Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 186
P594/13	OPINION OF SHERIFF P ARTHURSON QC (Sitting as a Temporary Judge) in the cause GULSHAHBAZ AHMED MIRZA Petitioner For Judicial Review of decisions by the Secretary of State for the Home Department refusing to allow the petitioner leave to remain as a spouse of a UK national ________________

Petitioner: Winter; Drummond Miller LLP

Respondent: Webster; Office of the Advocate General

4 December 2013

Introduction

[1] The petitioner is a Pakistani national born on 8 September 1976. He entered the UK on 2 April 2004 with valid leave to enter as a work permit holder for the period 17 March 2004 until 17 March 2005. No further applications for leave to remain were made by the petitioner until an application for leave to remain was made by him on 28 February 2012. On 22 January 2013 a decision was made on behalf of the respondent refusing the petitioner's application. On 10 May 2010 the petitioner applied for a certificate of approval to marry Tracy Grant under the Home Office Certificate of Approval Scheme. He married Tracy Grant on 18 June 2011 in Scotland, the application for a certificate of approval to marry having been granted on 20 February 2011.

[2] The petitioner's application for judicial review challenging the decision made on behalf of the respondent dated 22 January 2013 came before the court for a first hearing on 22 November 2013. In the days leading up to the first hearing, the petitioner's solicitors sent an email to the respondent's solicitor requesting reconsideration of the position by the respondent. As a result of that request an undated letter from UK Visas & Immigration was sent to the petitioner's solicitors, and was received by them on 19 November 2013 ("the November 2013 letter"). In the course of the hearing the petitioner's counsel abandoned his challenge in respect of the initial decision dated 22 January 2013 and sought to focus his challenge upon the November 2013 letter which parties at the hearing accepted as representing the decision of the respondent in issue in the case.

Submissions for the petitioner

[3] Counsel for the petitioner, having in this way abandoned his first and second pleas-in-law during the course of the hearing, invited the court to sustain the petitioner's third plea-in-law by reducing the November 2013 letter on the basis that the decision contained therein was erroneous in law.

[4] The petitioner's challenge arises in the context of the new immigration rules, which came into force on 9 July 2012. In terms of Appendix FM to the new rules the respondent has set out provisions relevant to those who seek to enter or remain in the United Kingdom on the basis of their family life with a person who is a British citizen or is settled in the United Kingdom.

[5] Paragraph E-LTRP2.2 provides as follows:

"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."

[6] Paragraph EX.1, to which the above paragraph refers, provides in turn as follows:

"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 or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK."

[7] The respondent has power to grant leave to enter or remain in the United Kingdom outside the immigration rules in certain deserving cases and has issued instructions to her officials in respect of the approach to be applied in deciding whether to grant leave outside the rules. Paragraph 3.2.7d of those instructions is in the following terms:

"Where the applicant does not meet the requirements of the rules refusal of the application will normally be appropriate. However, leave can be granted outside the rules where exceptional circumstances apply. Consideration of exceptional circumstances applies to applications for leave to remain and leave to enter. "Exceptional" does not mean "unusual" or "unique". Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example a case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin. Instead, "exceptional" means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. That is likely to be the case only very rarely."

[8] Insofar as counsel for the petitioner developed his argument in respect of the November 2013 letter, his submission put short came to this: in the November 2013 letter the decision maker had conflated the British nationality of the petitioner's spouse with "insurmountable obstacles", and that these factors had not been considered by the decision maker in the context of a "good arguable case".

[9] Counsel founded upon a number of authorities in support of this proposition, including Secretary of State for the Home Department v Izuazu [2013] UKUT 00045 (IAC), in which the Upper Tribunal set out clearly: (i) that fact finders called upon to make decisions about the application of article 8 in new rules cases should proceed by first considering whether a claimant is able to benefit under the applicable provision of the rules designed to address article 8 claims; and (ii) that if the applicant does so benefit, there will be no need to go on to consider article 8 generally, but where a claimant does not meet the requirements of the rules, the fact finder will require in turn to go on to make an assessment of article 8 applying the criteria established by law. Counsel submitted that Izuazu made it clear that the test to be applied was not exceptional circumstances or insurmountable obstacles. The test was not a general one of exceptional circumstances; rather, what was required by the fact finder was to identify the need for weighty factors in favour of the claimant (Izuazu, supra, para 58 and 78). Applying these observations to the November 2013 letter, counsel observed that while the decision maker had had in mind that the petitioner's spouse was a British national, he had conflated the issue of British nationality with that of insurmountable obstacle. Counsel commended the dicta of Sales J in Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin). He noted that Sales J at para 29 had observed that in many cases the main points arising for consideration in relation to article 8 will be addressed by application of the new rules by decision makers, and that it would only be if, after doing so, there remained an arguable case that there may be good grounds for granting leave to remain outside the rules by reference to article 8 that it would be necessary for article 8 purposes to go on to consider whether there were "compelling circumstances not sufficiently recognised under the new rules" to require the grant of such leave. Counsel accepted that the petitioner's immigration status was precarious, and that removal would be disproportionate only in exceptional cases. He accepted further that consideration of whether there were insurmountable obstacles to the petitioner's resident spouse relocating to the petitioner's country of origin to continue their family life there would be "a highly material consideration" (Sales J in Nagre, supra at paragraph 41). His argument arising from Nagre was instead that the question of whether there were insurmountable obstacles to relocation was and is not the sole and definitive test for disproportionality in precarious family life cases, and that "a wider assessment taking into account other potentially relevant factors as well could be required" (Sales J at para 47).

[10] Counsel accepted that the establishment by the petitioner of a relationship when his status was precarious, and indeed his status as an over-stayer, were factors against him which would require to be taken into account. The nationality of the petitioner's spouse, and her lifetime length of residence, however, also required to be taken into account: see Sanade and others [2012] UKUT 00048 (IAC) at paras 93 to 95, and Khan v Secretary of State for the Home Department [2013] CSOH 176, per Lord Glennie at para 31. The decision maker in the November 2013 letter had found in terms that Tracy Grant's British citizenship was not an insurmountable obstacle to her living outside the United Kingdom, which indicated that he had not appreciated that these were separate factors. The decision maker had given no consideration to these factors in analysing whether there was a good arguable case. These omissions in the expression of reasoning in the letter by the decision maker were such that the court could hold that the said determination had been vitiated by an error of law, counsel submitted, under reference to MP (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 362, per Lloyd LJ at para 42.

Submissions for the respondent

[11] Counsel for the respondent helpfully reviewed the background to the promulgation by the respondent of the new immigration rules in 2012, and invited the court to hold that there had been no error of law on the part of the respondent in terms of the November 2013 decision letter. Counsel founded primarily on the decision of the Extra Division in MS v Secretary of State for the Home Department [2013] CSIH 52. The Division had made it clear (at para 26) of MS that the new rules would be likely to deal adequately with the great majority of cases where the article 8 right to family life was placed in issue, and that in that event there would be no need to go on to consider article 8 separately, using the type of analysis set by Lord Bingham of Cornhill in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 at para 17. The Division had proceeded in MS (at para 28) to express the opinion that in considering whether the circumstances "in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate" (para 3.2.7d of the respondent's guidance, supra) had been demonstrated by an applicant, the appropriate criterion to be used should be that of a "good arguable case", as suggested by Sales J in Nagre, supra, at para 49. The Division in MS then set out the following guidance for decision makers (at para 28):

"The decision maker should examine the circumstances put forward by the applicant and determine whether they disclose a good arguable case that the rules would produce an unfair or disproportionate result such that the applicant's article 8 rights would be infringed. It is only if that test is satisfied that there is any need to go on to consider the application of article 8 in detail. Furthermore, as Sales J indicates, those writing decision letters should demonstrate that they have indeed addressed the test."

[12] Counsel proceeded to analyse the November 2013 letter, noting that at page 4, paragraph 1, there was full acceptance expressed on behalf of the respondent that the petitioner was in a genuine and subsisting relationship with a British citizen. Having reviewed the circumstances of the petitioner in the context of his family life, the decision maker had concluded at page 4, para 6, that the petitioner could not meet the immigration rules contained in Appendix FM. On page 5, at para 3, reference had been made to the "good arguable case" approach commended in MS, and, further, the test of unjustifiably harsh consequences had been referred to expressly in that paragraph. Counsel submitted that the vital issues in the matter had been clearly identified and that reasons had been expressed appropriately by the decision maker: see R (Iran) and others v Secretary of State for the Home Department [2005] Imm AR 535, per Brooke LJ at paras 13 and 14. In this case, it was plain that the respondent's decision maker had indeed looked outside the rules and on a proper analysis of the information available had found no good arguable case, applying the appropriate test. In these circumstances, counsel for the respondent moved the court to refuse the petition.

Discussion and Decision

[13] In my opinion the November 2013 letter sets out clearly and comprehensively that the respondent did indeed have regard to the nationality of the petitioner's spouse and to the question of whether the petitioner had advanced a good arguable case to the effect that refusal of leave to remain would lead to unjustifiably harsh consequences. It requires to be borne in mind when considering the November 2013 letter that the petitioner did not seek to challenge the finding of the decision maker therein that the petitioner could not meet the immigration rules contained in Appendix FM. That having been established, the decision maker proceeded to refer to the consideration which he had given as to whether leave should have been granted outside the rules, and did so in the light of guidance given by the Division in MS, supra. The context in which consideration of this matter was given is clearly set out earlier in the letter to the effect that there was an acceptance by the decision maker that the petitioner was in a genuine and subsisting relationship with a British citizen. In proceeding to express his reasons in the chapter of the letter dealing with leave being granted outside the rules, the decision maker addressed the matter under the criterion of a "good arguable case" in assessing whether refusal of leave would result in unjustifiably harsh consequences. It is clear that in taking that approach, as a matter of expression and indeed of substance in the letter, the decision maker has followed the guidance set out by the Division in MS, supra, at para 28, and concluded that there is no evidence that the petitioner has a good arguable, case in those terms. There is in these circumstances no requirement incumbent upon him to embark on a full second stage separate assessment of article 8 rights, the assessment of proportionality having been made already in applying the criterion of "good arguable case" to the antecedent question as to whether the petitioner's application should have been dealt with outside the rules.

[14] The decision maker has in my view considered all relevant circumstances and factors, including in particular those founded upon by counsel for the petitioner, in assessing the criterion of "good arguable case". In that event, the dictum of the Division in MS (at para 30) applies to the effect that if a good arguable case "is not demonstrated, it can be assumed that the applicant's article 8 rights will be adequately dealt with by applying the new rules". I conclude therefore that, on a fair reading of the November 2013 letter as a whole, the decision complained of by the petitioner contains no error of law.

Disposal

[15] For these reasons, I shall repel the pleas-in-law for the petitioner, sustain the third plea-in-law for the respondent and refuse the petition. I reserve meantime all questions of expenses.