AHMED, PETITION OF v SECRETARY OF STATE FOR THE HOME DEPARTMENT FOR JUDICIAL REVIEW [2017] ScotCS CSIH

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Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber)

Petitioner and Reclaimer: Lindsay, QC, Winter; Drummond Miller LLP

Respondent: Pirie; Office of the Solicitor to the Advocate General

[1] The petitioner is a citizen of Sudan born on 4 September 1976. On 14 August 2014 an

official acting on behalf of the Home Secretary refused him entry clearance to the

United Kingdom as the partner of his wife, Dalia Yassein, under Appendix FM of the

Immigration Rules. The application was refused because the financial requirements of the

Rules could not be met. The entry clearance officer further considered a claim for leave

outside the Rules based on Article 8 of the European Convention on Human Rights. He found

that there were no exceptional circumstances in relation to respect for the petitioner’s family

life or private life. The entry clearance officer also considered the best interests of the

petitioner’s children, who live in the United Kingdom with his wife. He found that it would

not be disproportionate for the application to be refused notwithstanding this factor.

[2] The petitioner met his wife at university in Sudan in 2003. They married on 10 January

2005, and have three children, born respectively on 26 June 2006, 27 December 2009 and

12 April 2013. The petitioner’s wife and his children are all British citizens, and currently

reside in the United Kingdom. The petitioner accepts that he cannot meet the financial

conditions of Appendix FM of the Immigration Rules, and consequently must apply for leave

outside the Rules. He is not working at present, and his wife is in receipt of benefits in the

United Kingdom. The petitioner at one time worked as an advertisement designer for a

newspaper in Sudan, but he lost his job in July 2012. He now does casual work. The

petitioner’s wife and children have gone to Sudan four times since they came to live in the

United Kingdom; his wife’s uncle pays for those trips. The two eldest children are in full-time

education in Edinburgh and the youngest child was due to start nursery in 2015.

[3] The petitioner appealed to the First-tier Tribunal against the refusal of entry clearance.

On 15 July 2015 the judge of the First-tier Tribunal dismissed the appeal both under the

Immigration Rules and under Article 8 of the European Convention on Human Rights. She

first considered the best interests of the three British children and the provisions of section 55

of the Borders, Citizenship and Immigration Act 2009. She noted that the two older children

were at school, and had learned to read and write in English. Their mother, however required

an interpreter in court, and the judge thought that the children probably spoke Arabic at home

with her. The two oldest children had been born in Sudan and started their lives there. At

that time they lived with both of their parents as a family. After reciting these facts the judge

“In most cases it is in the children’s best interests to live with both their parents but if

the Appellant is not able to come to the United Kingdom because his circumstances

cannot meet the terms of the Immigration Rules there is nothing to stop their mother

and the children all returning to join the Appellant in Sudan where they can live

together as a family. The fact that they are in the United Kingdom with their mother is

a matter of choice by their mother, accepted by the Appellant. I find that the children

are young enough to return to Sudan and start their education again there. It is not too

late for a 9 year old to carry on with his education in Sudan and certainly not too late

[4] The judge then noted (paragraph 35) that, if the petitioner and his wife found that it

was in the children’s best interests to be educated and to live in the United Kingdom, they

could continue their relationship with their father as they had done for four years, on the

telephone, using Skype and paying him visits. The judge expressly took into account the fact

that the petitioner’s wife and three children all had British nationality. She noted that the

petitioner’s wife is a dual citizen and nothing had been put before her to indicate that the

children could not go to live in Sudan; two of them had already lived there. She further

“I accept… that as a British citizen the Sponsor cannot be required to leave the United

Kingdom, and neither can her children. They have a right to live here and they can

The judge observed that it was not explained why the petitioner had taken four years to apply

to join his wife and children in the United Kingdom. The fact that this occurred had

weakened the family life case, and family life could be continued as at present.

[5] The judge stated that she had taken into account the case of R (Razgar) v Home Secretary

[2004] UKHL 27; [2004] 2 AC 368; she had to decide whether it would be disproportionate to

refuse the petitioner’s application to join his wife in the United Kingdom as a partner. In that

respect the judge noted that she had to consider the public interest question and Part 5A of the

Immigration and Asylum Act 2002, in particular sections 117A-D. The sponsor in this case

(the petitioner’s wife) lived on benefits in the United Kingdom, and was hoping to do an

English for Work course at Edinburgh College. She therefore did not expect to be working

within the next year. As already noted, she used an interpreter in court. The judge observed

that she had to consider the maintenance of effective immigration control in the

United Kingdom, which is in the public interest. The petitioner and his wife were not

financially independent and would therefore be a burden on the taxpayer. If the appeal were

dismissed the children would not require to leave the United Kingdom; they could remain

here with their mother. It was the mother’s choice whether to remain in the United Kingdom

without the petitioner or to go to Sudan with the children and live there as a family. There

was no clear evidence or reason as to why the usual policy considerations would not apply.

Consequently there were no exceptional circumstances or compassionate and compelling

factors in the case which would lead to the application’s being allowed outside the Rules.

[6] The petitioner applied for permission to appeal to the Upper Tribunal. On

27 November 2015 a judge of the First-tier Tribunal refused the application. The petitioner

then applied to the Upper Tribunal for such permission. On 13 January 2016 that application

was refused. The application was founded on the proposition that it was unreasonable to

expect a British parent and British children to relocate to a country outside the European

Union, and accordingly refusal of entry was disproportionate. The judge of the

Upper Tribunal found that it was open to the First-tier Tribunal to find that the requirements

of the Immigration Rules were not met and that there was no arguable case that there were

good grounds for granting leave to enter outside the Rules by reference to Article 8. He

described the case as “an unexceptional spouse appeal where the financial requirements of the

Rules were not met”. No compelling or unusual factors were present. The judge had

correctly considered the age of the children, the closeness of the relationship with their mother

in the United Kingdom, and whether the family could live together elsewhere. The fact that

the best interests of the children were in issue did not simply provide a trump card. There

[7] The petitioner then presented a petition for Judicial Review to the Court of Session in

which he sought reduction of the Upper Tribunal’s decision of 13 January 2016 refusing

permission to appeal to itself. The central contention was that it was unreasonable to expect a

British parent (the petitioner’s wife) and British children to relocate to another country.

Three supplementary arguments were advanced: first, the Upper Tribunal did not engage

with that central issue; secondly, the Upper Tribunal applied the wrong test; and thirdly, the

Upper Tribunal did not consider whether the decision was proportionate. When the case

called before the Lord Ordinary, he refused permission to proceed on the ground that there

[8] In relation to the first of the three specific arguments, the Lord Ordinary held that the

Upper Tribunal had engaged with the central issue, and decided that in the light of the whole

circumstances the decision of the First-tier Tribunal was not unreasonable. In relation to the

second specific argument, the Lord Ordinary held that the Upper Tribunal had considered

whether there was anything out of the ordinary, even though the petitioner had not identified

any such factor. There was no warrant for suggesting that the First-tier Tribunal judge had

applied the wrong test or that another such judge would arrive at a different result. No

mistake leapt off the page; it appeared to be a rote decision. As to the third specific

argument, on a plain reading the First-tier Tribunal had evaluated proportionality. A person

had no absolute right to enter the United Kingdom simply because he or she had married a

United Kingdom national: Khan v Home Secretary, [2016] CSIH 13; 2016 SC 536 at

paragraph [20]. For these reasons the Lord Ordinary refused permission for the petition to

[9] The petitioner has reclaimed against the Lord Ordinary’s decision, contending that it

was wrong in law, and that the error was such that there was a compelling reason for

permitting an appeal to the Upper Tribunal. He relies on the fact that his wife and

three children are British citizens resident in the United Kingdom. He has maintained contact

with them while living in Sudan, using means such as Skype and WhatsApp, and they have

paid him a number of visits, paid for by the petitioner’s wife’s uncle. In this way a measure of

family life has been secured, but the family now wish to live together in one place. For the

petitioner it is submitted that, because his wife and children are British, it would be

unreasonable to expect them to move to Sudan to be with him. For this reason the

proportionality of interference with family life should not be assessed simply on the basis that

the whole family should live together in Sudan. If the family cannot be expected to move to

Sudan, the interference with family life will involve separation over a prolonged period, and

the proportionality assessment should proceed on that basis. The countervailing factor in that

assessment was the maintenance of immigration control, and the critical question was about

whether pursuing that objective was proportionate to the prolonged separation of the family.

This was not the way in which the First-tier and Upper Tribunals had proceeded; they had

assumed that the family could be reunited in Sudan, but that was an error in view of the

British and EU citizenship of the petitioner’s wife and children. That error by the First-tier

and Upper Tribunals, it is said, vitiated their decisions. The argument that they were in error

demonstrated a real prospect of success, and that in itself was a compelling reason for

[10] If the petition to the Court of Session is to be permitted to proceed, three requirements

must be satisfied. First, there must be a realistic prospect of establishing an error of law by the

Upper Tribunal. Secondly, there must be a realistic prospect of establishing that such error is

material. Thirdly, the appeal challenging that error must either raise an important point of

principle or practice or there must be another compelling reason for allowing it to proceed. In

the present case, it is contended for the petitioner that there was a compelling reason for

permitting a further appeal. It is said that the decisions of the First-tier and Upper Tribunals

were plainly wrong, in that they failed to respect principles of law laid down in the prior

decision of the Upper Tribunal in Ogundimu (Article 8-New Rules) Nigeria, [2013] Imm AR 422, at

paragraphs 102-103 and 133, the subsequent decision of the Upper Tribunal in SF and others

(Guidance, post-2014 Act) Albania, [2017] UKUT 120 (IAC), paragraphs 7-9, and the subsequent

decision of the UK Supreme Court in R (Agyarko) v Home Secretary [2017] UKSC 11;

[2017] 1 WLR 823. The result of the Tribunals’ decisions in the present case would be a lengthy

separation between the petitioner and his family, which would be an affront to justice. That, it

was submitted, was a sufficiently compelling reason to permit an appeal to proceed.

[11] We will consider first whether there was an error of law by the Upper Tribunal in

refusing permission to appeal against the decision of the First-tier Tribunal; secondly, whether

any appeal from the First-tier Tribunal would have realistic prospects of success; and thirdly

whether there is a sufficiently compelling reason to permit an appeal to proceed.

[12] In our opinion the petitioner has failed to demonstrate any error of law on the part of

either the First-tier Tribunal or the Upper Tribunal. The critical issue is the assessment of

proportionality in respect of the right to family life of the petitioner and his family, in

accordance with Article 8 of the European Convention on Human Rights. The judge of the

First-tier Tribunal accepted (at paragraph 36) that, because the petitioner’s wife and children

were British citizens, they could not be required to leave the United Kingdom, and had a

continuing right of residence there. The judge correctly identified that the issue was one of

proportionality (at paragraphs 38-39), and that in considering that question she required to

consider the public interest. A number of factors were identified as relevant to this question.

First, the maintenance of effective immigration control is regarded as being in the public

interest. Secondly, both the petitioner and his wife would be dependent on state benefits, and

would therefore be a burden on the United Kingdom taxpayer. Thirdly, the petitioner and her

children were entitled to remain in the United Kingdom and to maintain contact with the

petitioner as they do at present, using electronic means of communication such as Skype and

WhatsApp, with occasional visits to the petitioner in Sudan. Fourthly, the petitioner’s wife

and children were entitled to go to Sudan and live there with the petitioner as a family. It was

on the basis of these considerations that the judge decided that it had not been

disproportionate for the Home Secretary to refuse entry clearance.

[13] We consider that this assessment of proportionality cannot be faulted. All the material

considerations are taken into account and balanced against the right of the petitioner’s wife

and children to reside in the United Kingdom and the obvious desire of the whole family to be

reunited in the United Kingdom. There is nothing unusual about these considerations; as the

Lord Ordinary observes in the reasons that he initially gave for refusing permission to

proceed, the decision appeared to be “a rote decision”. For the petitioner it was contended

that the proportionality assessment should have proceeded on the hypothesis that the

petitioner’s wife and children would remain in the United Kingdom, as is their right, with the

result that there would be a prolonged separation of the family. In our opinion there was no

requirement to proceed on that basis. We note that in Khan v Home Secretary, supra, it was

stated by the Lord President at paragraph [18] that there was no reason to require a

decision-maker to assume that a couple will inevitably be separated by removal from the

United Kingdom; frequently relocation to an applicant’s country of origin outside the

[14] Furthermore, in R (MM (Lebanon)) v Home Secretary, [2017] UKSC 10;

[2017] 1 WLR 771, where a number of claims for leave to enter the United Kingdom were considered,

“There is no general obligation to respect a married couple’s choice of country in

which to reside or to authorize family reunification. It will depend upon the particular

circumstances of the persons concerned and the general interest. Factors to be taken

into account are the extent to which family life would effectively be ruptured; the

extent of the ties in the host country; whether there are ‘insurmountable obstacles’ (or,

as it has sometimes been put in other cases, ‘major impediments’…) in the way of the

family living in the alien’s home country; and whether there are factors of

immigration control (such as a history of breaches of immigration law) or public order

In the present case the petitioner’s application for leave to enter was presented in accordance

with the rules: no false asylum claim was made, and he has not been guilty of criminal

conduct. Thus the last of the foregoing factors was absent. Nevertheless, the other factors

were taken into account by the judge of the First-tier Tribunal, to the extent that arguments

were presented to him. The judge thus reached a decision that accorded with the guidance

[15] The importance of family life in immigration cases was further considered in

R (Agyarko) v Home Secretary, supra. The primary issue in that case, and an associated case

decided with it, was the position of persons who had remained in the United Kingdom

unlawfully after the expiry of limited leave to enter but had married British citizens. That is

distinct from the present case, in that the petitioner is not unlawfully in the United Kingdom

but has sought entry clearance in an entirely proper manner. Nevertheless, the UK Supreme

Court made observations on a number of matters that are pertinent to the present case: the

weight to be accorded to the policy enshrined in the Immigration Rules; the public interest in

immigration control; and the significance of the rights accorded by European citizenship

status. The court emphasized the importance of the Immigration Rules as embodying public

policy, in a manner that was consistent with the European Convention on Human Rights, and

in particular Article 8 of the Convention. At paragraph 47 it is stated:

“The Rules therefore reflect the responsible Minister’s assessment, at a general level, of

the relative weight of the competing factors when striking a fair balance under article

8. The courts can review that general assessment in the event that the decision-making

process is challenged as being incompatible with Convention rights or based on an

erroneous understanding of the law, but they have to bear in mind the Secretary of

State’s constitutional responsibility for policy in this area, and the endorsement of the

Rules by Parliament. It is also the function of the courts to consider individual cases

which come before them on appeal or by way of judicial review, and that will require

them to consider how the balance is struck in individual cases. In doing so, they have

to take the Secretary of State’s policy into account and to attach considerable weight to

it at a general level, as well as considering all the factors which are relevant to the

That perhaps reflects a higher level of respect for the Rules as an embodiment of government

policy than in previous case law, although in cases such as MS v Home Secretary, [2013] CSIH

52, the importance of the Rules as a factor in evaluating proportionality for the purposes of

[16] An important policy contained in the Rules is that persons who seek to enter the

United Kingdom on a permanent basis should be financially independent. In MM supra, the

court (at paragraphs 75-76) discussed the weight that should be given to judgments made by

the Home Secretary in the exercise of her constitutional responsibility for immigration policy.

In relation to the Convention, the Strasbourg court has permitted a considerable margin of

appreciation in relation to “intensely political” issues, such as immigration control. It did not

follow that everything in the Rules should be treated as high policy or peculiarly within the

province of the Home Secretary. Nevertheless the underlying public interest considerations

are to be treated with respect, as reflecting fundamental immigration policy. That extended in

particular to “rules reflecting the Secretary of State’s assessment of levels of income required

to avoid a burden on public resources, informed as it is by the specialist expertise of the

Migration Advisory Committee” (paragraph 76). Thus the financial requirements of the Rules

are entitled to considerable weight. The judge of the First-tier Tribunal took this factor into

account (for example at paragraph 39), and he was clearly entitled to do so.

[17] In Agyarko, supra, the court discussed the question of when the removal of a non-

national family member might constitute a violation of Article 8: see paragraphs 54 et seq. It

was pointed out that the European Court of Human Rights had stated that, in cases of

precarious family life, it was likely only to be in exceptional circumstances that such removal

might involve a contravention of Article 8. In the present case, of course, the petitioner does

not enjoy precarious immigration status within the United Kingdom. He has applied for leave

to enter the United Kingdom. That lacks the element of disregard for the immigration system

that frequently attaches to precarious status. Nevertheless, such a person ex hypothesi lacks

any existing formal right to enter or remain in the United Kingdom. It is therefore difficult to

see why an applicant for leave to enter should be treated in a fundamentally different way

from a person with precarious immigration status; neither has an existing right to be in the

United Kingdom. It follows that some form of “exceptional” circumstances may be required if

a court or tribunal is to find a violation of Article 8 in such a case. The word “exceptional” is

perhaps ambiguous: see MS, supra, at paragraph [27]. The word has now been clarified for

the purposes of the Rules as denoting “circumstances in which refusal [of leave to enter or

remain] would result in unjustifiably harsh consequences for the individual such that the

refusal of the application would not be proportionate”: Agyarko, supra, at paragraph 60. Such

an approach is entirely consistent with the views expressed in the present case by the First-

tier Tribunal and endorsed by the Upper Tribunal and in the Outer House.

[18] The strength of the petitioner’s ties to the United Kingdom is clearly a material factor

in assessing the importance of family life: MM, supra, at paragraphs 40-42. It is likewise

relevant to consider the existence or otherwise of obstacles to prevent the family as a whole

relocating to the petitioner’s home country: ibid. In the present case, for reasons stated by the

First-tier Tribunal, the petitioner has no pre-existing ties to the United Kingdom; his only

connection is through his wife and children who are citizens of the United Kingdom. The

First-tier Tribunal further held that there was nothing to prevent the family from relocating to

Sudan. The judge specifically considered the children’s education, and concluded that the

older children were of an age where return was entirely practical. Moreover, he thought that

[19] We were informed that the petitioner’s wife and children do not wish to move to

Sudan, and it was contended that assuming that they could do so was an unreasonable basis

for conducting the proportionality exercise, in view of their British citizenship. In our opinion

the recent authorities lend no support to such an argument. The fact that they are British

citizens who do not want to leave the United Kingdom is not a decisive factor; it is rather one

of a number of factors that require to be balanced in conducting the proportionality exercise.

Such a conclusion appears clearly from the lengthy discussion of the significance of British

citizenship in Agyarko, supra, at paragraphs 61-68. We consider that the British citizenship of

the petitioner’s wife and family and their wish to remain in the United Kingdom were

properly taken into account in the proportionality exercise conducted by the First-

tier Tribunal. We would, moreover, emphasize that the fact that the petitioner’s wife and

children are British citizens does not give the family the right to insist that it should be

reunited in the United Kingdom; it does no more than give the wife and children the right to

[20] For the foregoing reasons we are of opinion that the reasoning of the First-tier Tribunal

in conducting the proportionality exercise under Article 8 is correct and discloses no error of

law. Consequently the decision of the Upper Tribunal to refuse permission to appeal on this

ground cannot be faulted. We should, however, refer briefly to certain further cases that were

relied on by the petitioner. The first of these was Ogundimu, supra, which involved an attempt

to deport the claimant, a Nigerian citizen, because of his persistent contraventions of criminal

law. The claimant had been granted indefinite leave to remain, and had relationships with his

son, who was aged 8, and a current partner and her daughter. It was held that under a

conventional Article 8 assessment those relationships amounted to genuine family life. That

family life had been established when the claimant had indefinite leave to remain, and

consequently substantial weight should be attached to it. In those circumstances it would not be

reasonable to expect the claimant’s son or his partner and her child to relocate to Nigeria. On its

facts that case is distinguishable from the present case, in that the various family members had

no ties to Nigeria; indeed the claimant’s partner had never been to Nigeria. In the present case,

by contrast, the parties met in Sudan and lived there as a family for a number of years.

Furthermore, in its reasoning the Upper Tribunal relied on the fact that the deportation would

prevent the claimant’s returning to the United Kingdom for ten years, which would effectively

prevent contact with his family: paragraphs 130 et seq. That is another element that

distinguishes the present case. Furthermore, the recent decisions in Agyarko, supra, and MM,

supra, both postdate Ogundimu. For that reason we do not consider that the decision in the latter

[21] Reference was also made to the decision of the Upper Tribunal in SF and others

(Guidance, post-2014 Act) Albania, supra. In our opinion that case cannot be relied on for

present purposes. The case concerned the application of section 117B(6) of the Nationality,

Immigration and Asylum Act 2002, but it is conceded that that provision has no application to

[22] As we have indicated, we consider that the reasoning of the First-tier Tribunal cannot

be faulted, and the same applies to the reasoning of the Upper Tribunal in refusing permission

to appeal against that decision and to the decision of the Lord Ordinary in refusing

permission to proceed with the petition to the Court of Session. In our opinion no arguable

error of law is demonstrated. In particular, in view of the approach adopted in Agyarko, supra,

and MM, supra, it cannot be argued, as the petitioner does, that it was unreasonable in

conducting the proportionality exercise to expect the petitioner’s wife and children to relocate

to Sudan. The critical question for present purposes is whether the petitioner’s argument that

the Tribunals and Lord Ordinary erred in law has any realistic prospect of success. In our

opinion it has no such prospect. As the judge of the Upper Tribunal remarked in his opinion,

this was “an unexceptional spouse appeal where the financial requirements of the Rules were

not met”. Furthermore, no compelling or unusual factors were present, and the judge of the

First-tier Tribunal had correctly considered the question of proportionality in relation both to

the children and to the petitioner and his wife. The case is therefore very clear.

[23] In addition, if permission to proceed with the petition is to be granted, it is necessary

to satisfy the second appeals test, laid down in cases such as Eba v Advocate General, 2012 SC

(UKSC) 1, that either the petition raises an important point of principle or practice or that

there is a compelling reason for permitting an appeal or petition to proceed and which

demonstrated a realistic prospect of success. It is no longer contended for the petitioner that

the present case raises an important point of principle or practice; indeed, following the

decisions in Agyarko, supra, and MM, supra, such an argument could hardly be maintained.

For the reasons that we have already given we do not consider that any appeal against the

decision of the First-tier Tribunal or any proceedings in the Court of Session to challenge the

decisions of the Tribunals would have any realistic prospect of success. On that basis alone

[24] In addition, we are of opinion that no compelling reason for permitting the petition to

proceed has been shown. The argument for the petitioner was, in essence, that the decision of

the Upper Tribunal had been plainly wrong and that there were high prospects of success in

challenging the decision. This was based on the hypothesis that proportionality had to be

assessed on the basis that the petitioner’s wife and children would not leave the

United Kingdom and that a long period of separation of the family was therefore inevitable.

For the reasons given above, in particular at paragraphs [17]—[18] , we consider that the

petitioner’s claim for leave to enter the United Kingdom should not be assessed on that basis.

The correct basis is rather, as the Tribunals and the Lord Ordinary held, that the family have a

choice: either they can be reunited in Sudan or the petitioner’s wife and children can remain

in the United Kingdom and continue to enjoy contact with the petitioner as they do at present.

[25] For the foregoing reasons we refuse the reclaiming motion.

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