Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 153
	OPINION OF LORD EMSLIE in Petition of L E (TURKEY) (AP) Petitioner for Judicial Review of a decision by the Secretary of State for the Home Department dated 27 July 2010 ­­­­­­­­­­­­­­­­­________________

Petitioner: Komorowski; Morisons LLP

Respondent: K. Campbell; Office of the Advocate General for Scotland

18 November 2010

Introduction
[1] The petitioner is a Turkish national who, in March 2005, was granted leave to enter the UK where his then spouse was already resident. That leave having expired in March 2007, the petitioner has now overstayed it by nearly four years. On 2 April 2008 he applied to the respondent Secretary of State for leave to remain in the UK on grounds connected with the establishment of a business. In so doing, he relied inter alia on the EEC-Turkey Association Agreement which pre-dated the UK's accession to the Community by a number of years. In terms of Article 41(1) of the Additional Protocol to that Agreement, commonly referred to as the "standstill clause", the UK was and is barred from imposing conditions for business applicants less favourable than those which were in force when the UK became bound by the Agreement in 1973. The standstill clause reads as follows:

"41(1) The contracting parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services."

[2] The primary issue in these proceedings for judicial review is whether, in refusing the petitioner's application of 2 April 2008, the respondent approached it on a basis more restrictive than would have been appropriate in 1973 and thereby acted in contravention of the standstill clause. Two initial refusals on 22 September 2008 and 26 June 2009 proceeded on principal grounds from which the respondent subsequently departed, and it was ultimately accepted that the petitioner should have the benefit of the standstill clause and that his application should be determined along 1973 lines. On 1 July 2010, however, further representations were advanced by the petitioner to the effect that to remove him from the UK would unlawfully interfere with his right to family life under article 8 of the European Convention on Human Rights. This additional claim was founded on a developing relationship, and recent co-habitation, with a lady whom the petitioner intended to marry once her divorce was finalised.

[3] Further refusals of the application were thereafter notified by the respondent on 13 and 27 July 2010, both on establishment and Human Rights grounds, and it is now the last of these refusals which the petitioner seeks to have reduced in the present proceedings. His application for judicial review addresses, not only the primary issue under the standstill clause narrated above, but also the issue more recently raised under article 8 of the Convention. The respondent, for her part, maintains that on both of these issues the refusal of 27 July 2010 was well-founded. In the paragraphs which follow, it will be convenient to address each of these issues in turn.

The standstill clause issue
(i) Submissions for the petitioner

[4] In a clear and careful presentation, counsel for the petitioner contended that the standstill clause conferred direct and enforceable rights which would be infringed if his client's application was, to any extent, treated on a more restrictive basis today than would have been the case in 1973. The relevant clause had been authoritatively interpreted by the European Court of Justice in R v SSHD, ex parte Savas 2000 1 WLR 1828 as striking at all rules, measures, policies, instructions or interpretations which, in design or effect, imposed conditions more onerous than had previously applied. Key paragraphs of the court's opinion were in the following terms:

"46 As its very wording shows, this provision lays down clearly, precisely and unconditionally, an unequivocal "standstill" clause, prohibiting the contracting parties from introducing new restrictions on the freedom of establishment as from the date of entry into force of the Additional Protocol.

47 The court has already held that article 53 of the EC Treaty ..., prohibiting member states from introducing any new restrictions on the right of nationals of other member states to establish themselves in their territories, contains an obligation ... which amounts in law to a duty not to act. The court has held that such an express prohibition ... is legally complete in itself and therefore capable of producing direct effects on the relations between member states and individuals. ...

48 Since the wording of article 41(1) of the Additional Protocol is almost identical to that of article 53 of the EC Treaty, it must be regarded as being directly applicable for the same reasons. However, article 41(1) of the Additional Protocol prohibits the introduction of new national restrictions on the freedom of establishment and right of residence of Turkish nationals as from the date of entry into force of that Protocol in the host member state. It is for the national court to interpret domestic law for the purposes of determining whether the rules applied to the applicant in the main proceedings are less favourable than those which were applicable at the time when the Additional Protocol entered into force.

......

69 It should also be noted that the "standstill" clause in article 41(1) of the Additional Protocol precludes a member state from adopting any new measure having the object or effect of making the establishment, and, as a corollary, the residence of a Turkish national in its territory subject to stricter conditions than those which applied at the time when the Additional Protocol entered into force with regard to the member state concerned."

[5] In the earlier case of Bulk Oil (Zug) AG v Sun International Ltd and Another 1986 COMER 732, the European Court of Justice confirmed that even a non-legal policy having practical consequences was capable of engaging Community law prohibitions. In the context of a prohibition on the UK from imposing new quantitative restrictions or measures having equivalent effect on exports to Israel, the Court (at paragraph 9 of its decision) said this:

"It should first be pointed out that the implementation of a policy whose specific object is to impose quantitative restrictions on exports to non-member countries must be regarded as a measure having an effect equivalent to such restrictions. Such a policy or practice does not escape the prohibitions laid down by Community law simply because it is not incorporated in decisions binding on undertakings. Even measures adopted by the government of a member State which do not have binding effect may be capable of influencing the conduct of undertakings in that State and thus of frustrating the aims of the Community ..."

[6] Against that background, it was said, what mattered was substance and effect rather than form; the petitioner was entitled to protection against any new restriction, however arising, which offended against the standstill clause; and there was here no doubt that the Immigration Directorates' Instructions current from June 2009 onwards, which must be taken to have informed the refusal complained of, were materially less favourable to an "overstayer" in the petitioner's position than had previously been the case. In summary, these Instructions proceeded on the basis that a person overstaying leave of entry by more than 28 days, but claiming establishment in business, should "normally" have his application refused, and that only "exceptional circumstances" would justify a different outcome. Favourable decisions in such cases were additionally discouraged by requirements for reasons to be stated and, from February 2010 onwards, for approval to be sought from a senior caseworker.

[7] The relevant paragraphs of the Instructions of 18 May 2010, which were current as at the date of the refusal complained of, read inter alia as follows:

"4.2.4. Are there any general considerations?

There are a number of circumstances in which adverse immigration status will prevent the applicant from taking the benefit of the standstill clause - see section 2.

However, there may be occasions where an applicant's conduct does not amount to fraud/abuse such that they should be excluded from the standstill clause but their conduct nevertheless is penalised under the terms of the 1973 rules, which stated that applications should be considered on merits taking account of any general considerations and relevant facts. This includes but is not limited to, any failure to observe time limit and conditions of leave. Only in exceptional circumstances will an applicant who has breached immigration law, but who is allowed to take the benefit of the standstill clause, be allowed to succeed under the 1973 business provisions.

Where it is decided to grant leave in such cases reasons for doing so despite the applicant breaching immigration law should be given in the grant letter.

Specific guidance on overstayers is available below at section 4.2.4.1. ...

4.2.4.1. Overstayers

Applicants who have overstayed but are also guilty of fraud/abuse in other regards such as having already established a business in breach of the conditions or having obtained their previous leave by deception, should be denied the benefit of the standstill clause on these other grounds. See section 2 for further guidance.

Applicants who overstay by less than 28 days should be considered under the 1973 After Entry business provisions on the merits of their business.

Applicants who overstay by more than 28 days and then make an application to establish in business should be considered under the 1973 After Entry business provisions (paragraph 4 and 21 of HC 510) and normally be refused leave to remain in accordance with paragraph 4 of HC 510 on the basis that they have only been able to apply to establish in business by breaching immigration law. Where an applicant has overstayed for more than 28 days, but case workers believe that the circumstances of the case nonetheless merit a positive decision, such cases should be referred to a senior caseworker prior to any final decision. ..."

[8] In sharp contrast, the equivalent Instructions prior to June 2009 contained no such provisions. After (inaccurately) quoting paragraph 4 of HC 510 at Appendix A, and confirming that all circumstances of each individual case must be taken into account, the pre-2009 Instructions (at Appendix C, in parallel with Appendix B) contained the following further provision:

"Immigration History

In accordance with Paragraph 4 of HC 510 previous immigration history may be taken into account, and may point towards further investigation and exploration of particular aspects of the application. Evidence of fraudulent actions will determine which category the case falls into for consideration. However a "negative" history, including unlawful presence in the UK, cannot, in itself, be conclusive in refusing an application."

[9] This broadly mirrored the position which had earlier prevailed under paragraph 4 of HC 510 (originally the Immigration Rules of 1972) to the following effect:

"4. The succeeding paragraphs set out the main categories of people who may be given limited leave to enter and who may seek variation of their leave, and the principles to be followed in dealing with applications, or in initiating any variation of their leave. In deciding these matters account is to be taken of all the relevant facts; the fact that the applicant satisfies the formal requirements of these rules for stay, or further stay, in the proposed capacity is not conclusive in his favour. It will, for example, be relevant whether the person has observed the time limit and conditions subject to which he was admitted; whether in the light of his character, conduct or associations it is undesirable to permit him to remain; whether he represents a danger to national security; or whether, if allowed to remain for the period for which he wishes to stay, he might not be returnable to another country."

[10] With these considerations in mind, the petitioner's application had evidently been treated on a basis more restrictive than had ever applied prior to June 2009. Since the relevant Instructions were in the nature of internal guidance, it was understandable that their terms received no express mention in the respondent's refusal letter of 27 July 2010. However, it was inevitable that such Instructions had informed the respondent's approach to paragraph 4 of the 1972 Rules, and the petitioner's application had thus had to face the illegitimate new hurdle of "normal refusal" in the absence of "exceptional circumstances". This was not a fanciful or theoretical disadvantage which might be ignored, but a real and material contravention of the standstill clause, and it could not matter whether the new restriction was treated as having arisen independently in its own right, or alternatively through the medium of a purported interpretation of paragraph 4 of the 1972 Rules.

[11] It had to be conceded that no further evidence of the UK immigration practice current in 1973 was available for comparison with the present (post-June 2009) regime. It was, however, enough for the petitioner to show that the terms of the Instructions which applied in his case were demonstrably more restrictive than the terms of the pre-2009 equivalent or indeed of paragraph 4 of the 1972 Rules. Under section 3(2) of the Immigration Act 1971, the respondent's obligation was from time to time to promulgate rules "... as to the practice to be followed" in determining applications in this field, and a reasonable inference was that any significant practice would have found expression in such rules. On this basis, the tactical burden of proof was transferred to the respondent, having special knowledge in this area, to draw attention to any different and unexpressed practice current in 1973. But she had not done so. On the contrary, her Answers merely asserted that, as a matter of interpretation, the Instructions from June 2009 onwards introduced no new restriction by comparison with what had gone before.

[12] If, however, these contentions did not find favour with the court, and factual evidence of any 1973 practice were thought to be indispensable to a decision in this case, then by way of fallback the petitioner would seek the appointment of a Second Hearing to enable that evidential need to be addressed. But for the reasons given that should not be necessary, and decree reducing the refusal complained of should now be granted.

(ii) The respondent's position

[13] On the strength of the decision in Savas, counsel for the respondent accepted that the effect of the standstill clause was to require the petitioner's application to be dealt with under the Immigration Rules as they stood on 1 January 1973. It was now for this court to rule on the question whether that requirement had been complied with or not. Importantly, however, the European Court of Justice in Savas had "glossed" the standstill clause in referring to "measures", "conditions", "purpose" and "effect", whereas what the clause actually struck at was "new restrictions" which, according to counsel, must connote something having legal status such as a statutory impediment. No such formal impediment could be identified here, and the decision of 27 July 2010 had legitimately been based on the relevant paragraph of the Immigration Rules of 1972.

[14] The regulatory hierarchy, it was observed, started with the Immigration Act of 1971, progressing down to the (non-statutory) rules promulgated from time to time under section 3(2), and ultimately embracing the various Immigration Directorates' Instructions. While it was admittedly hard to see any basis on which purported Instructions addressed to caseworkers handling the petitioner's application could or should simply be ignored by the court, the fact remained that these contained only internal guidance of a discursive and advisory nature. Such instructions should not therefore be seen as derogating from or adding to the 1972 Rules under which the refusal of 27 July 2010 proceeded.

[15] For her part, the respondent had no evidence to show that any immigration practice in 1973 was more restrictive than the approach reflected in the 1972 Rules, or in any subsequent set of Instructions pre-dating June 2009. The court might thus reasonably proceed on the basis that, if any more restrictive practice had existed, that would in due course have been likely to appear in relevant Rules and/or Instructions.

[16] Here, the petitioner had not only overstayed his grant of leave for several years, committing a criminal offence in the process, but had started his business in the full knowledge that that was so and that his continued residential status in the UK was precarious. Overstay was a relevant and important adverse factor which received specific mention in paragraph 4 of the 1972 Rules, and it was significant that some of the other factors listed would prima facie be expected to prevent an application from succeeding. This closely resembled an "exceptional circumstances" test, and the court could not be satisfied that any new restriction had subsequently been introduced in contravention of the standstill clause.

[17] For all of these reasons, it was submitted that the refusal of 27 July 2010 had proceeded on proper grounds, and that the petitioner had failed to make out a case for its reduction. The respondent's second plea-in-law should therefore be sustained, and the orders sought in paragraph 6 of the petition should be refused.

(iii) Discussion

[18] I have reached the conclusion, ultimately without much hesitation, that the petitioner's contentions here are well-founded and must be sustained. On the authority of Savas, and ex concessu in this case, the standstill clause confers direct rights which may be enforced by an individual against an affected State. Savas again appears to me to vouch the proposition (any "gloss" in this context being authoritative) that new restrictions must not be allowed to affect applications in any form or to any material degree. And on comparing the June 2009 Instructions with what had gone before, it is to my mind impossible not to hold that a more restrictive approach was introduced at that time. In particular, by comparison with the previous regime whereby overstaying was merely a relevant and material factor to be accorded such weight as the circumstances deserved, the Instructions from June 2009 onwards established something in the nature of a presumption against the granting of applications in overstay cases. Such applications were now "normally" to be refused where a breach of immigration control was identified, and only "exceptional circumstances" might justify a grant. This apparent new presumption was further emphasised by requirements for a senior caseworker to be consulted before, and for reasons to be stated after, any decision to grant leave in an overstayer's case.

[19] It is true, as counsel for the respondent pointed out, that the promulgated Instructions are of a discursive and advisory nature, and that their status is non-statutory. In my judgment, however, these considerations do not take the respondent very far. The character of the pre-2009 Instructions was equally discursive and advisory, and even the 1972 Rules, laid before Parliament and approved by negative resolution, contained much advisory material and general discussion. What matters, as it seems to me, is that prior to June 2009 the relevant rules and guidance left it to the decision-maker to attach such weight to relevant factors including overstay as might be thought appropriate in the circumstances of a given case. No overt presumption then applied against an overstayer's application, whereas from June 2009 onwards that was no longer the case.

[20] The respondent's decision letter of 27 July 2010 did not, of course, make express reference to the terms of the relevant Instructions, bearing ex facie to proceed under paragraph 4 of the 1972 Rules. As counsel for the respondent very fairly accepted, however, such Instructions were clearly intended to be applied by caseworkers in a case of this kind, and would indeed have been applied here. Whether their effect went beyond an updated interpretation of the 1972 Rules was immaterial if that effect was to introduce a new restriction affecting the determination of the petitioner's case. A fair inference, in my judgment, is that that is precisely what happened, notwithstanding the somewhat economical terms of the decision letter itself.

[21] Taking all of these considerations into account, I am persuaded that the Immigration Directorates' Instructions from June 2009 onwards introduced a new restriction affecting overstayers in the petitioner's position, and that this constituted a justiciable contravention of the standstill clause. It can no doubt be maintained, on the respondent's behalf, that the petitioner commenced business in the full knowledge of his own long-term breach of immigration control, and consequently of the precarious nature of his continued residential status within the UK. In the exercise of an unfettered discretion, as appearing in relevant Rules and Instructions between 1972 and the early part of 2009, such considerations might well have been deemed sufficient to justify refusal of the application. But the point here is that from June 2009 onwards the former discretion was materially cut down, with refusal now being the norm unless "exceptional circumstances" could be identified.

Article 8 of the Convention
(i) The petitioner's submissions

[22] Counsel's contention was, quite simply, that having regard to his developing family relationship with a lady and her son, as confirmed by the affidavits accompanying the further representations submitted on 1 July 2010, the petitioner had established a family life in the UK which could not now lawfully be interfered with. The respondent had failed to address the proportionality of the proposed interference in a proper manner, even going so far as to suggest that the petitioner might be obliged to leave the country on a temporary basis in order to obtain correct entry clearance. The court should now review the matter for itself and conclude that refusal of the petitioner's application did indeed constitute a violation of his rights under article 8 of the Convention. As the House of Lords made clear in Huang v SSHD 2007 2 AC 167, this was not a situation in which any particular deference or respect was due to the respondent as the original decision-maker. In reviewing the refusal of 27 July 2010, the court must simply consider whether the petitioner's claimed right to family life under article 8 had in fact been violated. If the decision was not compatible with the petitioner's Convention rights, then the court must so hold.

[23] There were many factors in the petitioner's favour here and, although no special point was taken regarding the position of the lady or her son, the respondent had essentially conceded the establishment of a family life. Article 8 was thus engaged, and the remaining question was whether interference could properly be justified by reference to the considerations set out in article 8(2). In the petitioner's submission no such justification could be held to exist, especially in circumstances where the likelihood of success in a new application for entry clearance was apparently assumed by the decision-maker. As stated at pages 2 and 3 of the refusal letter,

"... there are no insurmountable obstacles for you to leave the United Kingdom and continue your relationship in Turkey or return to the United Kingdom after gaining the correct entry clearance. ... For the reasons given above, it is not accepted that removal would interfere with your private and family life, and it is considered that any interference in private and family life would constitute only a minimal and temporary interference, which would be lawful, in pursuit of and proportionate to the legitimate aims of maintaining and effective immigration control."

[24] The problem here for the respondent was that this sort of approach had been disapproved by the House of Lords in Chikwamba v SSHD 2008 1 WLR 1420, and more recently by the Court of Appeal in MA (Pakistan) v SSHD 2009 EWCA Civ 953. Regarding the validity of a policy favouring removal from the UK in order to pursue a fresh application for entry clearance which was likely to be granted, Lord Brown of Eaton-under-Heywood (with whom all other members of the committee agreed) said, at paragraphs 44 and 46,

"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. ... Better surely that in most cases the article 8 claim be decided once and for all at the initial stage. If it is well founded, leave should be granted. If not, it should be refused.

... No one apparently doubts that, in the longer term, this family will have to be allowed to live together here. Is it really to be said that effective immigration control requires that the claimant and her child must first travel back (perhaps at the taxpayer's 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 moths 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."

[25] Admittedly their Lordships in Chikwamba had been materially influenced by the adverse conditions likely to be encountered in Zimbabwe at that time, and Lord Brown's ratio had highlighted the position of family cases involving children. However, no such special considerations applied in the later case of MA (Pakistan), where the Court of Appeal treated the ratio of Chikwamba as having a wider general application. At paragraph 9 of his opinion, Sullivan LJ said:

"Looking at the particular circumstances of this case, it does appear to me that the manner in which the immigration judge applied the insurmountable obstacle test to the question of removal in order to reapply for leave in accordance with the Rules is the very antithesis of the approach that was urged by Lord Brown in Chikwamba. The real question was not whether there were "insurmountable obstacles" to the applicant returning to Pakistan in order to make an application for entry clearance from there, but whether there was any sensible reason as to why he should be required to do so."

[26] With these considerations in mind, it would be inappropriate to require this petitioner to return to Turkey in order to make a fresh application for entry clearance. Assuming that his current relationship led on to marriage, such an application would be likely to succeed, and as in MA (Pakistan) it was wrong for the refusal letter to apply the "no insurmountable obstacles" test in determining whether the petitioner's removal would be a proportionate interference with his established family life in this country.

[27] For all of these reasons the petitioner's case under article 8 of the Convention should also be upheld.

(ii) The respondent's reply

[28] Counsel for the respondent invited the court to hold that no unlawful or disproportionate interference with the petitioner's article 8 rights had been made out. No special deference or respect towards the original decision-maker was necessary or appropriate for this purpose: as held in Huang and other cases, it was simply for the court to determine whether a violation of article 8 had occurred or not. Similarly, no issue was taken with the general principle affirmed in Chikwamba and MA (Pakistan), provided that it was recognised that each case depended on its own particular facts and circumstances, and that in some cases it was eminently appropriate for an applicant to be returned to his own country pending a fresh application for entry clearance. An example of such a case had been discussed in Chikwamba, namely that of a Turkish citizen who had entered the United Kingdom illegally and claimed asylum here on the basis of untruthful assertions as to his asylum history abroad. In the face of what was described as "... a track record of such prolonged evasion and mendacity", there had been nothing even arguably disproportionate in requiring that appellant to return to Germany for entry clearance purposes. Interestingly, the applicant in question had married a UK citizen and a child had been born, whereas neither feature could be relied on here.

[29] Looking at the particular circumstances of this case, the petitioner had been granted leave to enter the UK in order to take up residence with his then spouse. The marriage then broke up, and the relevant leave of entry expired in March 2007. The petitioner did not disclose his change of circumstances to the respondent until, as an overstayer, he made an application for leave to remain more than one year later. From then until July 2010, he relied only on the existence of a business commenced after expiry of his original leave. So far as the affidavits disclosed, the relationship now founded on was relatively recent, developing to the stage of co-habitation in 2010, and it was clear that this relationship was commenced and maintained by the petitioner in the full knowledge that for many years he had been in breach of immigration control. Even if co-habitation for the time being was acknowledged, the parties were not yet in a position to marry, and it was not known whether marriage would ultimately result. Furthermore, the fact that the lady in question had a child of 9 was of much lesser significance than if a child had been born of her relationship with the petitioner.

[30] The relative strength or weakness of a family relationship, and the nature and duration of an applicant's breach of immigration control, were plainly factors of importance to be weighed up in any given case. Here, it was said, the prevailing factors were not such as to demonstrate that the petitioner's removal to Turkey, pursuant to the legitimate aims of immigration control, would constitute an unlawful and disproportionate interference with his established family life in the UK.

(iii) Discussion

[31] Even with the guidance in Chikwamba and MA (Pakistan) in mind, I am ultimately not persuaded that there was anything objectionable about the respondent's treatment of the article 8 issue in this case. By remaining in the UK after March 2007, the petitioner committed a long-term breach of his original entry conditions. It was more than one year before an application for leave to remain was submitted, and at that time it was based on business considerations alone. That remained the position for more than two further years, during which it became obvious that the respondent was not inclined to favour the application. It was only in July 2010 that article 8 grounds were advanced, relying on a relatively recent relationship and co-habitation involving neither marriage nor the birth of a child. The relationship in question was commenced and developed by the petitioner in the full knowledge of his own long-term breach of immigration control, and of the precarious residential status which he enjoyed in this country. And in that context no separate point was taken regarding the interests of the lady in question or of her own 9-year-old son, nor were any materials advanced which would have enabled their interests to be properly evaluated.

[32] Against that background, I am unable to regard the petitioner's article 8 claim as coming anywhere near the strength of those which succeeded in Chikwamba and MA (Pakistan). On the contrary, it seems to me that the combination of (i) a long-term breach of immigration control, (ii) the recent establishment of a relationship in the full knowledge of such breach, and (iii) the relative weakness of that relationship for "family life" purposes, involving neither marriage nor the birth of a child, militates strongly against the petitioner's claim even if, ex concessu, article 8 of the Convention is engaged here. In all the circumstances, it does not seem to me that the respondent's decision to reject that claim can be described as unreasonable or inappropriate, and I am not persuaded that any violation of the petitioner's rights under article 8 of the Convention has been made out. Without marriage, it is far from certain that a fresh application for entry clearance would succeed, and on that basis it cannot be said that temporary or permanent removal to Turkey (where no adverse conditions were alleged to exist) would be a disproportionate measure in all the circumstances.

[33] It is no doubt regrettable that, notwithstanding the guidance in Chikwamba and MA (Pakistan), the respondent in her decision letter made reference to the lack of any "insuperable obstacles" to the petitioner's return to Turkey pending any fresh application for entry clearance. Elsewhere in that same letter, however, the respondent appears to me to have approached the article 8 issue on an entirely proper basis, namely by considering whether removal of the petitioner would be a proportionate measure in all the circumstances of the case. In that particular context, therefore, I am not persuaded that the stated lack of "insurmountable obstacles" was truly more than a factual observation of which the actual decision then took account.

[34] Clearly my views on the article 8 issue do not affect the ultimate disposal of this petition for judicial review. As previously confirmed, the refusal letter of 27 July 2010 must be reduced on the ground that the respondent's approach to the primary business aspect of the application involved a breach of the standstill clause. Nevertheless, it is appropriate that my decision on the human rights issue should also be recorded lest the present proceedings go further. The conclusion which I have reached may also have some relevance if and when the respondent comes to reconsider the petitioner's application.

Result

[35] For all of the reasons explained above, the petitioner succeeds on the main issue under the standstill clause, but fails on his more recent claim to protection under article 8 of the Convention. The operative order will simply be for reduction of the respondent's Notice of Decision dated 27 July 2010. This will require reconsideration, yet again, of the petitioner's application which has been pending since April 2008.