Lord Justice Underhill :
- These two appeals concern aspects of the changes made to the Immigration Rules by a Statement of Changes (HC 194) promulgated on 13 June 2012 and taking effect from 9 July 2012, and by a further Statement of Changes (HC 565) promulgated on 5 September 2012 and taking effect the following day. The changes were multifarious, but we are concerned only with those addressing the approach to be taken to applications for leave to enter or remain on the basis of an applicant's private or family life. I set out the relevant changes in detail below, but it will be convenient to give an overview at the start. I will refer to the Rules incorporating the changes made by HC 194 as "the new Rules" and to the previous version as "the old Rules".
- Under the old Rules leave to enter or remain as a family member of a person settled in the UK was regulated by Part 8, which is entitled "Family Members". There was no recognition of a right to enter or remain on grounds of private life as such, but Part 7 ("Other Categories") did provide for leave to remain on grounds of long residence. If an applicant could not establish a right to remain on the basis of one of the particular provisions in those parts, which were tightly defined, they could seek to rely on the right to respect for private and family life derived, via the Human Rights Act 1998, from article 8 of the European Convention of Human Rights. Such applications were generally referred to as being made "outside the Rules".
- The new Rules, by contrast, contain express provision, by new provisions inserted into Parts 7 (principally a new paragraph 276ADE) and 8 (principally a new "Appendix FM"), for applications made on the grounds of private or family life. It remains the case that an applicant may seek to rely on article 8 in a case falling outside these new provisions, but the intention was that the new Rules would properly reflect its requirements in the generality of cases, so that it should only be exceptionally that an applicant would have a valid claim under article 8 which fell outside their scope: I set out at para. 10 below the Secretary of State's explanation of her intention at paragraph GEN 1.1 of Appendix FM. It is now settled that the right course in any case where an applicant relies on his or her private or family life is to proceed by considering first whether leave should be granted under the relevant provisions of the new Rules and only if the answer is no to go on to consider article 8 in its unvarnished form (the so-called "two-stage approach"): see the line of cases which includes Izuazu (Article 8 – new Rules)  UKUT 45 (IAC) and R (Nagre) v Secretary of State for the Home Department  EWHC 7200 (Admin) to which I will have to refer more fully below. Thus article 8 claims "outside the Rules" are still possible, though the scope for their operation is reduced.
- The issue of principle raised by these appeals is which regime should apply in a case where an application for leave to remain was made prior to 9 July 2012 but the decision was made later. That issue is the subject of conflicting decisions of this Court – Edgehill v Secretary of State for the Home Department  EWCA Civ 402 and Haleemudeen v Secretary of State for the Home Department  EWCA Civ 558. There is, however, also an important issue about precisely how the two-stage approach should operate.
- The Appellants were represented before us by Mr Zane Malik and the Secretary of State by Mr David Blundell. The time available for the hearing was regrettably short and did not allow full exploration of the issues – not all of which had been clearly identified in the skeleton arguments – and we permitted the parties to put in written submissions subsequently.
THE RULES AND THE CHANGES
(1) THE OLD RULES
- As already noted, Part 8 covers family members. I need not refer to the details of its provisions prior to HC 194 coming into effect. Part 7 had a sub-heading "Long Residence", which comprised paragraphs 276A-276D. I need only note paragraph 276B, which set out the requirements for the grant of indefinite leave to remain on the ground of long residence in the UK. These included, at (i), that the applicant should have had either (a) ten years' continuous lawful residence or (b) fourteen years' continuous residence (i.e. residence which was not – or not all – lawful); but residence did not count towards the fourteen-year period if the applicant had been served with notice of liability to removal.
(2) THE CHANGES MADE BY HC 194
- HC 194 begins with the heading "Implementation". The first paragraph under that heading provides that, subject to certain immaterial exceptions, "the changes set out in this Statement shall take effect on 9 July 2012". But the following paragraph reads:
"However, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012."
I will refer to that as "the implementation provision".
Changes to Part 7
- Paragraph 87 of HC 194 inserts into Part 7 of the Rules a new group of paragraphs headed "Private Life", being paragraphs 276ADE-276DH. I need only set out paragraph 276ADE, which reads as follows:
"Requirements to be met by an applicant for leave to remain on the grounds of private life
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 1.5 in Appendix FM; and
(ii) does not fall for refusal under any of the grounds in Section S-LTR 1.6 to 2.3 in Appendix FM; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment); or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life residing continuously in the UK (discounting any period of imprisonment); or
(vi) is aged 18 years or above, has lived continuously in the UK for less than 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.
In considering applications under this paragraph, the Secretary of State shall attach less weight to private life in the UK established following refusal of an earlier application for leave to remain made under paragraph 276ADE."
- Various other paragraphs of HC 194 make changes to other provisions of Part 7 to reflect the new private life provisions. Paragraphs 276A-276D are not deleted, but they are amended in various respects so as to render them consistent with paragraphs 276ADE-276DH: among other things, the fourteen-year alternative under paragraph 276B (i) is removed.
Changes to Part 8
- Paragraph 115 of HC 194 provides for the insertion of an appendix to the Rules designated as "Appendix FM": the "FM" evidently stands for "Family Members". The Appendix begins:
"This Appendix applies to applications under this route made on or after 9 July 2012 and to applications under Part 8 as set out in the Statement of Changes laid on 13 June 2012 (HC 194), except as otherwise set out at paragraphs A277-A280."
Its first substantive paragraph – "GEN 1.1" – reads as follows:
"This route is for those seeking to enter or remain in the UK on the basis of their family life with a person who is a British Citizen, is settled in the UK, or is in the UK with limited leave as a refugee or person granted humanitarian protection. It sets out the requirements to be met and, in considering applications under this route, it reflects how, under Article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others. It also takes into account the need to safeguard and promote the welfare of children in the UK."
- I need not summarise the substantive provisions of Appendix FM, save to note that various of the specific requirements for the grant of leave to enter do not apply where paragraph EX.1 applies. That paragraph reads:
"This paragraph applies if
(a) (i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years;
(bb) is in the UK
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application;
(ii) it would not be reasonable to expect the child to leave the UK; or
(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."
- Paragraph 91 of HC 194 begins "At the beginning of Part 8 insert a new section". The new section is then set out. It is headed "Transitional provisions and interaction between Part 8 and Appendix FM" and consists of paragraphs A277-A280. Paragraphs A277-A279 read:
"A277 From 9 July 2012 Appendix FM will apply to all applications to which Part 8 of these rules applied on or before 8 July 2012 except where the provisions of Part 8 are preserved and continue to apply, as set out in paragraph A280.
A278 The requirements to be met under Part 8 after 9 July 2012 may be modified or supplemented by the requirements in Appendix FM.
A279 The requirements of sections "S-EC: Suitability – entry clearance" and "S-LTR: Suitability – leave to remain" of Appendix FM shall apply to all applications made under Part 8 and paragraphs 276A-276D and paragraphs 398-399A shall apply to all immigration decisions made further to applications under Part 8 and paragraphs 276A-276D where a decision is made on or after 9 July 2012, irrespective of the date the application was made."
The provisions of paragraph A280 are very complicated and fortunately I need not set them out here: it is sufficient to say that it preserves a few of the provisions of Part 8 in all circumstances and provides for others to remain applicable in particular classes of case.
- The primary effect of those paragraphs is, as the title says, to set out the relationship between Part 8 and Appendix FM. In short, the effect of paragraphs A277 and A278 is that Appendix FM does not replace Part 8, but applications made "under Part 8" become subject to its provisions, to the exclusion of the substantive provisions of the old Part 8 except to the extent that they are preserved by paragraph A280. The reference in the title to "transitional provisions" is apt to the partial preservation of those old provisions. Paragraph A279 is not easy to parse, but I think it should be read as if there were commas after each mention of "276A-276D". On that basis the effect is to apply the specified provisions to applications (or decisions made pursuant to applications) which are made "under Part 8 and paragraphs 276A-276D" irrespective of the date of application: that could also be described as "transitional", but in a different sense. I discuss at para. 43 below whether it is reconcilable with the implementation provision set out at para. 7 above. The other point to be noted about paragraph A279 is that although it falls under Part 8 its provisions purport to apply also to applications based on paragraphs 276A-276D (i.e. long residence), which fall under Part 7.
(3) THE CHANGES INTRODUCED BY HC 565
- HC 565 was introduced only two months after HC 194 came into effect. Most of the changes made by it do not apply to applications on the basis of private or family life; but they do include a group of provisions described somewhat cryptically at paragraphs 7.3 and 7.4 of the Explanatory Memorandum as "clarify[ing] the drafting of some aspects" of Appendix FM and paragraphs 276A-276BE and "mak[ing] additional transitional provisions as to the operation" of Parts 7 and 8. Mr Blundell told us in his post-hearing written submissions that the changes in question were intended to fill gaps identified in discussions with caseworkers since the implementation of HC 194. It will be more convenient to give the details of those changes at a later stage (see para. 44 below).
THE FACTS AND THE PROCEDURAL HISTORIES
- Mr Singh is aged 40 and is an Indian national. He came to this country on 15 June 1997, when he was 22, and claimed asylum. His claim was refused, and on 1 November 1997 he was served with formal notification that he was liable to be removed. He has remained here illegally ever since.
- On 30 March 2006 Mr Singh applied for indefinite leave to remain under what was then paragraph 276B (i) of the Immigration Rules – i.e. the ten years' continuous lawful residence provision – and also under article 8.
- That application was not dealt with by UKBA until 25 October 2012, over six years later, and following the coming into force of the new Rules. The application under paragraph 276B was refused on the basis that Mr Singh's residence had not been lawful. He had in fact in the meantime passed the fourteen-year milestone, but leave to remain on that basis was also refused because he had received formal notice of liability to removal. It is accepted that UKBA's decision in both respects was correct, and I need say no more about the application under the Rules. As for the claim under article 8, UKBA applied the criteria under paragraph 276ADE, i.e. under the new Rules. Mr Singh was not able to satisfy the criteria relating to length of residence, and specifically not the twenty-year requirement at (iii).
- Mr Singh appealed. By a decision promulgated on 15 January 2013 First-tier Tribunal Judge Deavin dismissed the claim under paragraph 276B, for the reasons which I have already given. He also rejected the claim under article 8. The relevant paragraphs of the judgment read as follows:
"79. It is clearly the case that this Appellant cannot hope to succeed under paragraph 276B and his only hope is Article 8, which is now governed by paragraph A277B, and Appendix FM of the Immigration Rules, which sets out the criteria that the government would expect a person to fulfil in order to establish a right to remain in the United Kingdom on the basis of family and private life. That does not rule out a separate consideration under Article 8 but is persuasive.
80. The situation here is that the Appellant has never had any leave to remain in the United Kingdom and apart from initially claiming asylum, he made no attempt to regularise his satiation in the United Kingdom until he made an application for indefinite leave to remain in early 2006. Weighed against that is the fact that he has had to wait over six years for a response from the Home Office.
81. During that time, he has met his present partner. They are married according to the Sikh religion but are not lawfully married in the United Kingdom. His partner is an overstayer, having come as visitor. They have one child in India, who is being looked after by his wife's brother and sister in law and a child in the United Kingdom, who is Indian and has no status in the United Kingdom.
82. The Appellant has considerable equity in his property in the United Kingdom and there is no problem in him putting that house on the market and using the proceeds to set himself up in India.
83. The Appellant has never had employment in India but has acquired skills in the United Kingdom, both as an HGV driver and as a construction worker and would have no great difficulty in finding employment in India. There is no reason for him to return to the village from which he came.
84. The Appellant acknowledges that he has no lawful right to be in the United Kingdom, but says that he has acquired friends in the United Kingdom and has adapted to the British way of life. That no doubt is true, but all that has happened during a time when he well knew that he had no right to be in the United Kingdom and that he was at risk of being returned to India.
85. The Respondent has, in the Refusal Letter set out the requirements to be met under the current Immigration Rules and I find that the decision reached, in respect of those rules, is entirely correct and that no other decision could be reached, based on the evidence before me.
86. There is clearly both a family and a private life and removal will affect the Appellant's private life but not in a way which could be described as being disproportionate.
87. There will be no effect on his family life as the removal will be the entire family and will result in their being reunited with their so in India."
- On Mr Singh's further appeal to the Upper Tribunal his counsel (not Mr Malik) contended that, while Judge Deavin, having found that he had no claim under the old Rules, had purported to carry out a separate article 8 assessment, he had in practice treated that assessment as governed by the new Rules and had not considered article 8 in its unvarnished form: he relied in particular on what is said in para. 79. Upper Tribunal Judge Hanson rejected that submission and held that Judge Deavin had properly considered the claim in accordance with the guidance in Izuazu. He reviewed the article 8 case in some detail and found no other error of law in Judge Deavin's reasoning or conclusions. I need not reproduce his reasoning on that aspect here, since there was no challenge to it on this appeal.
- Permission to appeal to this Court was initially refused by the Upper Tribunal and subsequently, on the papers, by Beatson LJ. But at an oral hearing on 23 July 2014, at which Mr Singh was for the first time represented by Mr Malik, Christopher Clarke LJ gave permission to appeal. It is clear from his judgment that he did so on the basis of what was a new point, namely that the First-tier Tribunal should not have referred to the new Rules at all because they were not in force at the date of Mr Singh's original application – i.e. not simply that the second stage was concerned only with "unvarnished" article 8. Mr Malik relied on the case of Edgehill to which I refer at para. 4 above, which had been decided since the decision of the Upper Tribunal and which held that the effect of the implementation provision in HC 194 was that the new Rules did not apply to an application made before 9 July 2012; though he also drew the Court's attention to the subsequent decision in Haleemudeen, which appeared to be to the contrary effect. No doubt because of the importance of resolving the difference between the two decisions Christopher Clarke LJ directed that the appeal be expedited. However, the grounds of appeal(not drafted by Mr Malik), which were expressed in very general terms, were not formally confined to what I might call the Edgehill issue.
- Ms Khalid is a Pakistani national born on 13 April 1990. In June 2007, when she was 17, she came to this country with her mother on a six-month visitor visa. She overstayed following the expiry of that visa. In October 2009 she married a British national.
- On 16 January 2012 Ms Khalid applied for leave to remain on the basis of her marriage. She advanced no case under Part 8 of the old Rules: her application was based only on article 8. She recognised that the Rules required her to apply for entry clearance from outside the UK, but she contended that it would be wholly disproportionate for her to have to return to Pakistan for that purpose. Leave to remain was refused in May 2012. Ms Khalid commenced judicial review proceedings, which were compromised on the basis that the Secretary of State would make a fresh decision.
- On 19 April 2013 leave to remain was again refused. UKBA pointed out that Ms Khalid had no claim under the Rules: that was strictly unnecessary, since she had not asserted that she did. As regards the claim under article 8, UKBA said that "as a result of the changes to the Immigration Rules which came into effect on 9 July 2012, your client's case has been considered under Appendix FM". The letter referred to paragraph EX.1 (b), which I have set out at para. 11 above, and said that no evidence had been provided to show that there were insurmountable obstacles to Ms Khalid's family life with her husband continuing outside the UK. It also, though again strictly unnecessarily, considered whether she had any right to remain on the basis of her private, as opposed to family, life – as to which it said, again, that this "from 9th July 2012 falls under paragraph 276ADE of the Rules". It concluded that she did not. There was no consideration of her rights under article 8 except by reference to the new Rules.
- Ms Khalid applied for judicial review of that decision. The pleaded grounds (not drafted by Mr Malik) are diffuse. The principal ground is that the Secretary of State had been wrong to treat her non-compliance with the requirements of Appendix FM (in practice, paragraph EX.1 (b)) as conclusive, and that she should have gone on, in accordance with Nagre, to consider her claim under unvarnished article 8. It was contended that if the issue were treated as one of straightforward proportionality, rather than by reference to the "insurmountable obstacles" test in paragraph EX. 1 (b), it was plainly disproportionate to require Ms Khalid's husband, a British citizen who had never been to Pakistan except for brief visits, to give up his job and private life in the UK to go there with Ms Khalid for whatever period proved necessary for her to obtain entry clearance. Reference was made to the decision of Sullivan J in Forrester v Secretary of State for the Home Department  EWHC (Admin) 2307 (which in turn refers to the decision of the House of Lords in Chikwamba v Secretary of State for the Home Department  UKHL 40,  1 WLR 1420). (No particular difficulties were alleged, apart from being away from her husband, about Ms Khalid herself returning to Pakistan for the necessary period.) It is important to appreciate, however, that there was no challenge to the decision under the new Rules as such, or therefore to the decision that there were no insurmountable obstacles to family life continuing in Pakistan.
- Permission to apply for judicial review was refused on the papers by HH Judge May QC sitting as a Deputy High Court Judge on 19 July 2013. Ms Khalid's renewed application was heard before Professor Andrew Grubb sitting as a Deputy High Court Judge on 30 January 2014. She was for the first time represented by Mr Malik. Again, he did not challenge the decision under the new Rules as such; in particular there was no challenge to the finding that there were no insurmountable obstacles, within the meaning of paragraph EX.1 (b), to her and her husband going to Pakistan for as long as was necessary. However, he put the case rather differently from how it appeared in the Claim Form. Although he maintained the point that there had been no consideration of article 8 outside the Rules, his primary case, in accordance with that advanced on behalf of Mr Singh, was that the Secretary of State should not have had regard to the new Rules at all: Ms Khalid's application was made prior to 9 July 2012, and by reason of the implementation provision they should not have been applied.
- Professor Grubb accepted that argument (anticipating the decision in Edgehill). He also seems tacitly to have accepted that there had been no "second-stage" consideration of article 8. But he refused permission nevertheless on the basis that even if the Secretary of State had considered the application of article 8 without reference to the new Rules the claim would have been bound to fail. He noted an observation by Sales J in Nagre (which I set out in full at para. 60 below) that if it is clear that the consideration under the Rules has fully addressed any family life or private life issue arising under article 8 there is no reason to go on to a distinct consideration under article 8 in its unvarnished form. He continued, at para. 19 of his judgment:
"… this case fell precisely within the category recognised by Sales J as not demonstrating any arguable case outside of the Rules. The Claimant is an adult; 23 years of age at the time of the decision. She was an adult, obviously, when she married even though she came here when she was 17. The precarious immigration status of the Claimant was obvious when they entered a religious marriage in 2009. Nothing that I have been referred to arguably demonstrates that there was anything exceptional or compelling to require a consideration of Article 8 beyond those matters that were dealt with in the Rules."
That reasoning reflects the Secretary of State's Amended Summary Grounds of Defence, in which it was contended that, whatever the force of the procedural points, Ms Khalid had no arguable claim based on article 8 outside the Rules. Reliance was placed on the analysis by Sales J in Nagre of the effect of the Strasbourg jurisprudence (which I set out at para. 73 below). We have the transcript of the hearing, from which it is clear that this was also the main thrust of counsel's oral submissions. When the Judge put the point to Mr Malik in his reply his response was that it was enough at the permission stage that the Secretary of State had applied the wrong Rules: the materiality of that error was a matter for the full hearing.
- Ms Khalid lodged an Appellant's Notice in respect of that decision. The original grounds were amended. In their amended form they assert that there were in her case "exceptional and compelling reasons" why refusal of leave to remain would breach her rights under article 8 and which were not addressed in the new Rules. The only such circumstance specifically identified is that she originally became an overstayer when she was a minor, as a result of decisions taken by her mother. There is no reference to the obstacles to her returning to Pakistan to apply for entry clearance, either with her husband or without.
- Permission to appeal was initially refused on the papers by Maurice Kay LJ. But at a hearing on 24 October 2014 Gloster LJ gave permission to appeal on three grounds, based closely on Mr Malik's "Advocate's Statement", which she set out in a brief judgment, as follows:
(1) That it was wrong for the Secretary of State to rely on the new Rules because her application pre-dated 9 July 2012. Mr Malik told Gloster LJ about Edgehill and Haleemudeen and that permission had been given in Mr Singh's case: she directed that the two appeals be listed together. I am bound to observe that though that was indeed an arguable point, it was not a ground for challenging Professor Grubb's decision because he had accepted Mr Malik's case on it.
(2) That Professor Grubb was wrong to rely on what Sales J had said in Nagre about it being unnecessary in every case to proceed to a substantial second stage, since that had been disapproved by this Court in R (MM) v Secretary of State for the Home Department  EWCA Civ 985.
(3) That the Secretary of State had been obliged as a matter of law to consider her article 8 rights outside the Rules. Mr Malik relied on the judgment of Mr Michael Fordham QC, sitting as a Deputy High Court Judge, in R (Ganesabalan) v Secretary of State for the Home Department  EWHC 2712 (Admin), which contains an analysis of the judgment of Sales J in Nagre. This seems to be a different route to what is ultimately the same point as (2).
I observe at this stage that none of those grounds engaged with the actual basis on which Professor Grubb refused permission to apply for judicial review.
- The general issue raised by both these appeals – "issue (A)" – is whether the new Rules should have been applied in these two cases, given that in both the original application was made before 9 July 2012.
- In Ms Khalid's case there is a further issue about whether the Secretary of State's decision was vitiated by her failure to apply the two-stage approach by considering her article 8 claim outside the Rules. The issue was developed by Mr Malik by reference to the discussion of Nagre in MM (Lebanon) and Ganesabalan; but in truth it would arise in any event by reference to the guidance in Izuazu and Nagre, irrespective of the subsequent authorities. It will be recalled that Mr Singh also took in the Upper Tribunal a point, albeit a rather different one, about how the First-tier Tribunal had dealt with the second stage. It is debatable whether that issue is live before us but I will address it in the interests of completeness. I will refer to these issues about the two-stage approach compendiously as "issue (B)".
(A) DO THE NEW RULES APPLY TO APPLICATIONS MADE BEFORE 9.7.12 ?
- The first question under this head is what the position was under HC 194 as first implemented, which requires a consideration of the conflicting decisions in Edgehill and Haleemudeen. But it is also necessary to consider whether that position was changed by HC 565, being the further Statement of Changes referred to above which was effective from 6 September 2012. I take those questions in turn.
THE POSITION UNDER HC 194
- The starting-point must be the well-known decision of the House of Lords in Odelola v Secretary of State for the Home Department  UKHL 25,  1 WLR 1230. This establishes the general rule that changes in the Immigration Rules apply not only to applications for leave to enter or remain made on or after the date that they take effect but also to applications pending as at that date. But it was recognised that that would not be so where the Statement of Changes in question contained an express indication to the contrary: see per Lord Brown at para. 39 (p. 1241B).
- Mr Malik submits that the implementation provision in HC 194 plainly constitutes a contrary indication of the kind envisaged in Odelola, with the result that the new Rules should be ignored in considering any application made prior to 9 July 2012. To repeat, that provision reads:
"However, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012."
- That submission was accepted by this Court in Edgehill. The facts of that case, which involved conjoined appeals by applicants referred to as JE and HB, can be sufficiently summarised as follows:
(1) JE applied for leave to remain on 22 August 2011, relying inter alia on the length of her residence in the UK. She could not satisfy the long residence requirements under Part 7 and accordingly relied on article 8. Her appeals to the First-tier Tribunal and the Upper Tribunal were dismissed. The Upper Tribunal said this:
"In considering her length of residence in the UK we have regard to paragraph 276ADE of the Immigration Rules (as amended). That paragraph came into force on 9 July 2012, that is after the date of the immigration decision and the hearing in the First-tier Tribunal. However, Article 8 appeals are decided on the facts as at the date of the hearing and, whilst this was a decision made before the new Rules came into effect and therefore have no direct application and not retrospective, we consider it appropriate to give weight to the new Rules as being an expression of the legislature's views as to where the public interest lies."
The Tribunal noted that she had in fact by the time of the hearing before it attained fourteen years' continuous residence, but it said that that was less than the twenty years now required under paragraph 276ADE (iii).
(2) The facts of HB's case were essentially similar. She too made an application prior to 9 July 2012. She relied solely on article 8. Her application was refused, and her appeals to the First-tier Tribunal and the Upper Tribunal were unsuccessful. The Secretary of State and both Tribunals relied on the fact that she could not satisfy the twenty-year residence requirement in paragraph 276ADE (iii), though in her case she could not have satisfied the fourteen-year requirement either.
- Those being the facts, the issue, as defined by the Court, was "whether it is lawful to reject an article 8 application made before 9 July 2012 in reliance upon the applicant's failure to achieve 20 years' residence, as specified in the new rules" (see para. 21 of the judgment of Jackson LJ): that is of course precisely the issue in Mr Singh's case. Counsel for the appellants, one of whom was Mr Malik, relied on the implementation provision. They submitted that that made it quite clear that applications made prior to 9 July 2012 would be decided under the old Rules, and thus that the new rules, and specifically paragraph 276ADE (iii), must be disregarded. Counsel for the Secretary of State argued that an application under the old regime based purely on article 8 was not made under the Rules at all, old or new, and that accordingly the implementation provision did not bite, so that the Secretary of State was entitled on ordinary principles to consider the issue under article 8 by reference to her current policy, of which paragraph 276ADE was an expression; and the same applied to the Tribunals. No reference was made to any subsequent Statement of Changes, though, as will appear below, at least one was highly material.
- Judgment was handed down on 2 April 2014. The only substantive judgment was delivered by Jackson LJ (the other members of the Court being Laws and Black LJJ). He rejected the Secretary of State's submission. He observed at para. 31 of his judgment that it "produces the bizarre result that the new rules impact upon applications made before 9 July 2012, even though the transitional provisions [i.e. the implementation provision] expressly state that they do not do so". He continued, at para. 32:
"The Immigration Rules need to be understood not only by specialist immigration counsel, but also by ordinary people who read the rules and try to abide by them. I do not think that [counsel's] interpretation of the transitional provisions accords with the interpretation which any ordinary reader would place upon them."
He did, however, add a caveat that a decision should not be invalidated simply by a passing reference to paragraph 276ADE: it would only be vitiated if the decision-maker had treated its provisions "as a consideration materially affecting the decision" (see para. 33). JE's appeal was allowed, but HB's was dismissed on the basis that her article 8 was claim was weak and that the Secretary of State and the tribunals would have made the same decision even if they had not had regard to the new Rules.
- I turn to Haleemudeen, which was argued in this Court on 15 April 2014, i.e. two weeks after judgment was given in Edgehill. The appellant had applied on 28 February 2012 for indefinite leave to remain on the basis that he had ten years' continuous lawful residence and accordingly came within the terms of paragraph 276B of the old Rules. The Secretary of State refused that application on 1 October 2012, and at the same time concluded that the appellant's removal would not breach his article 8 rights. The First-tier Tribunal allowed the appellant's appeal on the basis of article 8, but the Upper Tribunal in turn allowed an appeal from that decision.
- The only substantial judgment was given by Beatson LJ (the other members of the Court being Sullivan and Sharp LJJ). He held that the Judge in the First-tier Tribunal had made an error of law "because he did not consider Mr Haleemudeen's case for remaining in the United Kingdom on the basis of his private and family life against the Secretary of State's policy as contained in Appendix FM and Rule 276ADE of the Immigration Rules": see para. 40 of his judgment. At para. 41 he pointed out that the reasoning of the Judge in the First-tier Tribunal had not referred to the new rules except in the context of summarising a submission made on behalf of the appellant that they were immaterial "because at the time of Mr Haleemudeen's application those Rules had not been promulgated and thus did not apply to his case". He continued:
"That submission could not succeed in view of the decision in the House of Lords in Odelola … ."
He summarised this part of his reasoning at para. 51 as follows:
"To conclude, the UT was entitled to set aside the FTT's decision as flawed on Wednesbury grounds because the FTT failed to take account of a relevant consideration, the Secretary of State's new policy contained in Rule 276ADE and Appendix FM of the Immigration Rules."
- Regrettably the Court in Haleemudeen was not referred to Edgehill. It was of course a very recent decision, and neither counsel had appeared in it; but it decided an important issue of principle, and one would have hoped that the Treasury Solicitor could have ensured that it came promptly to the attention of those handling cases raising similar issues. Equally regrettably, the Court's attention was not drawn to the implementation provision itself. Those omissions led to a curious sequel. When the case came back before the Upper Tribunal (comprising Simler J and Judge Kopieczek) counsel for Mr Haleemudeen submitted that the decision in this Court was, in effect, per incuriam because of the failure to refer to Edgehill; and the Home Office presenting officer conceded that that was indeed so. The Upper Tribunal accordingly went on to decide the case under the old regime – that is, by reference to "unvarnished article 8": see  UKAIT URIA242522012. Mr Blundell told us that the presenting officer's concession was made without consulting his superiors at the Home Office and that if he had done so the concession would not have been made.
- Mr Blundell contended that there was in truth no conflict between the decisions in Edgehill and Haleemudeen. His point was that in Edgehill the only issue was whether the appellants could rely on the fourteen-year period in the old Rules notwithstanding its effective substitution in the new Rules by a twenty-year period, whereas in Haleemudeen the Court was concerned with the broader question of whether, when considering after 9 July 2012 applications made before that date, the Court could take into account in assessing the proportionality of removal the Secretary of State's assessment as reflected in the new Rules. I do not accept that distinction. I believe that it necessarily follows from Jackson LJ's reasoning in Edgehill that the provisions of the new Rules cannot be applied to pending applications for any purpose. The approach for which Mr Blundell contends is the very approach taken by the Upper Tribunal in JE's case which Jackson LJ rejected – see para. 34 (1) above. Accordingly I have no doubt that Edgehill and Haleemudeen are indeed inconsistent.
- If the outcome on issue (A) depended on making a choice between Edgehill and Haleemudeen I would follow Edgehill. Although formally the situation may fall within the first exception in Young v Bristol Aeroplane Co. Ltd.  KB 718 (see p. 729), in that we are confronted by two conflicting decisions of this Court, the truth is that Haleemudeen was decided per incuriam because of the failure to draw the Court's attention to the implementation provision; and in those circumstances I think that the better view is that we should treat ourselves as bound by Edgehill. But even if we were free to make a choice, I find Jackson LJ's reasoning persuasive. The language of the implementation provision would, as he says, convey to any ordinary person who consulted the Statement of Changes that he or she could ignore it if their application was made prior to 9 July 2012.
- I have considered with care the qualification expressed by Arden LJ in her judgment, and I would not wish to rule out the possibility that there might be cases of the kind she envisages. But the situation with which we are concerned here is one where the Secretary of State claims to be entitled to have regard to a corpus of new, and highly specific, Rules, in cases where she has said in terms that the applications made prior to 9 July 2012 will be decided in accordance with the old Rules. I do not believe that she can escape from that plain commitment by arguing that the new Rules are not being relied on as such but rather as an articulation of her new view of what the public interest requires. As I have said above, it seems to me that that very argument was considered and rejected in Edgehill. I would add, in connection with Arden LJ's endorsement of Mr Blundell's submission that it is difficult for the Secretary of State to have more than one view of what the public interest requires at any one time, that I can see nothing wrong in principle in a view that the public interest requires her to adopt a particular approach for the future while retaining an earlier approach as regards pending applications.
- I think, though this point was not in fact made by Mr Blundell (nor apparently in Edgehill), that the effect of the implementation provision as I would hold it to be does in at least one respect conflict with what appears in the body of the new Rules themselves. I do not think there is a problem with the opening words of Appendix FM (see para. 10 above) or the language of paragraphs A277 and A278 (see para. 12): although they might, if taken in isolation, be read as being intended to apply the provisions of the Appendix to pending applications, such a provision would be unnecessary in the light of Odelola, and I think that if they are read in context they are concerned, as I say at para. 13 above, with which provisions of the old Part 8 survive under the new regime rather than which applications the new regime applies to. However, paragraph A279 (again, see para. 12) does contain an explicit statement that the suitability provisions of Appendix FM should apply "where a decision is made on or after 9 July 2012, irrespective of the date the application was made": that seems to me inescapably to provide that the provisions in question should apply to pending applications. That is interesting inasmuch as it suggests that the draftsman thought that that would not be the case unless he made specific provision; but it does raise the question whether it can trump the effect of the implementation provision. The point is of no substantial importance because no issue about suitability arises in these cases, but for what it is worth it seems to me that the implementation provision should prevail, because the message that it gives the reader is that if his or her application pre-dates 9 July 2012 it is unnecessary to read any further.
THE EFFECT OF HC 565
- It is Mr Blundell's case that, even if, as I would hold, the position under HC 194 was that the new Rules did not apply to pending applications, that ceased to be the case from 6 September 2012 by reason of changes made by paragraph 75 of HC 565. That paragraph inserts into Part 8 three new paragraphs, A277A-A277C, to follow immediately after paragraph A277. Paragraph A277A is irrelevant for our purposes. Paragraphs A277B and A277C read as follows:
"A277B. Where the Secretary of State is considering an application for indefinite leave to remain to which Part 8 of these rules continues to apply (excluding an application from a family member of a Relevant Points Based System Migrant) and where the application does not meet the requirements of Part 8 for indefinite leave to remain or limited leave to remain:
(a) the application will also be considered under paragraphs R-LTRP.1.1.(a), (b) and (d), R-LTRPT.1.1.(a), (b) and (d) and EX.1. of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of these rules;
(b) if the applicant meets the requirements for leave under those paragraphs of Appendix FM or paragraphs 276ADE to276DH (except the requirement for a valid application under that route), the applicant will be granted leave under those provisions; and
(c) if the applicant is granted leave under those provisions, the period of the applicant's continuous leave under Part 8 at the date of application will be counted towards the period of continuous leave which must be completed before the applicant can apply for indefinite leave to remain under those provisions.
A277C. Subject to paragraphs A277 to A280 and paragraph GEN.1.9. of Appendix FM of these rules, where the Secretary of State is considering any application to which the provisions of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of these rules do not already apply, she will also do so in line with those provisions."
HC 565 has no equivalent to the implementation provision in HC 194, so in accordance with the principle in Odelola it applies to applications pending as at the date of its implementation.
- Mr Blundell advanced that case, albeit in somewhat allusive terms, in his skeleton arguments in both cases. In his oral submissions he focused on paragraph A277B. The drafting of the paragraph is complicated, but he submitted that the effect of head (a) was that, where an application fell for consideration under the old Rules but failed to satisfy their requirements, any separate consideration of article 8 "outside the Rules" should be subject to the private life and family life provisions of the new Rules; and thus that the Secretary of State in both cases, and the Tribunals in Singh, had been entitled to take those provisions into account. In his written post-hearing submissions, however, while he continued to refer to paragraph A277B, he relied also on paragraph A277C, saying that this:
"… clarified that where the Secretary of State was considering Article 8, including in respect of an application made before 9 July 2012 which did not meet the requirements of the Rules under which the application had been made, this consideration should be in line with the new Immigration Rules on family and private life in Appendix FM and paragraphs 276ADE to 276DH."
- Mr Malik in his post-hearing submissions in response contended that Mr Blundell should not be entitled to rely on paragraph A277C, since he had not referred to it in his oral submissions. I do not accept this. It was referred to in his skeleton arguments in both cases, and the fact that it was not expressly mentioned in his oral submissions no doubt reflected the constraints imposed by the regrettably tight timetable. It is of course important that the parties should not be disadvantaged by that timetable, but Mr Malik, without prejudice to his objection, has addressed the argument based on paragraph A277C in his written submissions and I am satisfied that he has had a full opportunity to put his case.
- On the face of it paragraph A277C does indeed have the effect contended for by Mr Blundell. For the reasons given above, Appendix FM and paragraphs 276ADE-276DH did not, as at the point that HC 565 took effect, "already apply" to the Appellants' applications; and the paragraph provides that in such a case the Secretary of State will "also [consider the applications] in line with those provisions". That is slightly odd phraseology, but the only sense that I can give to it is that the provisions in question will be applied so far as relevant. It is true that that is expressed to be "subject to paragraphs A277-A280 and paragraph GEN 1.9 of Appendix FM". Mr Malik took a point on the reference to paragraphs A277-A280, which I consider at para. 51 (3) below. He took no point on GEN 1.9 of Appendix FM, but out of abundance of caution I have looked at it. Its effect is opaque, but it seems to be concerned with purely procedural questions.
- Mr Malik in his written submissions advances four contrary arguments, which I take in turn.
- First, he points out that HC 565 does not purport to amend the implementation provision at the start of HC 194, and he submits that so long as that provision stands it would be bizarre if the new Rules could apply to a pending application. I do not see any anomaly here. The Secretary of State initially intended that the new Rules should not apply to pending applications, but later changed her mind – I dare say in response to the feedback from caseworkers to which Mr Blundell referred. As long as the language of HC 565 is effective to make that change, there was no need for her to amend HC 194: the implementation provision is simply (in this respect) superseded. (HC 565 is not of course retrospective, so the implementation provision in HC 194 remained effective as regards decisions made between 9 July and 6 September 2012.)
- I should reproduce Mr Malik's second submission in full. It reads:
"Second, headings are important. Paragraphs A277, A277B and A277C are in Part 8 of the Immigration Rules and fall under the main headings 'Family Members', and sub-heading, 'Transitional provisions and interaction between Part 8 and Appendix FM and Appendix FM – SE'. It is clear that the Paragraph A277C relates to applications under Part 8 of the Immigration Rules. It would not have been in Part 8 and under these headings if it was of universal application and related to all applications (whether under other Parts of the Immigration Rules or outside the Immigration Rules). The objective of this provision is that where someone seeks leave to remain solely under Part 8 after 9 July 2012 but fails for some reason, the Secretary of State is able to, if she deems it appropriate, consider the matter under the new rules, even if new rules do not apply because of the application of Paragraphs A277 and A280. This is clear from the phrase 'subject to paragraphs A277 to A280' used at the outset. The provision is therefore not intended to alter the position as to the implementation provision in HC 194 but was directed to post 9 July 2012 applications which were, because of Paragraphs A277 and A280, not 'already' subject to the new rules."
- That submission rolls up various distinct points, which I address as follows:
(1) It is a fair point that the placing of these paragraphs in Part 8 suggests that they are only concerned with applications to which that Part applies. That would not assist Ms Khalid, but it would assist Mr Singh, whose claim is based on private life rather than family life. This has given me some pause; but in the end it seems to me that the point based on the placing of the paragraph must yield to its explicit language. Paragraph A277C does not (unlike paragraph A277B) contain any express reference to Part 8, and the reference to "paragraphs 276ADE to 276DH (private life)" would, it seems to me, be wholly redundant if it were directed only at claims relying on family life. It is material to note that this anomaly is not new, because paragraph A279, which formed part of the new section introduced into Part 8 by HC 194, itself purported to apply to applications under Part 7: see para. 12 above.
(2) What Mr Malik suggests as "the objective of this provision" may have some relationship to the language of paragraph A277B, though I am not sure whether it is correct even in that context; but I can see no basis for it in the language of paragraph A277C.
(3) The phrase "subject to paragraphs A277 to A280" does not seem to me to advance Mr Malik's case. I have already made the point (see para. 43 above) that the concern of these provisions appears to be to identify which of the provisions of the old Rules continue to apply under the new regime rather than to specify that the new regime applies to pending applications.
- Mr Malik's third submission relies on a change made to paragraph A277C by a yet further Statement of Changes, to which I have not so far referred. Paragraphs 226-227 of HC 760, which was promulgated on 22 November 2012 and took effect from 13 December, amended paragraph A277C so that it read:
"Subject to paragraphs A277 to A280 and paragraph GEN.1.9. of Appendix FM of these rules, where the Secretary of State deems it appropriate, the Secretary of State will consider any application to which the provisions of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of these rules do not already apply, under paragraphs R-LTRP.1.1.(a), (b) and (d), R-LTRPT.1.1.(a), (b) and (d) and EX.1. of Appendix FM (family life) and paragraph 276ADE (private life) of these rules. If the applicant meets the requirements for leave under those provisions (except the requirement for a valid application), the applicant will be granted leave under paragraph D-LTRP.1.2. or D-LTRPT.1.2. of Appendix FM or under paragraph 276BE of these rules."
Mr Malik's point does not relate to the re-formulation of the second part of the paragraph, which he does not suggest makes any change material to these cases, but to the introduction of the phrase "where the Secretary of State deems appropriate". His point is that there is no sign that the Secretary of State in either case made a considered decision that it was "appropriate" to apply the new Rules. The language in both decision letters was standard-form and suggested that the new rules were applied simply because they were thought apply to all applications, whenever made, not because she deemed it appropriate under paragraph A277C.
- I should say by way of preliminary that it is unsatisfactory that the Secretary of State, who was relying on paragraph A277C, did not put before us a consolidated copy of the paragraph in the form in which it stood at the dates of the relevant decisions. HC 760 was in a late-submitted supplementary bundle, but no reference was made to it, and the submissions at the hearing proceeded on the basis that the correct text of paragraph A277C could be found in HC 565. That does in fact appear to be so in the case of Mr Singh, since the decision in his case was taken in October 2012, before HC 760 was promulgated. But in the case of Ms Khalid, Mr Malik is right to refer to the new version. However, I do not believe that his point based on the new wording is good. In my view the fact that the Secretary of State chose to apply the new Rules sufficiently demonstrates that she "deemed it appropriate" to do so: it is not necessary to demonstrate a separate reasoned consideration of the question on a case-by-case basis.
- Mr Malik's fourth point is that paragraph A277C is irrelevant because Mr Singh had not applied under Part 8 but under the long residence provisions of Part 7 and Ms Khalid's application was based on article 8 "outside the Rules". But paragraph A277C does not specify that the Secretary of State will consider applications under the new Rules only where they have been made "under Part 8". The intention is plainly that she will apply "the provisions of Appendix FM (family life)" to all applications based on family life and "the provisions of paragraphs 276ADE to 276DH (private life)" to all applications based on private life.
- For those reasons I believe that paragraph A277C applies to the present cases. It is thus unnecessary for me to consider the effect of paragraph A277B, though my initial impression is that it is not relevant to the present question.
CONCLUSION ON ISSUE (A)
- The foregoing analysis has regrettably been somewhat dense, but I can summarise my conclusion, and the reasons for it, as follows:
(1) When HC 194 first came into force on 9 July 2012, the Secretary of State was not entitled to take into account the provisions of the new Rules (either directly or by treating them as a statement of her current policy) when making decisions on private or family life applications made prior to that date but not yet decided. That is because, as decided in Edgehill, "the implementation provision" set out at para. 7 above displaces the usual Odelola principle.
(2) But that position was altered by HC 565 – specifically by the introduction of the new paragraph A277C – with effect from 6 September 2012. As from that date the Secretary of State was entitled to take into account the provisions of Appendix FM and paragraphs 276ADE–276DH in deciding private or family life applications even if they were made prior to 9 July 2012. The result is that the law as it was held to be in Edgehill only obtained as regards decisions taken in the two-month window between 9 July and 6 September 2012.
(3) Neither of the decisions with which we are concerned in this case fell within that window. Accordingly the Secretary of State was entitled to apply the new Rules in reaching those decisions.
- I should observe that both the decisions with which this Court was concerned in Edgehill were made after 5 September 2012, i.e. outside the window referred to above. It follows that, although its reasoning about the effect of HC 194 was, I believe, correct, the outcome would have been different if it had been referred to the changes introduced by HC 565 – which it was not. Mr Blundell acknowledged that that was so when the point was put to him in the course of his submissions. That is rather remarkable. It appears that one of the (admittedly many) objects of HC 565 was to "clarify" that the provisions of Appendix FM and paragraphs 276ADE–276DH should apply to pending applications; yet in a case which raised that very issue the Secretary of State neglected to rely on it. That might prompt second thoughts as to whether Mr Blundell's submissions based on HC 565 can indeed be right. But I fear that the true explanation is that the responsible officials in the Home Office have at least some of the same difficulties in keeping up with the consequences of the kaleidoscopic changes in their own rules as the rest of us do. There are other instances of that in the confusions which occurred in relation to Haleemudeen (see para. 39 above) and the failure to identify the form in which the Rules stood at the date of the decision in Ms Khalid's case (see para. 52).
- I should like to say something more about the point made in the previous paragraph. It is not uncommon for advisers in this field to need to know what the effect of the Rules was at some date in the past: despite the principle recognised in Odelola, historical information of this kind may be relevant in a variety of circumstances, as the present cases illustrate. Counsel were asked whether previous versions of the Rules were available online, either from legal publishers or on the Home Office website. In his post-hearing written submissions Mr Malik told us that he understood that it was possible to obtain from the National Archive website consolidated versions of the Immigration Rules as they stood at any given date. Mr Blundell, however, responded that that was not the case. The Home Office produces consolidated versions of the Rules following each Statement of Changes, and publishes the current version on its website, but previous versions are not displayed and whatever may be available from the National Archive is "not entirely accurate": the only way that a member of the public or practitioner can definitively ascertain the state of the Rules at a given time in the past is by perusal of the Statements of Changes. If that is really the case, it is unacceptable. The Statements of Changes are so frequent and so detailed that it would be intolerably laborious for anyone, even a specialist, to start with the current version and to work back, stage-by-stage, to establish how the Rules stood months or years previously. In my view it is essential that the Home Office should make available an archive of all previous consolidated versions of the Rules in a form that enables the public and practitioners to see clearly what rules were in force at any given date: if such an archive is not maintained for working purposes within the Home Office (which would be surprising) it will have to be created, though I pity whoever has to undertake the task.
- This problem is only one aspect of a wider problem about the complexity of the Rules about which other judges have recently complained: see, e.g., the observations of Jackson LJ in Pokhriyal v Secretary of State for the Home Department  EWCA Civ 1568, at para. 4, echoed by Beatson LJ in R (Global Vision College Ltd) v Secretary of State for the Home Department  EWCA Civ 659, at para. 11. Paragraph A277C, as amended by HC 760, which I set out at para. 52 above, is not alas untypical of the kind of rebarbative drafting which those trying to understand the Rules have to grapple with. I fully recognise that the Immigration Rules, which have to deal with a wide variety of circumstances and may have as regards some issues to make very detailed provision, will never be "easy, plain and short" (to use the language of the law reformers of the Commonwealth period); and it is no doubt unrealistic to hope that every provision will be understandable by lay-people, let alone would-be immigrants. But the aim should be that the Rules should be readily understandable by ordinary lawyers and other advisers. That is not the case at present. I hope that the Secretary of State may give consideration as to how their drafting and presentation may be made more accessible.
(B) FAILURE TO APPLY THE TWO-STAGE APPROACH
- I have referred at para. 3 above to the Secretary of State's intention that the requirements of the new Rules should in the generality of cases satisfy the requirements of article 8 of the European Convention of Human Rights, but also to her acknowledgment that that will not be so in every case, which gives rise to the "two-stage approach". In Izuazu the Upper Tribunal (comprising Blake J, Lord Bannatyne and Upper Tribunal Judge Storey) gave the following guidance about the approach to be taken by tribunals to cases involving claims for leave to enter or remain on the basis of family or private life:
"40. We accordingly further endorse the Upper Tribunal's observation in MF [that is, MF (Article 8 - new rules) Nigeria  UKUT 00393 (IAC)] that judges called on to make decisions about the application of Article 8 in cases to which the new rules apply, should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. If he or she does, there will be no need to go on to consider Article 8 generally. The appeal can be allowed because the decision is not in accordance with the rules.
41. Where the claimant does not meet the requirements of the rules it will be necessary for the judge to go on to make an assessment of Article 8 applying the criteria established by law.
42. When considering whether the immigration decision is a justified interference with the right to family and/or private life, the provisions of the rules or other relevant statement of policy may again re-enter the debate but this time as part of the proportionality evaluation. Here the judge will be asking whether the interference was a proportionate means of achieving the legitimate aim in question and a fair balance as to the competing interests.
43. The weight to be attached to any reason for rejection of the human rights claim indicated by particular provisions of the rules will depend both on the particular facts found by the judge in the case in hand and the extent that the rules themselves reflect criteria approved in the previous case law of the Human Rights Court at Strasbourg and the higher courts in the United Kingdom."
That passage refers to the approach to be taken by judges, but it of course applies equally to the Secretary of State and her officials as the primary decision-makers.
- The approach in Izuazu was endorsed in Nagre, which involved a generic challenge to the changes introduced by HC 194 on the basis that their effect was to exclude the possibility of claims which relied on article 8 "outside the Rules". Sales J rejected that argument. I need not set out his reasons for holding that the Secretary of State was not inhibited from considering such claims. But he continued, at para. 29 of his judgment:
"Nonetheless, the new rules do provide better explicit coverage of the factors identified in case-law as relevant to analysis of claims under Article 8 than was formerly the position, so in many cases the main points for consideration in relation to Article 8 will be addressed by decision-makers applying the new rules. It is only if, after doing that, there remains an arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8 that it will be necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under the new rules to require the grant of such leave."
He proceeded, at para. 30, to set out the passage from Izuazu which I have quoted above, but he added this (consonantly with what he had said at para. 29):
"The only slight modification I would make, for the purposes of clarity, is to say that if, after the process of applying the new rules and finding that the claim for leave to remain under them fails, the relevant official or tribunal judge considers it is clear that the consideration under the Rules has fully addressed any family life or private life issues arising under Article 8, it would be sufficient simply to say that; they would not have to go on, in addition, to consider the case separately from the Rules. If there is no arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8, there would be no point in introducing full separate consideration of Article 8 again after having reached a decision on application of the Rules."
- The Izuazu/Nagre approach has been applied in many cases in the Tribunals (though sometimes by reference to its later re-statement by Cranston J in Gulshan (Article 8 – new Rules – correct approach)  UKUT 640 (IAC)). It was endorsed in this Court in MF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1192,  1 WLR 544 – see para. 46 (p. 561 F-H) – albeit that it was held not to be applicable in the case of the provisions relating to deportation of foreign criminals with which that case was concerned because those provisions constituted "a complete code". Neither party questioned it before us. The only points raised relate to the "slight modification" to the Izuazu guidance offered by Sales J at para. 30 of his judgment in Nagre, in which he says that if it is clear that all the article 8 issues raised by an applicant have been adequately addressed by the consideration of the new Rules it is unnecessary to proceed to a further "full separate consideration of article 8". Those points arise from the two more recent cases on which Mr Malik relied.
- The first case is the decision of this Court in MM (Lebanon). The only substantive judgment is that of Aikens LJ (with whom the Vice-President, Maurice Kay LJ, and Treacy LJ agreed). Most of the issues with which the case is concerned are wholly remote from those in this appeal, but in one section of his judgment Aikens LJ had to consider Nagre. In para. 129 he refers to Sales J having said that "if a particular person is outside the rule then he has to demonstrate, as a preliminary to a consideration outside the rule, that he has an arguable case that there may be good grounds for granting leave to remain outside the rules": that is evidently a paraphrase of the second half of para. 29 of Sales J's judgment. He continues:
"I cannot see much utility in imposing this further, intermediary, test. If the applicant cannot satisfy the rule, then there either is or there is not a further Article 8 claim. That will have to be determined by the relevant decision-maker."
Mr Malik submitted – this being his second ground of appeal in Ms Khalid's case – that this short passage undermined the entirety of Sales J's point about a full separate consideration of article 8 not always being necessary.
- In my view that is a mis-reading of Aikens LJ's observation. He was not questioning the substantial point made by Sales J. He was simply saying that it was unnecessary for the decision-maker, in approaching the "second stage", to have to decide first whether it was arguable that there was a good article 8 claim outside the Rules – that being what he calls "the intermediary test" – and then, if he decided that it was arguable, to go on to assess that claim: he should simply decide whether there was a good claim outside the Rules or not. I am not sure that I would myself have read Sales J as intending to impose any such intermediary requirement, though I agree with Aikens LJ that if he was it represents an unnecessary refinement. But what matters is that there is nothing in Aikens LJ's comment which casts doubt on Sales J's basic point that there is no need to conduct a full separate examination of article 8 outside the Rules where, in the circumstances of a particular case, all the issues have been addressed in the consideration under the Rules.
- I turn to Ganesabalan, on which Mr Malik relies in support of his third ground. That was a case where the new Rules applied and where the Secretary of State in her decision letter had, as in Ms Khalid's case, rejected the claimant's application under article 8 simply on the basis that he could not satisfy the requirements of paragraph 276ADE or Appendix FM and had given no express consideration to whether he had an article 8 case outside those Rules. The claimant said that that was inconsistent with the guidance in Izuazu and Nagre. The Secretary of State argued that Sales J's observations at para. 30 of his judgment in Nagre meant that such consideration was unnecessary. Mr Fordham rejected that argument and quashed the decision. At para. 9 of his judgment he summarises the position in law as follows:
"Where a person seeks leave to remain, relying on private life or family life or both, and relying on Article 8, and where the claim fails at the first stage by reference to the applicable Immigration Rules (Appendix FM and Rule 276ADE):
(1) There is always a "second stage" in which the Secretary of State must consider the exercise of discretion outside the Rules and must be in a position to demonstrate that she has done so.
(2) The extent of that consideration and the extent of the reasoning called for will depend on the nature and circumstances of the individual case.
(3) In a case in which the consideration or reasoning is legally inadequate, and leaving aside cases in which there is a right of appeal to a tribunal, it is open to the Secretary of State to resist the grant of judicial review if she is able to demonstrate that the decision would inevitably have been the same."
In connection with point (1), Mr Fordham, at paras. 21-30 of his judgment, conducts a careful examination of the relevant cases, including Nagre, with a view to establishing that, even where the decision-maker is entitled to conclude that a separate consideration of article 8 outside the Rules is unnecessary because all the issues raised have been dealt with at the first stage, a conscious decision to that effect is required.
- Point (3) in Mr Fordham's summary broadly reflects earlier authorities, though there is a fuller and more authoritative exposition in the judgment of Beatson LJ in Haleemudeen, at paras. 59-61. I would not disagree with either of points (1) and (2); but I am conscious of how practitioners in this field can sometimes seek to exploit even the faintest ambiguity, and I would accordingly wish to make three comments about point (1):
(1) I should emphasise – though it is in truth entirely clear from the full judgment – that Mr Fordham's statement that "there is always a second stage" does not in any way qualify what Sales J says at para. 30 of his judgment in Nagre. Sales J's point is that the second stage can, in an appropriate case, be satisfied by the decision-maker concluding that any family life or private life issues raised by the claim have already been addressed at the first stage – in which case obviously there is no need to go through it all again. Mr Fordham's point is that that is a conclusion which must be reached as a matter of conscious decision in any given case and cannot simply be assumed. I agree with both points.
(2) The statement that the decision-maker "must be in a position to demonstrate" that he or she has given the necessary consideration is simply a reflection of the ordinary obligation to record a material decision. If the decision-maker's view is straightforwardly that all the article 8 issues raised have been addressed in determining the claim under the Rules, all that is necessary is, as Sales J says, to say so.
(3) It may not be entirely apt to describe a decision as to whether article 8 requires that an applicant be given leave outside the Rules as an "exercise of discretion".
- In short, neither MM (Lebanon) nor Ganesabalan undermines the point made by Sales J in para. 30 of his judgment in Nagre, which in my view, together with his endorsement of the approach in Izuazu, remains good law.
- As noted at para. 23 above (and as in Ganesabalan), the decision letter in Ms Khalid's case treated the fact that she could not satisfy the requirements of the new Rules as definitive. There is no record of any consideration of whether her claim under article 8 involved issues that were not adequately addressed by reference to the Rules. Indeed there is no reference to the possibility of a claim outside the Rules at all. Mr Malik submitted that it necessarily followed that the decision was unlawful. As I have already observed, he was entitled to make that submission on the basis of Izuazu and Nagre, without any reference to MM (Lebanon) or Ganesabalan: even if this is a case potentially caught by Sales J's "modification", there was no evidence that the Secretary of State had considered the point at all.
- Mr Blundell did not seek to defend the Secretary of State's failure to address the question of whether Ms Khalid had a claim outside the Rules. In my view he was right not to do so. I agree with Mr Fordham in Ganesabalan that a decision-maker must in every case where an application is advanced under article 8 consider whether the first-stage consideration under paragraph 276ADE and/or Appendix FM addresses all the article 8 issues raised, even if the result of that consideration is simply a statement that it does. We were told that it has in fact been the Secretary of State's practice since May 2013 to include an express consideration of article 8 "outside the Rules" in her decision letters in all such cases.
- However, Mr Blundell submitted that a procedural failure of this character did not necessarily render the Secretary of State's decision unlawful. He relied on the decisions of the House of Lords in Belfast City Council v Miss Behavin' Ltd  UKHL 19,  1 WLR 19, and R (Nasseri) v Secretary of State for the Home Department  UKHL 23,  1 AC 1, which establish, to quote from the headnote in Nasseri, that "when a claimant seeking judicial review alleged infringement of a Convention right the court was concerned not with the quality of the decision-making process but with whether the claimant's rights had been … violated". Thus it did not matter whether the Secretary of State had failed consciously to consider whether Ms Khalid had an article 8 claim outside the Rules unless there was in fact such a claim – or, since we are concerned with a permission application, whether it is arguable that there was. That question was directly considered by Professor Grubb in his judgment in the present case (albeit that he came to it by a somewhat different route), and he concluded that her claim was indeed hopeless: see para. 26 above.
- In my view Mr Blundell is right that the present case falls within the principles stated in Miss Behavin' and Nasseri. Ms Khalid's claim was, in the relevant respects, outside the Rules, and she can only challenge the Secretary of State's decision by showing a substantive breach of her rights under article 8. That is in form a different approach from that advanced by Mr Fordham at point (3) of his summary in Ganesabalan, since he treats the failure of the Secretary of State to consider the claim outside the Rules as itself rendering her decision unlawful, though if the overlooked claim was hopeless the Court would not grant relief. But in substance the two approaches come to much the same thing. The appeal should be allowed if Ms Khalid had an arguable article 8 claim outside the Rules but not if she did not.
- At this point it is necessary to remember the scope of the points on which Ms Khalid was given permission. She was not given permission to challenge Professor Grubb's conclusion that she had no arguable case on article 8 outside the Rules and, consistently with the stance adopted below, Mr Malik did not seek to do so in his skeleton argument lodged since the grant of permission. When this was put to him in his oral submissions he sought to rely on the skeleton argument lodged with the original Appellant's Notice, which set out what were said to be the "exceptional facts" of Ms Khalid's case. These are rather discursive, but they seem to come down to (a) the point made in the original Grounds that she was still a minor when she first overstayed; (b) the assertion that she has no home and family in Pakistan to go back to during whatever period was necessary for her to apply for entry clearance from Pakistan; and (c) the claim that her husband, as a British national who had never lived in Pakistan and had all his ties and responsibilities here, could not reasonably be expected to go with her to Pakistan for an indefinite period. Reference was again made to Forrester and also to the decision of this Court in R (AB (Jamaica)) v Secretary of State for the Home Department  EWCA Civ 1302,  1 WLR 1893. Mr Blundell did not respond on this aspect of the appeal, though it is fair to say that he had very limited time at his disposal.
- I do not believe that the points on which Mr Malik relies are open to him. They do not reflect the way that the case was put before the Judge or the basis on which he was given permission. They were not raised in his skeleton argument for the hearing before us and only emerged in response to questions from the Court. In any event, I would not have felt able on the basis of such limited materials as are before us to say that Professor Grubb was wrong to conclude that the matters pleaded did not amount to a viable case that the refusal of leave to remain was disproportionate. Even if she was still (just) a minor when her visa expired Ms Khalid was an adult when she married and she should have been well aware that she had no right to remain and that her immigration position was precarious. In Nagre Sales J carried out a careful review of the Strasbourg case-law and concluded, at para. 42, that it indicated that
"… in a precarious family life case, where it is only in "exceptional" or "the most exceptional" circumstances that removal of the non-national family member will constitute a violation of Article 8, the absence of insurmountable obstacles to relocation of other family members to that member's own country of origin to continue their family life there is likely to indicate that the removal will be proportionate for the purposes of Article 8".
The Judge plainly had that guidance in mind. It is now well established that it is not necessarily disproportionate for a spouse to be required to leave the country to obtain entry clearance from abroad: see Secretary of State for the Home Department v Treebhowan  EWCA Civ 1054.
- As I have indicated above, the only ground that appears to have been advanced before Christopher Clarke LJ when he gave permission was issue (A); and Mr Malik did not in his skeleton argument before us advance the issue (B) ground in Mr Singh's case. But he did in his oral submissions stray into a criticism of the decision of the First-tier Tribunal, and I am prepared to address the point here.
- The form which issue (B) takes in Mr Singh's case is that it is said that Judge Deavin, while purporting, as a second stage, to consider article 8 outside the (old) Rules in fact constrained his consideration by treating the new Rules as a guide for that purpose: he was not therefore really considering the position "outside the Rules". There are individual passages in his determination that support that submission, but I agree with Judge Hanson that it is sufficiently apparent that he in fact carried out a broad general assessment of proportionality which weighed all the relevant factors and was not materially affected by his reference to the new Rules. The case seems to me to fall precisely within the terms of Jackson LJ's caveat in Edgehill which I set out at para. 36 above.
- On that basis this is a straightforward case where both the First-tier and the Upper Tribunals have held, on grounds which Mr Malik did not otherwise challenge, that Mr Singh has no article 8 claim outside the Rules.
- I would dismiss both appeals.
Lord Justice Lewison:
- I agree that the appeals should be dismissed for the reasons given by Underhill LJ.
Lady Justice Arden:
- I also agree that these appeals should be dismissed, but with the following qualification. I respectfully would not go so far as my Lords in paragraph 40 above and would not say that the distinction made by Mr Blundell is necessarily without foundation or that the reasoning of Jackson LJ necessarily goes so far as to decide that the Secretary of State can never rely on the new Rules in determining an application of the kind referred to in the implementation provision (as defined in paragraph 7 above). For my own part I would urge circumspection about those parts of the old Rules which we have not expressly considered, and leave them open to argument in an appropriate case when they arise.
- In Edgehill this court decided that a provision in the old Rules that a person should be entitled to indefinite leave to remain ("ILR") after 14 years' continuous residence applied to an application to which the implementation provision applied to the exclusion of a provision in the new Rules increasing the minimum period of years of residence to 20 years. That was the question which Jackson LJ posed at the start of the relevant passage and the question which he answered at the end of it. That ruling must apply to other specific provisions which are different in the new Rules from those in the old Rules.
- But suppose that the old Rules provide that a person may be entitled also to ILR if he has had only 10 years' continuous residence in the UK where, having regard to the public interest, there is no reason why it is undesirable he should be given ILR having regard to his long residence, age etc. The Rules would in this example refer to the public interest. There may be no reason why the old Rules cannot be interpreted on the basis that the meaning of the concept of the public interest is dynamic, and not static, and that on its true interpretation "the public interest" means the public interest as the decision-maker properly considers it to be at the time of her decision on the application. That public interest may also, in particular circumstances, be articulated in the new Rules.
- To use the new Rules in this way would not as I see it involve a departure from the implementation provision. (Nor does the implementation provision shut the applicant out from relying on some ground for ILR which was not contained in the old Rules if that ground is available to him.)
- The observations of Jackson LJ in Edgehill did not address the meaning of the concept of public interest: the argument before this court then was that either all Article 8 applications were outside the Rules or they had by their nature to be determined on the basis of the Rules as they stood at the date of the decision. As Mr Blundell submits, it is difficult for the Secretary of State to have more than one view of what the public interest requires on a particular matter at any one time, that is, one view of the public interest on that matter for the purposes of the current Rules and another one on the same matter for the purposes of the former Rules.