in my judgment, the SSHD's first ground of appeal succeeds: Mrs Kaur had not put forward anything more than a bare and insufficient assertion of insurmountable obstacles, and the Deputy Judge was wrong to find that the SSHD's decision was vitiated by a failure to give proper consideration to this issue. It was not irrational or unreasonable for the SSHD to decide that there were no insurmountable obstacles to Mrs Kaur and Mr Singh continuing their family life in India.
58. To the extent that the Deputy Judge based her decision on the claim that Mr Singh could not work in India, she was in my judgment wrong to do so, for two reasons: first, because that was not a matter which had been relied upon in the pleaded grounds for judicial review; and secondly, because in any event this was again a matter of assertion by Mrs Kaur, with no attempt to provide any evidence in support of it. The second ground of appeal therefore also succeeds.
59. The third ground of appeal also succeeds because the Deputy Judge, without the assistance of Agyarko, adopted an incorrect approach which failed to recognise the high threshold set by paragraph EX.1(b) and failed to consider whether Mrs Kaur had shown any very serious difficulties which either could not be overcome or would entail very serious hardship.
60. Turning to the no ties issue, it seems to me important to begin by stepping back and considering Mrs Kaur's position at the time of her application for leave to remain. She was then aged 53, and had been in the UK continuously for a little over 6 years since December 2006. She had lived in India for the whole of her childhood and adult life until her late forties, and had borne and raised her children there. For nearly a decade between 1997 and 2006 she had been a frequent visitor to the UK but had continued to live in India with her children despite the absence of her husband. Yet within 6 years of her taking up unlawful residence in this country, she was asserting that she had no ties to her home country. On the face of it, that was a surprising assertion. What had happened to her extended family, her friends and her neighbours in her former home? Had she completely turned her back on everything to do with India? Had she, in such a comparatively short period of her life, become a stranger to that country?
61. True it is that by the time of her application Mrs Kaur's immediate family – her husband, children and grandchildren – were all living in the UK; but as to her extended family, Mrs Kaur's application stated only that her mother-in-law had recently died and she had no remaining family ties in India. She had not explained what family she had previously had in India, or what had become of them. She had said nothing at all about friends in India. I have quoted at paragraph 15 above the list of considerations suggested by the Upper Tribunal at paragraph 125 of the judgment in Ogundimu. It is in my view clear that the solicitors' letter of 7^th February 2013 did not contain anything which could put Mrs Kaur in a strong position in relation to those considerations.
62. Although Mr Saini is critical of the SSHD's reference to Mrs Kaur's worship and voluntary work at her local Sikh temple, I do not accept his submission that those matters were irrelevant to the no ties issue. They show that this is not a case in which an applicant for leave to remain has abandoned all links to the language and culture of the country to which she would have to return. On the contrary, she had continued to embrace those links.
63. In those circumstances, the SSHD was in my view plainly entitled to decide that Mrs Kaur had failed to show that she had lost all ties to India: she had put forward no basis on which it could be said that she had become a stranger to that country. It would have been better if the SSHD had expressed her reasons rather more fully than she did, and it is understandable that the Deputy Judge was critical of the SSHD's failure to make specific reference to Mrs Kaur's assertion that she had no social or family ties in India. But once again, it is necessary to keep in mind the matters which Mrs Kaur had put forward and about which the SSHD had to make a decision. In giving her decision, the SSHD indicated that Mrs Kaur's ties to India were stronger than her ties to the UK, which in my view made it sufficiently clear that the claimed lack of ties to India had been considered and rejected. In those circumstances, the Deputy Judge was in my judgment wrong to find that the SSHD's decision was unlawful because of a failure to consider Mrs Kaur's lack of family and social ties to India or because of a failure to give adequate reasons. It follows that in my judgment the fourth ground of appeal succeeds.
64. Moreover, the no ties test is an exacting one. Its application does not simply involve a balancing of the respective ties to this country and to India, which is a matter for consideration outside the Rules if at all. The question is whether Mrs Kaur has no ties to India, and that question cannot be answered merely by pointing to the fact that her immediate family are all now in this country. With respect to the Deputy Judge, she approached this issue by balancing the ties of Mrs Kaur to the UK and to India respectively, but that was an incorrect approach. The fifth ground of appeal therefore succeeds.
65. I turn to the exceptional circumstances issue, and to the three matters advanced in the Respondent's Notice.
66. The first, based on the clarification of the law by recent decisions of the Supreme Court, is in my view a matter properly raised in the Respondent's Notice and on which Mrs Kaur is entitled to rely. In my judgment, however, it does not assist her. As I have indicated at paragraph 12 above, the SSHD made her decision on the basis that the test to be applied was whether a refusal of leave to remain would result in unjustifiably harsh consequences for Mrs Kaur or her family, such that it would not be proportionate. It does not seem to me that that test is materially different from the test which Mr Saini submits should be adopted in the light of Agyarko and MM (Lebanon).
67. In this regard, it is relevant to note what was said by Lord Reed in Agyarko at paragraphs 56-57:

"56 The European court's use of the phrase "exceptional circumstances" in this context was considered by the Court of Appeal in MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544 . Lord Dyson MR, giving the judgment of the court, said, at para 42:

"In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual's article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be 'exceptional') is required to outweigh the public interest in removal."

Cases are not, therefore, to be approached by searching for a unique or unusual feature, and in its absence rejecting the application without further examination. Rather, as Lord Dyson MR made clear, the test is one of proportionality. The reference to exceptional circumstances in the European case law means that, in cases involving precarious family life, "something very compelling … is required to outweigh the public interest", applying a proportionality test. The Court of Appeal went on to apply that approach to the interpretation of the Rules concerning the deportation of foreign criminals, where the same phrase appears; and their approach was approved by this court, in that context, in Ali.

57 That approach is also appropriate when a court or tribunal is considering whether a refusal of leave to remain is compatible with article 8 in the context of precarious family life. Ultimately, it has to decide whether the refusal is proportionate in the particular case before it, balancing the strength of the public interest in the removal of the person in question against the impact on private and family life. In doing so, it should give appropriate weight to the Secretary of State's policy, expressed in the Rules and the Instructions, that the public interest in immigration control can be outweighed, when considering an application for leave to remain brought by a person in the UK in breach of immigration laws, only where there are "insurmountable obstacles" or "exceptional circumstances" as defined. It must also consider all factors relevant to the specific case in question, including, where relevant, the matters discussed in paras 51–52 above. The critical issue will generally be whether, giving due weight to the strength of the public interest in the removal of the person in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control."

68. In Mrs Kaur's case, her relationship and family life with her husband were of course formed long before either of them came to the UK, and so this is not a case of a family life formed when her immigration status was unlawful or precarious. There is however also a strong public interest in maintaining immigration control where an immigrant rejoins a spouse who has earlier been given leave to remain in the UK, but does not take proper steps to obtain the necessary entry clearance or right to remain. A strong or compelling claim is in my view necessary to outweigh that public interest. In the circumstances of this case, and for the reasons given above in discussing the insurmountable obstacles and no ties issues, the SSHD was entitled to conclude that Mrs Kaur had not shown any strong or exceptional claim. The Deputy Judge adopted a correct approach, and was not wrong to reject this aspect of Mrs Kaur's claim.
69. The other two matters raised in the Respondent's Notice – relating to the alleged failure of the SSHD to determine Mrs Kaur's Legacy Scheme application, and to Chikwamba – seek to rely upon fresh evidence. In addition, the Chikwamba point was not argued below, and is therefore a new issue raised for the first time at a very late stage of the appeal proceedings. It is necessary to begin by considering a procedural issue.
70. CPR 52CPD.8 requires an appeal notice to be filed by a respondent who seeks to appeal against any part of the order below or seeks a variation of the order. In such a case, permission to appeal is required. In the circumstances of this case, Mrs Kaur is not seeking to appeal against, or vary, the order made by the Deputy Judge: she is putting forward an additional ground on which the Deputy Judge should also have made that order. The provisions of 52CPD.8 therefore do not directly apply. Nonetheless, Mrs Kaur's wish to argue a new point comes within the broad principle stated, for example, in the following passage from the judgment of Widgery LJ in Wilson v Liverpool Corporation [1971] 1 WLR 302 at p307:

"If we were now to allow the appeal to proceed on this basis it would inevitably mean that the matter would have to be sent back to the tribunal for further findings of fact. Counsel differed in their views as to how lengthy and expensive that further hearing might be, but that there would have to be a further hearing is beyond doubt. It seems to me therefore that this case is within the well-known rule of practice that if a point is not taken in the court of trial, it cannot be taken in the appeal court unless that court is in possession of all the material necessary to enable it to dispose of the matter finally, without injustice to the other party, and without recourse to a further hearing below."

71. Mrs Kaur is seeking (in relation to Chikwamba) to argue a point which could have been but was not raised below, and in relation to which the court below would have received evidence and made findings of fact. In such circumstances, in accordance with the principle stated in that passage, she requires not only the extension of time which she has obtained but also permission to argue this fresh point. It is relevant to consider what the position would be if the order below had been expressed (as it might have been) in different terms, such that Mrs Kaur would have sought a formal variation of part of it if she succeeded on the new Chikwamba point. In that situation, she would have been required to file an appeal notice in order to raise her new point, and this court would have been able to consider whether permission should be given to argue that new point. It would to my mind be highly unsatisfactory if this court had no control over the raising and arguing of that new point simply because the form of the order made below permits Mrs Kaur to raise the point by way of a Respondent's Notice rather than an appeal notice. For reasons which will become apparent, I would exercise the court's discretion to refuse permission to argue this fresh point.
72. In relation to both the second and third points raised in the Respondent's Notice, Mr Saini's submissions are in any event dependent upon this court admitting as fresh evidence the bundle of documents which have very recently been obtained by Mrs Kaur's solicitors from the SSHD. In my judgment, that application cannot succeed in the light of the Ladd v Marshall principles, for the simple reason that all this material would have been available in the court below if Mrs Kaur had asked for it and had put forward arguments which made its disclosure relevant. Moreover, in relation to the issue whether Mrs Kaur in fact made a Legacy Scheme application, it does not seem to me that anything in the material (which we have considered de bene esse) is capable of providing any cogent evidence in Mrs Kaur's favour. Further, on the Chikwamba issue, the material raises as many questions as Mr Saini suggests it answers, and this court cannot realistically be expected to find within it all the evidence which would have been needed by the Deputy Judge if she had been asked to consider the prospects of success of a hypothetical out of country application by Mrs Kaur for leave to enter. In short, the proposed fresh evidence was available below; has been raised far too late in the appeal proceedings; and in any event does not appear capable of assisting Mrs Kaur's case.
73. I would therefore refuse to admit the fresh evidence and in consequence would reject the second and third points raised in the Respondent's Notice.
74. As I have indicated, this appeal relates to the application of rules which have been amended during the lengthy period which has elapsed since the SSHD made the relevant decision. It has been necessary to consider the facts as they existed at the time of the decision, not the facts as they may now be. Whatever sympathy one may feel for the present situation of Mrs Kaur and her husband, the proper application of those rules to those facts leads, in my judgment, to the conclusion that the appeal must succeed and the decision of the Deputy Judge must be set aside. That result may seem harsh, and I recognise that it will no doubt come as a bitter blow to Mrs Kaur and to Mr Singh; but it is the decision to which I feel bound to come.

Lord Justice Richards:

75. I agree.

Lady Justice Arden:

76. I also agree.