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Cite as: [2018] EWCA Civ 932

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Neutral Citation Number: [2018] EWCA Civ 932
Case No: C2/2015/4372

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UTJ CANAVAN

Royal Courts of Justice
Strand, London, WC2A 2LL
25/04/2018

B e f o r e :

LADY JUSTICE GLOSTER
(Vice President of the Court of Appeal (Civil Division))
LORD JUSTICE UNDERHILL
and
LADY JUSTICE ASPLIN

____________________

Between:
KHALIDA PARVEEN
Appellant
- and -

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

____________________

Zane Malik (instructed by Malik Law Chambers) for the Appellant
Vinesh Mandalia (instructed by the Treasury Solicitor) for the Respondent
Hearing dates: 30th January 2018

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Underhill :

    INTRODUCTION

  1. The Appellant is a Pakistani national now aged 44. She entered the UK on 25 May 2000 on a spouse visa by virtue of her marriage to a British national, Abdul Hamid. That leave expired on 25 May 2001. She failed to apply for leave to remain before that date. She eventually made such an application, thirteen years later, on 11 November 2014. That application was refused on 27 January 2015. She applied for permission to apply for judicial review of that decision, but permission was refused on the papers by UTJ Blum and at a hearing by UTJ Canavan. This is an appeal from that decision.
  2. I should start by summarising the reasons given by the Secretary of State for refusing the Appellant's application. The decision letter starts by considering the application under the Immigration Rules, first in accordance with the family member provisions in Appendix FM and secondly in accordance with the private life provisions of paragraph 276ADE. It then proceeds to consider whether there are any exceptional circumstances requiring a grant of leave outside the Rules. I take the three elements in turn.
  3. Appendix FM. In order to qualify for leave under the "partner route" the Appellant had to satisfy paragraph EX.1, and specifically limb (b). This applies where (so far as material):
  4. " 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 , and there are insurmountable obstacles to family life with that partner continuing outside the UK".

    The Secretary of State accepted that the Appellant was in a genuine and subsisting relationship with Mr Hamid but she decided that there were no insurmountable obstacles to family life with him continuing outside the UK. This aspect of the decision is not the subject of any challenge, and I need not set out the detailed reasoning.

  5. Paragraph 276ADE. The relevant provision of paragraph 276ADE is sub-paragraph (1) (vi) which applies where an applicant has lived continuously in the UK for less than 20 years and "there would be very significant obstacles to their integration in the country of return". The Secretary of State found that there were no such obstacles: I give her reasons in full below.
  6. Exceptional circumstances. As to this, the decision letter said:
  7. "It has also been considered whether your application raises any exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules.
    You have not raised any such exceptional circumstances, so it has been decided that your application does not fall for a grant of leave to remain outside the rules."
  8. The Appellant initially advanced three grounds of challenge to the Secretary of State's decision, but only two were pursued in the grounds of appeal to this Court, namely (in summary):
  9. (1) that the Secretary of State's decision as regards paragraph 276ADE (1) (vi) was contrary to the guidance appearing in her own published Immigration Directorate Instructions; and

    (2) that she had failed to give "an independent and proper consideration" to the claim under article 8 outside the Rules and that her decision was accordingly unlawful "on the guidance given in Singh and Khalid v Secretary of State for the Home Department [2015] EWCA Civ 74 and PG (USA) v Secretary of State for the Home Department [2015] EWCA Civ 118.

  10. Lindblom LJ gave permission on ground (1) on the basis that it raised a potentially important point about the correct approach to paragraph 276ADE (1) (vi) which had not previously been considered in this Court, although he discouraged the Appellant from expecting the appeal to succeed. In those circumstances he was prepared to give permission on ground (2) also, while observing that "its merits seemed slender at best".
  11. GROUND (1): PARAGRAPH 276ADE

    The Background Law

  12. Since the grant of permission this Court has had occasion to consider the meaning of the phrase "very significant obstacles to integration", not in fact in paragraph 276ADE (1) (vi) but as it appears in paragraph 399A of the Immigration Rules and in section 117C (4) of the Nationality Immigration and Asylum Act 2002, which relate to the deportation of foreign criminals. In Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813, [2016] 4 WLR 152, Sales LJ said, at para. 14 of his judgment:
  13. "In my view, the concept of a foreign criminal's 'integration' into the country to which it is proposed that he be deported is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of 'integration' calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life."
  14. That passage focuses more on the concept of integration than on what is meant by "very significant obstacles". The latter point was recently addressed by the Upper Tribunal (McCloskey J and UTJ Francis) in Treebhawon v Secretary of State for the Home Department [2017] UKUT 13 (IAC). At para. 37 of its judgment the UT said:
  15. "The other limb of the test, 'very significant obstacles', erects a self-evidently elevated threshold, such that mere hardship, mere difficulty, mere hurdles and mere upheaval or inconvenience, even where multiplied, will generally be insufficient in this context."

    I have to say that I do not find that a very useful gloss on the words of the rule. It is fair enough to observe that the words "very significant" connote an "elevated" threshold, and I have no difficulty with the observation that the test will not be met by "mere inconvenience or upheaval". But I am not sure that saying that "mere" hardship or difficulty or hurdles, even if multiplied, will not "generally" suffice adds anything of substance. The task of the Secretary of State, or the Tribunal, in any given case is simply to assess the obstacles to integration relied on, whether characterised as hardship or difficulty or anything else, and to decide whether they regard them as "very significant".

    The Secretary of State's Decision

  16. The starting-point must be to identify the evidence put forward by the Appellant in her initial application to the Secretary of State which might potentially show the existence of very significant obstacles to her reintegration in Pakistan.
  17. We were not shown the application form itself, which apparently contains nothing of substance. Mr Malik, who appears on the Appellant's behalf, relied on what is said in the covering letter from her solicitors, Malik Law Chambers ("MLC"). This does not in fact rely primarily on paragraph 276ADE, formulating the claim rather as being based on Appendix FM, alternatively on article 8 outside the Rules. In support of those claims the letter summarises the Appellant's immigration history and expatiates at some length, though with almost no particularity, on the degree of her integration into British society, the depth and extent of her friendships and social networks, and her law-abidingness and positive contributions to society; on the basis of all of which it is said that her life would be turned upside down by having to return to Pakistan. Despite one passing reference to paragraph 276ADE, there is no explicit attempt to address the requirements of sub-paragraph (1) (vi). There is, however, one passage which refers, albeit very summarily, to what life would be like for her in Pakistan. It reads:
  18. "Our client does not wish to return to Pakistan and is extremely distressed at this prospect. Our client is worthy of this leave. She appreciates that you must protect your borders but she cannot return to a country with which she has now lost all connections. She absolutely has no-one to return to in Pakistan that can support her."
  19. The material part of the Secretary of State's decision letter reads as follows:
  20. "It is not accepted that there would be very significant obstacles to your integration into Pakistan, if you were required to leave the UK. Whilst it is accepted that you may have some initial difficulty upon your return to Pakistan, it is noted that you are a healthy female aged 42 and whilst the material quality of your life in Pakistan may not be at the same level as it is in the United Kingdom, this does not give rise to any right to remain here.
    Although you may experience a degree of temporary hardship, it is expected that these difficulties could be overcome, bearing in mind your common language and in particular, your familiarity with Pakistani customs and culture.
    It is also considered that any family life which has been established during your time in the United Kingdom has been established in the full knowledge that your leave to remain in the United Kingdom was limited and you were therefore liable to removal at any time.
    It is considered that any interference with your private life is necessary and proportionate to the wider interest of the maintenance of an effective immigration policy. Moreover, it is considered that any such interference is in accordance with the law and is in pursuit of one of the permissible aims outlined in Article 8 (2).
    You have made the claim that you have friends in the UK, in support of your application. This has been taken into consideration, nevertheless, you are able to maintain contact with your friends and family in the UK and elsewhere via modern methods of communication, which are commonly available in Pakistan, such as email, telephone, letters.
    It is considered that even if it were accepted that you enjoy family or private life here, the SSHD is satisfied that you do not qualify under the Immigration Rules for the reasons set out above. It is also considered that any interference with your claimed family or private life would be in accordance with the law. You have remained illegally in the United Kingdom since 25 May 2001 and are therefore an immigration offender and your removal would in principle be in accordance with the law.
    Having spent 27 years in your home country and in the absence of any evidence to the contrary, it is not accepted that there are significant barriers preventing you from returning and integrating to your home country and therefore the Secretary of State is not satisfied that you can meet the requirements of Rule 276ADE(1)(vi)."

    (I should say that only the first two and the last of the paragraphs in that passage seem to me to be directed specifically at paragraph 276ADE (1) (vi). The intervening four paragraphs appear to go to a more general consideration of whether the Appellant's removal would involve a breach of article 8. Such lapses of focus are alas not uncommon in decision letters of this kind.)

    The Judicial Review Claim and Decision

  21. MLC sent a short pre-action protocol letter on 4 February 2015, the gist of which was that "exceptional and compelling circumstances have been set out in [the original application]" and that they should have led to a grant of leave. Nothing was said about paragraph 276ADE (1) (vi) and no new factual material was submitted.
  22. The Secretary of State replied on 19 February 2015, essentially repeating the reasoning of the original decision. Although MLC had not referred to paragraph 276ADE, the letter made the point that the Appellant had provided no new evidence and that there was no evidence to show that there would be very significant obstacles to her integration into Pakistan if she had to leave the UK.
  23. I have already summarised at para. 6 above the Appellant's grounds of claim as pleaded in the claim form. She did not rely on any new evidence. Section 8 of the form, which is where a claimant must state the facts relied on, supported by a statement of truth, simply cross-refers to the Statement of Grounds: these are concerned almost entirely with points of law and as regards the facts contain no more than a cross-reference to the original application and the pre-action protocol letter.
  24. I need not set out the terms of UTJ Blum's refusal of permission on the papers. At the hearing before UTJ Canavan the Appellant was represented by Mr Shahadoth Karim of counsel. The Judge dealt with the first ground, and his submissions on it, as follows:
  25. "The first ground merely points out the contents of the respondent's policy guidance: 'Family Life (as a Partner or Parent) and Private Life. 10-year route'. It is argued that the policy guidance states that the decision maker must consider all the reasons put forward by the applicant as to why there would be obstacles to their integration in the country of return. Mr Karim points out that the cover letter that was sent with the original application asserted that the applicant would return to Pakistan on her own. It had not been adequately taken into account. He also argued that the issue of exceptional and compassionate circumstances was also raised in the cover letter, but when asked to state what those exceptional circumstances were he could only refer back to the bare assertion that she would return to Pakistan alone.
    It is not arguable that the respondent erred in application of the policy guidance. The circumstances put forward by the applicant in the cover letter that accompanied the application for leave to remain were vague and there is no evidence in the applicant's bundle to support any of the assertions. The respondent's decision letter took into account the circumstances that were relevant to a proper assessment of whether the applicant could return to Pakistan. In any event, it is quite clear from the respondent's decision that there were no insurmountable obstacles to her husband travelling to Pakistan with her. That part of the decision does not form part of this particular challenge."

    The Appeal

  26. The Appellant's skeleton argument was drafted by Mr Darryl Balroop of counsel. It set out the passage from the Immigration Directorate Instruction referred to in the Grounds, but I need not reproduce it since no specific part of it is referred to in the submissions that follow. It seems that Mr Balroop, like Mr Karim in the UT, relied on it simply as supporting the trite proposition that the decision-maker must consider all the circumstances put forward in support of the contention that an applicant would face very significant obstacles to his or her integration in the country of return. None of Mr Balroop's submissions really address that question. That is not necessarily a criticism since, as I have shown, there was almost no straw in the original application with which he could make the necessary bricks. Instead, he focuses on the fact that the Appellant had been in the UK since 2000 on what was potentially that is, if the necessary further leave had been sought a basis approved by the Rules, namely as a spouse. He describes her case as "unique" and submits that the Secretary of State had failed to take account of her particular circumstances. In so far as that point has weight it seems to me clear that it falls to be deployed as an argument for the grant of leave on an exceptional basis outside the Rules and has nothing to do with this ground or paragraph 276ADE (1) (vi).
  27. Mr Malik in his oral submissions sensibly abandoned any reference to the Immigration Directorate Instruction, despite its apparent centrality to the pleaded ground, and did not (as regards this ground) seek to develop Mr Balroop's submissions in the skeleton argument. Instead he focused on the only possible argument, namely that the passage that I have quoted at para. 11 above from MLC's covering letter satisfied the requirement under paragraph 276ADE (1) (vi) to show very significant obstacles to the Appellant's reintegration in Pakistan, or in any event that it required a more elaborate assessment than was given in the passage from the decision letter quoted at para. 12 above.
  28. I cannot accept that submission. The bare assertion that the Appellant has "lost all connections" with Pakistan and has no-one there who can support her is plainly insufficient. In the first place, it is prima facie surprising that she should have lost all connections with Pakistan. I accept that it is not impossible, but if it is indeed the case the Secretary of State was entitled to expect some particularised explanation of how it had come about, and why, in consequence, she would face such problems on return. It would be important to know about her life in Pakistan before she came to this country, where she lived, what family and friends she had, whether she worked and what her educational or other qualifications were. It would also be important to know what had become of her family and friends and how, despite what the Secretary of State tends to call "modern methods of communication", she had lost touch with them. Nothing of this kind was provided in the original application, nor indeed has it been provided at any stage in the course of the litigation. Without it, the Secretary of State was in my opinion justified in finding that the Appellant had not demonstrated the existence of very significant obstacles to (re-)integration in Pakistan. (I also note, though this is not essential to my reasoning, that in the part of the decision dealing with Appendix FM it is noted that the Appellant's husband's passport shows that he has twice in recent years been to Pakistan for "family visits".)
  29. I would add that the argument proceeds on the premise that the Appellant would indeed return to Pakistan alone. As UTJ Canavan pointed out, that is inconsistent with the Secretary of State's finding, made in the context of the family life claim and not challenged in the proceedings, that there were no insurmountable obstacles to her family life continuing with her husband in Pakistan. Mr Malik pointed out that in the relevant part of the decision letter the Secretary of State draws the inference that the Appellant's husband was from Pakistan from the fact that in her application she gives his place of birth as Jallandor, which is a non-sequitur since Jallandor is in India. Formally that point is not open to him because there is no challenge to the relevant part of the decision; but even if he were permitted to take it the error in this regard does not affect the validity of the Secretary of State's reasoning on the private life claim.
  30. The argument also proceeds on the basis that the Appellant would remain in Pakistan indefinitely. That is unrealistic if she is in fact, as she would claim, entitled, on making the necessary application to the Entry Clearance Officer in Islamabad, to be granted leave to (re)-enter the UK as Mr Hamid's wife; in which case she would only have to remain in Pakistan for as long as the necessary procedures took. But whether that is in fact her entitlement albeit under article 8 rather than under the Rules is the subject of ground 2.
  31. I would therefore dismiss ground 1.
  32. GROUND 2: ARTICLE 8 OUTSIDE THE RULES

  33. As pleaded (see para. 6 (2) above) and as developed in the Statement of Grounds served with the claim form, this ground invokes a line of authorities which make clear that the Secretary of State must in principle consider whether, even if an applicant cannot satisfy the provisions of paragraph 276ADE or Appendix FM, he or she may nevertheless have a claim under article 8 "outside the Rules" see in particular the decision of this Court in Singh and Khaled (referred to in the grounds), at paras. 60-67.
  34. That line of authorities originated at a time when the Secretary of State's standard template for decision letters of this kind included no express reference to the possibility of claims under article 8 outside the Rules. That has not been the case for some time, and I have set out at para. 5 above the passage in the decision letter in this case addressing "exceptional circumstances" of this kind; and, as noted at the end of para. 12, part of the passage there quoted may also be more relevant to this aspect. In so far as the Appellant has a substantive point of this kind it must depend not on the Secretary of State not having considered the article 8 claim, which she plainly did, but on her having reached the wrong conclusion on it.
  35. No such challenge was advanced in the original Grounds of Claim, which in the relevant part are concerned entirely with reciting the relevant authorities and which wholly fail to address the specifics of the case. That point was trenchantly made by UTJ Canavan, who described this ground as "particularly generic" and "[doing] no more than set out various authorities". She went on to say that it was in fact clear that the Secretary of State had, in the two passages which I have referred to, considered the issues and that her reasoning "contains [no] errors on public law grounds". Mr Malik submitted that that formulation was incorrect because it is now clear that in a claim based on article 8 outside the Rules the function of the Court, even in judicial review proceedings, goes beyond conventional review criteria and requires it to make its own assessment: he referred us to the decision of this Court in R v (Caroopen and Myrie) v Secretary of State for the Home Department [2016] EWCA Civ 1307, [2017] 1 WLR 2339 (see esp. paras. 68-82 of my judgment (pp. 2366-2371)). I think he is right about that, but I acknowledged elsewhere in that judgment that not every loose use of the language of review in such cases betrays a material misdirection see para. 86 (p. 2373 B-C). The real question here is whether the UT was right to find that there was no arguable case that the Secretary of State had erred in rejecting the claim under article 8 outside the Rules.
  36. As to that, Mr Balroop in the relevant part of his skeleton argument reiterated the point which he had made in relation to ground 1 (albeit irrelevantly in that context), namely that the Appellant had entered the country perfectly lawfully and genuinely on a spouse visa and had remained married to her husband and resident in the UK ever since: that was a highly material fact, which differentiated this case from that of the usual run of cases where an illegal entrant or overstayer who has come to the UK as, say, a visitor or student seeks leave to remain on the basis of a marriage contracted while their status was (at best) precarious. Mr Malik developed essentially the same point in his oral submissions.
  37. I have sympathy with that argument, but I do not think it can succeed. Formally, as I have sought to show, it is not how the case was advanced below. More substantially, however, it suffers from the same defect as the claim under paragraph 276ADE, namely that neither the Secretary of State nor the UT has been given sufficient evidence to make a properly informed decision. On an application of this kind I would expect the Secretary of State to want to consider at least the following points:
  38. (a) whether the Appellant would, if she had made an application before the expiry of her leave to enter in May 2001, have been entitled to leave to remain and, in due course, indefinite leave to remain;

    (b) whether there was a good, or at least venial, reason for her failure to make such an application;

    (c) whether she continues to satisfy the substantive requirements for leave to remain as a spouse; and

    (d) whether it would cause real disruption for her to have to leave the country to make now from abroad the application that she should have made before 25 May 2001 and which would (if point (c) is correct) be certain to succeed.

    Elements (a)-(c) are simply not covered in the application or the subsequent evidence. We do not know why the Appellant did not apply for leave to remain before 25 May 2001. Perhaps it was mere oversight, and the application would have been successful; but perhaps not. Perhaps she would be able to satisfy the current requirements for entry clearance as a spouse; but, again, perhaps not. Even on point (d), though we are not concerned with the questions raised by paragraph EX.1 or paragraph 276ADE (1) (vi), and only a slight degree of disruption might be enough if the Appellant's case were otherwise strong, it would still be material to know what the delays would be in making an application through the Entry Clearance Officer in Islamabad and what problems it might cause the Appellant (and her husband) for her (and perhaps him) to have to be away for that time. It is simply not good enough to leave the Secretary of State, or indeed the UT, in the dark on these questions

  39. For the avoidance of doubt, I do not say that the Appellant would have to tick all of boxes (a)-(d) in order for it to be right for her to be granted leave to remain outside the Rules. However, if she can do so it seems to me that she would have a very strong case. It is hard to see how it could be right to insist on the empty but disruptive formality of leaving the country in order to correct a venial administrative error made thirteen years previously: see Chikwamba v Secretary of State for the Home Department [2008] UKHL 40, [2008] 1 WLR 1420, and the subsequent authorities.
  40. In short, the Appellant may well have a good case for leave to remain outside the Rules, but she did not in her application give the Secretary of State the material with which to make an informed judgment. If she applies again, dealing fully with the circumstances of her case, the Secretary of State will no doubt give the application careful consideration.
  41. I wish to add that this Court sees too many cases in which applicants for leave or their advisers particularly in cases depending on article 8 outside the Rules devote their energies to setting out extracts from the case-law rather than to demonstrating a compelling case based on the details of the applicant's particular circumstances. The latter exercise may require more work, but it is what the Secretary of State, and if necessary the Tribunal, will be more concerned with. Cases of this kind generally turn on their facts, and the applicable law does not require elaborate exposition.
  42. CONCLUSION

  43. I would dismiss this appeal.
  44. Lady Justice Asplin:

  45. I agree.
  46. Lady Justice Gloster:

  47. I also agree.


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