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Cite as: [2013] ScotCS CSOH_1

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OUTER HOUSE, COURT OF SESSION


[2013] CSOH 1

P1053/12

OPINION OF LORD BRODIE

in the Petition of

MS

Petitioner;

against

Judicial Review of a decision by the Secretary of State for the Home Department dated 9 October 2012 and 21 November 2012

Respondent:

________________

Petitioner: Forrest; Drummond Miller LLP

Respondent: Pirie; The Office of the Advocate General

9 January 2013

Introduction


[1] In this application for judicial review the petitioner is MS. He was born in 1976. He is single. He is a national of India. The respondent is the Secretary of State for the Home Department. She is responsible for matters relating to immigration and nationality. She is represented in this petition by the Advocate General for Scotland as the appropriate law officer for the purposes of section 1 of the Crown Suits Act 1857.


[2] It is the petitioner's position that he has been resident in the United Kingdom since 2001, having entered illegally using someone else's British passport. He has never been granted leave to enter or leave to remain in the United Kingdom. The petitioner first came to the attention of the respondent's officers on 3 September 2009 when he was found working illegally in a restaurant. He was detained and interviewed. On 4 September 2009 he was given notice on behalf of the respondent that he was considered to be an illegal entrant and that he was liable to detention and removal. On 7 September 2009 the petitioner's representatives made a submission on his behalf that his removal would contravene his rights as guaranteed by article 8 of the European Convention on Human Rights. That submission was rejected in terms of a decision by the respondent on 12 December 2011. The petitioner appealed that decision. His appeal was dismissed by an immigration judge of the First Tier Tribunal on 21 February 2012. Permission to appeal to the Upper Tribunal was refused by the First Tier Tribunal on 9 March 2012. The petitioner made no further application for permission to appeal and his appeal rights became exhausted on 21 March 2012. Having failed to comply with the reporting requirement, the petitioner was arrested on 1 October 2012 and detained at Dungavel Immigration Removal Centre, Strathaven where he is currently resident.


[3] On 2 October 2012 the respondent issued a decision directing that the petitioner be removed from the United Kingdom on 12 October 2012. These removal directions have not been implemented.


[4] In this application the petitioner seeks reduction of decisions made by the respondent subsequent to the removal directions, as contained in letters dated 9 October 2012 and 21 November 2012. These decisions were made in response to a claim made on behalf of the petitioner by letter dated 3 October 2012 which, insofar as relating to the particular circumstances of the petitioner was in the following terms:

"Our client has been and still is in a relationship with a British citizen, SK. She has two children, one of which is fond of our client. We enclose her Statutory Declaration which we refer to for its terms.

Our client has formed a private life and a family life within the United Kingdom and we would submit that to remove him to India, to enable him to apply for entry clearance from abroad, after the expiry of the mandatory period, would be disproportionate to the legitimate needs of Immigration control. Such removal would impact upon his partner who would be deprived of her rights under Article 8 ECHR. The child would become a victim in terms of Article 8. It would be unreasonable in the circumstances to ask her to go to India as her life is now in the UK with her family and friends present in the UK.

We would argue that it is disproportionate to ask our client to return to India to pursue an entry clearance application."

As appears from her decision letters, having regard to the fact that the petitioner had made a previous claim for leave to remain on the basis that his removal would contravene his human rights, the respondent treated the letter of 3 October 2012 as further submissions potentially constituting a fresh claim, as provided for by paragraph 353 of the Immigration Rules. The respondent accepted that the submission had not previously been considered but, taken with the material that had been considered by the First Tier Tribunal prior to it refusing the petitioner's appeal on 21 February 2012 the respondent determined that the submissions had not created a realistic prospect of success and therefore did not amount to a fresh claim. It is the petitioner's contention, advanced in this petition, that that decision was unlawful.


[5] The petition called before me for a first hearing on 29 November 2012. Mr Forrest appeared for the petitioner and Mr Pirie appeared for the respondent. Mr Forrest moved for reduction of the two decision letters. Mr Pirie moved for dismissal of the petition. I shall provide more detail about the parties' respective submissions but, in broad terms, the issue between them as to the lawfulness of the respondent's rejection of the petitioner's claim that refusing him leave to remain would contravene his right to private life as guaranteed by article 8 of the European Convention, related to the effect that should be given to recent changes to the Immigration Rules taking effect from 9 July 2012. It is convenient, before going any further, to say something about the Immigration Rules in general and the changes to them which were brought into force on 9 July 2012, in particular.

The Immigration Rules

[6] As Lord Brown of Eaton-under-Heywood observed at the beginning of his opinion in Odelela v Secretary of State for the Home Department [2009] 1 WLR 1230, para 12, the United Kingdom, like every other sovereign state, is entitled to control access to its borders and, accordingly, to determine who it allows to enter and thereafter to remain and who it does not allow to enter and remain. That right, subject only to treaty obligations, including those which arise from the European Convention on Human Rights, has been expressly and repeatedly recognised by the European Court of Human Rights (see eg Saadi v Italy (2008) 24 BHRC 123 at para 124, Uner v The Netherlands [2007] 273 at paras 54 and 55, Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 at para 68; also R (Ullah) v Special Adjudicator [2004] 2 AC 323 at para 6 and R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 at para 19). The principle finds expression, as a matter of domestic law, in section 3 (1) of the Immigration Act 1971 which provides that a person who is not a British citizen (or a citizen of a member state of the European Union) may not enter the United Kingdom unless given leave to do so, in accordance with the provisions of the Act. The grant of leave to enter (or, in respect of a person who is already in the United Kingdom, the grant of leave to remain) is a matter for the decision of the Secretary of State for the Home Department. It is for the Secretary of State, as Lord Brown went on to say in Odelela, to decide and to lay down rules as to the practice to be followed in the exercise of immigration control. The making of such rules is referred to in sections section 1 (4) and 3 (2) of the 1971 Act and recently, in R (Munir) v Secretary of State for the Home Department [2012] 1 WLR 2192, the Supreme Court has held that the power to make such rules is derived from the 1971 Act. Section 1 (4) states what such rules shall contain. Section 3 (2)
is concerned with the procedure for laying statements of those rules and of any changes to rules before Parliament. That sub-section provides as follows:

"(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; ...

If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid)."

The rules made by the Secretary of State in terms of the section 3 (2) procedure are referred to as the Immigration Rules. They have been frequently changed (90 statements of change since 1994, according to Lord Hope in R (Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208 at para 11) and in the course of these changes they have become less discursive and more specific; they are now very extensive, "detailed, tightly drawn and circumstantial" (see MO (Nigeria) v Home Secretary [2009] 1 WLR 126 at para 13), a process whereby the "not merely unusual but unique" Rules have by "stealthy elevation" achieved "the status of quasi-law" (see Pankina v Secretary of State for the Home Department [2011] QB 376 Sedley LJ at paras 13 and 16) .


[7] That the precise legal status of the Immigration Rules has sometimes been seen by the courts as puzzling appears from the
leading judgment, given by Buxton LJ, when Odelola was in the Court of Appeal (where it was reported as MO (Nigeria) v Home Secretary supra). Among the many dicta quoted by Buxton LJ was that from the judgment of Sedley LJ in R (BAPIO Action Ltd) v Home Secretary [2007] EWCA Civ 1139 at paragraph 29:

"In constitutional terms, it seems to me, the immigration rules are the product of the mandate set out in section 3 (2) of the Immigration Act 1971 to secure parliamentary approval of the principles according to which the Home Secretary intends for the time being to exercise the statutory and prerogative powers which govern admission to the United Kingdom. There is nothing in the Act which gives them the force of law, save in relation to appeals against their exercise. For the rest, their only statutory dimension is that they are made open to debate and negative resolution in Parliament".

That pointed in a direction which was to be followed when Odelola was in the House of Lords. Lord Hoffmann said this (supra, paragraph 6 at 1233D):

"The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under section 84 (1) of the National Immigration and Asylum Act 2002 one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules. So there is no conceptual reason why they should not create rights which subsequent rules should not, in the absence of express language, be construed as removing. ..."

Lord Brown, with whom Lord Hope agreed, opined (supra 1239H to 1340D):

"35 The immigration rules are statements of administrative policy: an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain. Section 33 (5) of the 1971 Act provides that: 'This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative.' The Secretary of State's immigration rules, as and when promulgated, indicate how it is proposed to exercise the prerogative power of immigration control."

In R (Munir) v Secretary of State for the Home Department supra at paras 37 to 39, Lord Dyson, with whom the other members of the Supreme Court agreed, disavowed the characterisation of the Immigration Rules as indicating how prerogative powers were to be exercised but accepted that the Rules were statements by the respondent as to how she would exercise her (statutory) powers.


[8] The respondent does not of course make every decision personally; she delegates her functions to immigration officers and other officials. The Rules (together with other instruments, including Immigration Directorate Instructions) therefore serve as instructions by the respondent
to those officials who make decisions on her behalf: see eg Rape Crisis Centre v Secretary of State for the Home Department 2000 SC 527 at 535, but, in contrast to what one would expect with legislation (the Rules are not, of course, legislation), no one is bound by the Rules other than the rule-maker herself in that while the Secretary of State retains a discretion to depart from the Rules by treating an applicant more favourably than the Rules would require, as Lord Hoffmann observed, the Rules may create the right to be treated in a particular way and that right can be vindicated by a disappointed applicant by way of statutory appeal.


[9] However, the apparent paradox that the Immigration Rules bind only the rule-maker, should not distract from the purpose of section 3 (2) of the 1971 Act. The Secretary of State's discretionary exercise of the power to control the entry of non-citizens into the United Kingdom and their residence there is subject to a variety of constraints. That is certainly true today after the enactment of the Human Rights Act 1998, but it was also true in 1971. Apart from anything else, the 1971 Act itself legislates on the matter. Respectfully agreeing with the Court of Appeal in
MO (Nigeria) v Home Secretary (supra at para 15), I would see the purpose of section 3 (2) as requiring the Secretary of State to exercise her powers on a basis which is open and principled and, with a view to facilitating that, to require her to make a public statement of how she intends to go about her task. The Secretary of State is to be taken as being aware of her various obligations and accordingly, unless the context indicates differently, the Immigration Rules may be taken to be her honest attempt to determine where the balance among them is to be struck, at least in the generality of cases, with the Rules then being available as instructions to the respondent's officers as to how they should go about their decision-making and as guidance to those persons who seek admission to and leave to remain in the United Kingdom. As appears from section 3 (2) of the 1971 Act, the Rules are under some degree of parliamentary control by virtue of the negative resolution procedure. Moreover, as Lord Hope explains in Alvi supra at para 35, the merits of all statements of changes to the Immigration Rules are examined by the Secondary Legislation Scrutiny Committee in the House of Lords and they may be made subject of report.

Article 8

[10] Among the obligations on the respondent, when considering an application for leave to remain, is that imposed upon her as a minister of the Crown to respect the article 8 rights of those affected by her decision. As is very familiar, article 8 is in these terms:

"Article 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."


[11] While no doubt a generalisation, it is probably safe to say that in almost every case where the respondent issues removal directions in respect of a person resident in the United Kingdom who does not wish to leave, there can be said to have been an interference with the exercise of that person's right to respect for his private life and, if he has such, his family life. That an individual has no family life does not mean that he has no private life in the sense of the totality of social ties between him and the community in which he is living: Maslov v Austria [2009] INLR 47 at para 63. Certainly, the person concerned will probably assert as much. However, such interference, per se, does not constitute a contravention of the article 8 rights of the person concerned. That will only occur where the interference is not in accordance with the law or where it exceeds what is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The "what is necessary" qualification introduces the requirement of proportionality. An interference with the right to respect for private and family life, if in accordance with law, will only contravene article 8 if it is disproportionate to its relevant objective. The objective of immigration control is usually articulated as public safety and the protection of the economic well-being of the United Kingdom (although it may also be said to bear on the protection of the rights and freedoms of others in that the rights of others are engaged in maintaining a fair and consistently applied system of immigration control). The removal of a person with no entitlement to remain in the United Kingdom will be according to law. It will be pursuant of a legitimate objective. An objection to a removal on the basis of contravention of article 8 will therefore come to be a contention that, given the particular circumstances of the person whom the Secretary of State seeks to remove, that removal would be disproportionate in the sense that the consequences which would be involved in the interference with private right outweigh the public interest in the country's general economic well-being. That the state is entitled to interfere with an individual's enjoyment of private and family life, consistent with proportionality, has led to the right guaranteed by article 8 (1) being described, by for example the respondent in the course of the parliamentary debate to which I shall refer, as a "qualified right".

Changes in the Immigration Rules


[12] In June 2012 the respondent published Statement of Intent: Family Migration. In that paper she explained that she would make changes to the Immigration Rules as part of a programme of reform of the migration routes. The changes would be laid before Parliament and were expected to come into force on 9 July 2012. As she further explained, the respondent saw the changes in the Rules as filling what had previously been a public policy vacuum in relation to the impact of article 8 and proportionality on exercise of the function of immigration control. In developing that theme, Statement of Intent: Family Migration stated as follows:

"4. During 2011, the Government consulted on proposed reforms to family migration and on how the qualified nature of Article 8 of the European Convention on Human Rights (ECHR: the right to respect for private and family life) should operate in immigration case. The consultation generated 5,046 responses and a report giving further details of these responses has been published on the Home Office website.

...

6. The Government has now decided on the changes it will make further to those consultations. In summary they are as follows.

7. First we shall end the situation where those claiming the right to enter or remain in the UK on the basis of ECHR Article 8 - the right to respect for private and family life - do so essentially without regard to the Immigration Rules. The new rules will reflect fully the factors which can weight for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government's and Parliament's view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis.

...

10. With these changes and the others set out in this Statement of Intent, the Immigration Rules will comprehensively reform the approach taken towards ECHR Article 8 in immigration cases. The Immigration Rules will for the first time reflect the views of the Government and Parliament as to how Article 8 should, as a matter of public policy, be qualified in the public interest in order to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals.

11. The Immigration Rules will reflect all the factors which, under current statutes and case law, can weigh in favour of an Article 8 claim, e.g a child's best interests, or against an Article 8 claim, e.g. criminally and poor immigration history. The Courts will continue to determine individual cases accordingly to the law but, in doing so, they will be reviewing decisions taken under Immigration Rules which expressly reflect Article 8. If an applicant fails to meet the requirements of the new Immigration Rules, it should only be in genuinely exceptional circumstances that refusing them leave and removing them from the UK would breach Article 8.

12. In future, whether an applicant makes an application under the family Immigration Rules, or Article 8 is considered under an asylum application, or Article 8 is raised in the appeals or enforcement process, the applicant will be expected to meet the requirements of the Immigration Rules in order to be granted leave on Article 8 grounds.

...

27. Everyone has a right under ECHR Article 8 to respect for their private and family life, but it is a qualified right. Article 8 itself provides that it can be lawful to interfere with the exercise of that right where it is in the public interest to do so and where the interference is proportionate to the public interest being pursued. In the immigration context, this means where in particular it is necessary and proportionate for public safety or to safeguard the economic well-being of the UK.

28. It has become increasingly clear that the Immigration Rules do not properly embody the qualified right afforded by Article 8. The current requirements of the rules do not adequately reflect the factors which can weight in favour of a person's Article 8 claim, e.g. a child's best interests, or against, e.g. criminality and poor immigration history. These factors are currently considered separately from the rules, both by the UK Border Agency and the Courts.

29. Family life applications are first considered by the UK Border Agency under the rules and, if the application does not meet the requirements of the rules, the UK Border Agency then considers whether the decision is compatible with Article 8, If the UK Border Agency thinks that the decision is not compatible with Article 8, or the Courts find that to be the case, leave is granted outside the rules. This approach has detracted from clear, consistent, predictable and transparent decision-making.

30. The lack of a clear public policy framework has also effectively left the Courts to develop public policy, e.g. as to what constitutes adequate maintenance for family migrants, through case law.

31. The new Immigration Rules will unify consideration under the rules and Article 8, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life. This will have to meet clear, transparent requirements on the face of the rules, e.g. that they have no significant criminality, are in a genuine relationship, and meet the minimum income threshold and English language requirements. These requirements are proportionate because there is a strong rationale and evidence base, including in the Migration Advisory Committee's report on the income threshold, for why they serve the public interest.

32. Family life established when the parties knew one or both of them lacked a valid basis of stay in the UK carries less weight under Strasbourg case law. The impact of this is reflected in the new Immigration Rules, for example in the scope for an applicant without extant leave to qualify for a 10 year rather than five year route to settlement on the basis of their family life.

33. The requirements of the new Immigration Rules will themselves reflect the Government's and Parliament's view of how, as a matter of public policy, the balance should be struck between the right to respect for private and family life and the public interest in safeguarding the economic well-being of the UK by controlling immigration and in public safety by protecting the public from foreign criminals."


[13] A Statement of Changes in Immigration Rules was duly presented to Parliament and ordered by the House of Commons to be printed on 13 June 2012. The Explanatory Memorandum accompanying the Statement of Changes in Immigration Rules included these paragraphs:

"Approach to ECHR Article 8

7.2 The new Immigration Rules will reform the approach taken as a matter of public policy towards ECHR Article 8 - the right to respect for family and private life - in immigration cases. The Immigration Rules will fully reflect the factors which can weigh for or against an Article 8 claim. The rules will set proportionate requirements that reflect the Government's and Parliament's view of how individuals' Article 8 rights should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. Outside exceptional cases, it will be proportionate under Article 8 for an applicant who fails to meet the requirements of the rules to be removed from the UK.

7.3 The new Immigration Rules in Appendix FM provide a new five-year route to settlement in the UK on the basis of family life. Those who cannot meet the requirements of that route can remain in the UK on the basis of their family life only where it would breach Article 8 to remove them. Such cases can apply for leave under the new rules on a new 10-year route to settlement."

The Statement of Changes in Immigration Rules was debated in the House of Commons on the respondent's motion (see Hansard 19 June 2012, column 760):

"That this House supports the Government in recognising that the right to respect for family or private life in Article 8 of the European Convention on Human Rights is a qualified right and agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules."

The motion was unanimously agreed to.


[14] The Statement of Changes in Immigration Rules was considered by the House of Lords on 23 October 2012 on a motion of regret moved by an opposition peer, Baroness Smith of Basildon. The motion was in these terms (Hansard 23 October 2012, column 178):

"That this House regrets that notwithstanding welcome but limited measures to ensure the deportation of foreign criminals and tackle sham marriages, and notwithstanding the importance of greater protection for the taxpayer, the Government have not demonstrated that the specific minimum annual income requirement which has been introduced through the Statement of Changes in Immigration Rules (HC 194) is the most effective way to protect taxpayers and deliver fairness for UK citizens who wish their spouse or partner or settle in the United Kingdom."

Baroness Smith began her speech in support of her motion by saying (Hansard 23 October 2012, column 178):

"I should say at the outset of this debate that we support the Government in their efforts to address and manage levels of immigration to this country and to make it easier to deport foreign criminals, but my Motion of Regret is on the specific aspect of HC 194, that part of it which sets an income threshold of 18,600 for British citizens and people settled here who wish to sponsor their spouse or partner to come to live with them in this country and of 22,400 for couples with children. I would also like, during the course of the debate, to raise with the Government the issue of Article 8 of the European Convention on Human Rights - that is, the right to respect for private and family life - and the Government's proposal to find greater legal clarity by balancing Article 8 with public interest considerations."

Following debate, Baroness Smith withdrew her motion of regret.


[15] Subsequent to the publication of the new rules the respondent has also issued Immigration Directorate Instructions and Modernised Guidance to caseworkers on how to apply the changes which came into effect on 9 Jul 2012 (see MF (Article 8 New Rules) v Secretary of State for the Home Department 2012 UK UT 000939 at para 16).

Submissions of parties
Petitioner

[16] Mr Forrest explained that he had no quarrel with the respondent treating the petitioner's agent's letter of 3 October 2012 as a purported fresh claim that removal of the petitioner from the United Kingdom would contravene his right to respect for his private life (Mr Forrest conceded that the issue of family life did not arise on the facts of the case). However, that being so, it was incumbent on the respondent to consider the application according to Immigration Rule 353 as interpreted in WM (Democratic Republic of the Congo) v The Secretary of State for the Home Department [2007] Imm AR 337: and see Dangol v Secretary of State for the Home Department 2011 SC 560 at para 7.


[17] Mr Forrest submitted that the respondent had erred in law, having accepted that the information as to the petitioner's relationship with SK had not been considered before, in holding that there were no realistic prospects of the petitioner persuading an immigration judge that his removal would be a disproportionate interference with his private life and, further, in failing to consider whether the petitioner might succeed with an Article 8 claim "outside the Immigration Rules". Although initially presented as separate submissions, as developed by Mr Forrest, his two lines of argument came together in a contention that notwithstanding the changes to the Immigration Rules with effect from 9 July 2012, the question of compliance with the requirements of Article 8 remained separate from and additional to the question as to whether a person had an entitlement to remain in the United Kingdom under the Rules. Accordingly, any immigration judge who considered the petitioner's claim would follow a two stage approach (otherwise a "two- stage test"), asking, first, whether the petitioner was entitled to remain in the United Kingdom under the Immigration Rules and, second, whether, on a proper evaluation of the facts, there would be a breach of article 8. The respondent had failed to understand and apply the two-stage test. Mr Forrest conceded that the petitioner did not qualify under the Immigration Rules but he did not concede that an immigration judge might not find the petitioner's private life to be sufficiently established to allow the claim under article 8. Reference was made to MF (Article 8 New Rules) v Secretary of State for the Home Department supra, R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 and Maslov v Austria supra.

Respondent

[18] Mr Pirie submitted that the decisions contained in the letters of 9 October 2012 and 21 November 2012 were lawful and that the orders for reduction sought by the petitioner should be refused. Mr Pirie accepted, as was acknowledged in the decision letters (which should be looked at together), that the representation on behalf of the petitioner as contained in the letter of 3 October 2012 had not been considered before. He further accepted that in deciding the application, under Immigration Rule 353, the respondent had to ask herself whether the petitioner would have a realistic prospect of establishing before an immigration judge that his removal would be incompatible with his rights under article 8. Thus the petitioner's ground of review was best understood as being based on the proposition that the respondent had misdirected herself in law by failing to ask herself whether the petitioner had a realistic prospect of establishing that his removal would be incompatible with article 8 before an immigration judge applying the "two stage test". The petitioner's contention should be rejected on the grounds that the respondent did not misdirect herself in law and that even if there had been a misdirection it was immaterial in this particular case.


[19] In developing the submission that the respondent had not misdirected herself, Mr Pirie began by accepting that the notional immigration judge would have to decide for himself whether removal of the petitioner would be disproportionate for the purposes of article 8: Huang v Secretary of State for the Home Department [2007] 2 AC 167 at para 11. The overriding question in the assessment of proportionality in a case such as the present is whether the decision in question strikes fair balance between the rights of the individual and the interests of the community: Huang supra at para 19. In striking that fair balance, the state has a margin of appreciation: Rodrigues de Silva v The Netherlands (2007) 44 EHRR 72 at para 39, which has the effect within the state of giving the government and parliament the same discretionary area of judgment: R (S) v Secretary of State for Justice [2012] EWHC 1810 at paras 50 to 71. As was demonstrated by the material which had been produced (Statement of Intent: Family Migration; Statement of Changes in Immigration Rules; and the excerpts from Hansard) and as is averred on behalf of the respondent at answer 7.1, the new Immigration Rules reflect, as a matter of public policy, the government's and parliament's view as to how the individual's right to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the United Kingdom by controlling immigration and protecting the public from foreign criminals. Thus, it is a sufficient condition for the petitioner's removal from the United Kingdom to be proportionate that both (a) he fails to satisfy the requirements of the new rules on private life and (b) his circumstances are not exceptional as that expression is to be understood in the light of H (H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] 3 WLR 90. Reference was made to Huang v Secretary of State for the Home Department [2006] QB 2 at paras 57 to 60 and 62 and Kay v Lambeth London Borough Council [2006] 2 AC 465 at paras 32, 35 and 53 to 54, 180 and 203. Whereas, when Huang was in the House of Lords, the analogy with Kay was held to be unpersuasive, that can no longer be said to be so in respect of the changes to the Immigration Rules, having regard to the material produced on behalf of the respondent in this case. In giving the opinion of the judicial committee of the House of Lords in Huang, Lord Bingham did not question the principles set out in paragraphs 32, 35, 53 to 54, 18 and 203 in Kay. Huang did not decide that the analogy with Kay could never be persuasive in the field of immigration. Accordingly, to direct himself correctly in law, the notional immigration judge would have to ask himself whether the petitioner (a) satisfied the new rules on private life or (b) demonstrated exceptional circumstances. In rejecting the petitioner's application under Immigration Rule 353 the respondent here did not misdirect herself in law because she asked herself whether the petitioner would have a realistic prospect of establishing before an immigration judge either (a) that he satisfied the new rules on private life or (b) that his circumstances were exceptional.


[20] In the alternative Mr Pirie submitted that esto the respondent was to be taken to have misdirected herself in law, that misdirection had not been material in the present case. A misdirection in law is material if there is a real possibility that the decision in question might otherwise have been different: Tesco Stores Limited v Dundee City Council [2012] UK SC 13 at para 31. Here the suggested misdirection was not material because there was no real possibility that the respondent would have decided that the petitioner had a realistic prospect of establishing that his removal would be disproportionate before an immigration judge applying the "two stage test" because (a) the new information did not advance the petitioner's private life claim very far, (b) the petitioner had a very poor immigration history, (c) the petitioner had developed his private life in the United Kingdom when his immigration status was precarious: cf. Rodrigues de Silva supra at para 39, and (d) the respondent had found that there were no exceptional circumstances in the petitioner's case: cf. R (Razgar) v Secretary of State for the Home Department supra at para 20 and Huang v Secretary of State for the Home Department [2007] 2 AC 167 at para 11. Accordingly, it would be within the range of reasonable decisions open to the respondent, and not otherwise unlawful, to decide that the petitioner did not have a realistic prospect of success before an immigration judge who applied the "two stage test".

Discussion

[21] The context for the argument before me was an application which required to be considered by the respondent in the context provided by Immigration Rule 353. The terms of that rule are as follows:

"When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) has not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."

The import of the rule was considered in Dangol v Secretary of State for the Home Department supra at paras 4 to 7. The respondent has first of all to consider the submissions themselves and reach a decision on them. Only if they are rejected does the respondent require to proceed to the second stage and address the issues referred to in paras (i) and (ii) of the rule. Once at the second stage the respondent must determine whether the content of the submissions has already been considered and then (as had previously been held in FO Petitioner 2010 SLT 1087), in addressing the para (ii) issue, the respondent must follow the guidance to be found in the judgment of Buxton LJ in WM (Democratic Republic of the Congo) v Secretary of State for the Home Department supra. At that point in the decision-making process, as Buxton LJ explains:

"The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusion to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

Buxton LJ introduces the passage quoted above with the observation that a decision will be irrational if not taken on the basis of anxious scrutiny. While such an approach is more readily understandable in the context of an asylum claim, the court in Dangol was prepared to assume that the requirement of anxious scrutiny applied to cases where the issue was the proportionality of the impact of removal on private life and that therefore the respondent's decision letter should demonstrate that no material factor favourable to someone in the position of the present petitioner had been left out of account in the review of the evidence (see Dangol supra para 9).


[22] In the present case, parties were agreed that the respondent had considered the submissions contained in the letter of 3 October 2012 and had rejected them. Parties were further agreed that these were submissions which had not been previously considered. They were to the effect that the ambit of the petitioner's private life included his relationship with a Sikh lady who is a British citizen and her four year old daughter. The relationship had commenced in about December 2011. The petitioner lives with the mother and daughter from Friday to Monday. The daughter is fond of the petitioner. Her mother was aware of the petitioner's immigration status before the beginning of their relationship. As appears from the decision letters dated 9 October 2012 and 21 November 2012, the official acting on behalf of the respondent considered these circumstances and accepted that the petitioner had formed a private life in the United Kingdom but determined, first, that notwithstanding these circumstances the petitioner was unable to meet the requirements for leave to remain on the grounds of private life in terms of the Immigration Rules (and, in particular, Rule 276ADE) and, second, that no other factors had been put forward that might be said to be exceptional. There was no realistic prospect of an immigration judge reaching a different conclusion. While reminding me of the relatively modest hurdle that "realistic prospect of success" presented for the petitioner, when regard is had to the guidance provided by WM (Democratic Republic of the Congo) v Secretary of State for the Home Department supra, what Mr Forrest's argument came to was a submission that the respondent had erred in law by making her decision on the basis that the issue of proportionality raised by the article 8 claim was sufficiently addressed by considering first whether the claimant came within the Immigration Rules, as changed with effect from 9 July 2012, and then whether there was anything in the claimant's case which might be said to be exceptional. In Mr Forrest's submission, notwithstanding the change to the Immigration Rules, what the respondent had to do was to apply what Mr Forrest described as a two-stage test (otherwise a two-stage approach: MF v Secretary of State for the Home Department supra at para 41): first, did the claimant come within the requirements of Immigration Rules for leave to remain? and second (in the event that he did not satisfy the Rules) on a proper evaluation of all the circumstances was the claimant's removal from the United Kingdom proportionate? Mr Forrest accepted that the petitioner did not satisfy the requirements of the new provisions of the Immigration Rules which were intended to accommodate article 8 rights, but as the respondent had not undertaken an independent evaluation of the circumstances of the petitioner's case with a view to determining whether the interference with his private life (family life not being in issue) consequent upon removal, was proportionate to the legitimate public end sought to be achieved, as any immigration judge would have to do if applying the law, the respondent must be taken as having erred in law with the result that her decisions must be reduced.


[23] Mr Pirie took issue with Mr Forrest's interpretation of the law. The respondent, through her official, had applied the law correctly but, as a secondary position, in the event that there had been a misdirection in law it was not a material misdirection, in that the petitioner's position was so weak that he had no realistic prospect of success even on the approach advocated by Mr Forrest.


[24] The primary question of principle as identified in argument therefore was whether the changes to the Immigration Rules effected by the respondent in July 2012 have resulted in a material change in the way in which a decision on, for example, leave to remain, can lawfully be made. From the material put before me it would seem very clearly to have been the respondent's intention to domesticate article 8, as it were, by bringing its requirements within the Rules. What I mean by that is that the Rules have been changed (by, for example, the introduction of the new rule 276ADE) with the very explicit purpose of taking account of the quality of such private life as an applicant may have established in the United Kingdom, notwithstanding that he has no other entitlement to remain there. Has then the respondent been successful in what she has set out to do or, as Mr Forrest would have it, has she simply conferred additional rights on those who have entered the United Kingdom illegally without in any way altering the requirement incumbent on any decision-maker faced with an article 8 objection to removal? In other words, in the event of an appellant failing to qualify under the new rules must a decision-maker still come to an independent view as to article 8 compliance by going through the five steps identified by Lord Bingham in R (Razgar) v Secretary of State for the Home Department supra at para 17, rather than, as the decision-maker did here, simply asking whether the applicant's circumstances are exceptional?


[25] As I understand the respondent's underlying objective in changing the Immigration Rules it was to affirm and strengthen, in the area of family migration, a rule-based system of immigration control based on what she described in Parliament as "a consistent, fair and transparent decision-making process" (see Hansard 19 June 2012, column 765) with fewer grants of discretionary leave arising from concerns over interference with private and family life. While no doubt any set of rules which aims to regulate human behaviour should provide for the exceptional case if it is avoid unjust or even ridiculous outcomes, the respondent's objective can only be regarded as a rational approach to the exercise of the power of controlling entry to the United Kingdom. It is consistent with the terms of sections section 1 (4) and 3 (2) of the 1971 Act. The respondent must have regard to section 6 of the Human Rights Act 1998, as reflected by section 84 (1) (c) of Nationality, Immigration and Asylum Act 2002, in that it is unlawful for a public authority to act in a way which is incompatible with a Convention right and it is a ground of appeal against an immigration decision that it was made in contravention an applicant's human rights (as the Immigration Rules are not subordinate legislation as defined by section 21 (2) of the 1998 Act, section 6 (2) does not disapply section 6 (1)). In the Statement of Intent: Family Migration, the Statement of Changes in Immigration Rules and what she said in presenting the changes to the Rules to Parliament, I would see the respondent as acknowledging that but pointing out that the individual's article 8 right is, as she puts it, "qualified". In other words, it must yield to the interest of the state provided that the relevant action on the part of the state is according to law and not disproportionate. As Laws LJ explained when Huang was in the Court of Appeal, where the balance as between private right and state or public interest lies in the immigration field is, as a matter of generality, a question of policy. According to the respondent what the changes in the Rules were intended to do was to fill a vacuum as to the relevant policy in relation to article 8 that had been allowed to subsist since the enactment of the Human Rights Act. By ensuring that there was a debate on the Rules, the respondent was seeking the endorsement by Parliament of the soundness of the policy which the Rules articulated. As she put it when addressing Parliament (see Hansard 19 June 2012, column 765):

"What we are debating is Parliament's saying, first, that the House supports the Government in recognising the qualified nature of article 8 and, secondly, that the basis on which article 8 can be qualified is set out in the immigration rules. ...Once endorsed by the House, the new immigration rules will form a framework that Parliament considers is compatible with article 8, on which the courts can therefore place greater weight as a statement of the public interest."

Earlier the respondent had said (see Hansard 19 June 2012, column 763)

"Some have suggested that Parliament cannot set out how article 8 should be qualified because we are bound by the European convention on human rights. They evidently do not understand that article 8 is a right that is qualified by the convention itself. Of course, judges will continue to consider each case on its individual merits, but it is the courts themselves that have said that Parliament needs to make its views clear. In a case in 2007, the House of Lords said that a statement from Parliament was needed on where the public interest lies in the operation of article 8 in immigration cases. The Court of Appeal, last year and this year, has indicated that greater weight is to be given to the public interest when that has been endorsed by Parliament. Today's motion provides the courts with the statement and the endorsement from Parliament that they have said is needed. The courts should then give that statement from the elected legislature the weight it deserves."


[26] The case in 2007 referred to by the respondent was Huang when it was in the House of Lords and the passage in question that supra at para 17 where Lord Bingham, giving the opinion of the judicial committee, rejects the argument, by analogy with what had been accepted in Kay v Lambeth London Borough Council [2006] 2 AC 465 in relation to the Housing Acts, that the Immigration Rules and supplementary instructions, made by the responsible minister and laid before Parliament, had the imprimatur of democratic approval and therefore should be taken to strike the right balance between the interests of the individual and those of the community. It was the judicial committee's opinion that in contrast to the Housing Acts, which could be seen as representing a democratic compromise which had arisen from a consideration of the competing interests in the course of the legislative process, the Immigration Rules and the supplementary instructions were not the product of active debate in Parliament. Moreover, not all the competing interests had had a voice; non-nationals seeking leave to enter or to remain were unrepresented in Parliament.


[27] According to the respondent when she was addressing Parliament, "the House of Lords had said that a statement from Parliament was needed on where the public interest lies in the operation of article 8 in immigration cases." That is not precisely how I would read the opinion of the judicial committee in Huang. What I would take Lord Bingham to have been saying was that legislation, particularly social legislation such as the Housing Acts, could be regarded as the result of a considered democratic compromise whereas the Immigration Rules, being promulgated by the executive and subject only to the negative resolution procedure, could not be. Unlike the Housing Acts, the Rules were not the product of a legislative process during which they had been the subject of parliamentary debate. Accordingly, in the opinion of the judicial committee, the analogy with Kay was not available. What Lord Bingham had in mind appears from a consideration of Kay when it was in the House of Lords (supra). There the judicial committee accepted the soundness of a line of authority in the Court of Appeal on rights to possession of housing, a line which included Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48 where Lord Woolfe CJ, giving the judgment of the court, said at paras 69 and 72:

"... in considering whether [the housing association] can rely on article 8(2), the court has to pay considerable attention to the fact that Parliament intended when enacting section 21 (4) of the 1988 Act to give preference to the needs of those dependent on social housing as a whole over those in the position of the defendant. The economic and other implications of any policy in this area are extremely complex and far-reaching. This is an area where, in our judgment, the courts must treat the decisions of Parliament as to what is in the public interest with particular deference. The limited role given to the court under section 21(4) is a legislative policy decision. The correctness of this decision is more appropriate for Parliament than the courts and the Human Rights Act 1998 does not require the courts to disregard the decisions of Parliament in relation to situations of this sort when deciding whether there has been a breach of the Convention.

...

72. We are satisfied, that notwithstanding its mandatory terms, section 21(4) of the 1988 Act does not conflict with the defendant's right to family life. Section 21(4) is certainly necessary in a democratic society in so far as there must be a procedure for recovering possession of property at the end of a tenancy. The question is whether the restricted power of the court is legitimate and proportionate. This is the area of policy where the court should defer to the decision of Parliament. We have come to the conclusion that there was no contravention of article 8..."

At para 35 in Kay Lord Bingham put the matter this way:

"The statutory scheme is ...likely to satisfy the article 8 (2) requirement of proportionality if it is clear that the statutory scheme represents a democratic solution to the problems inherent in housing allocation. ...Where a statutory scheme covers the case of an occupier, and conditions are prescribed for obtaining possession, and those conditions are met, it only be in highly exceptional circumstances that the occupier will gain additional protection from article 8."

Lord Nicholls agreed. At para 53 of the judgment he said this:

"53 The starting point is clear enough. A possession order made by a court in respect of a defendant's home will be, at least ordinarily, an interference with the defendant's right to respect for his home within the meaning of article 8. Equally clearly, in almost all cases of the two types mentioned above that interference will be justified as 'necessary in a democratic society' on one or more of the grounds set out in article 8(2). The interference will be justified because in one case the defendants never had any right to be on the property at all. In the other case the defendants had only the limited rights afforded by the housing legislation. This complex, ever-changing law is testimony to the elaborate steps taken by Parliament to strike an appropriate balance between the competing interests of all those who are in need of homes. The country's housing stock is finite, and for many years the legislature has striven repeatedly to achieve the best and fairest use of the available housing. Parliament's decisions on this extremely difficult and intricate social problem are to be respected.

54 I said 'in almost all cases' because inevitably there may be the exceedingly rare case where the legislative code or, indeed, the common law is impeachable on human rights grounds."


[28] Now, the procedures adopted in the House of Commons on 19 June 2012 and in the House of Lords on 23 October 2012 can be distinguished from the more complex process of enacting and amending primary legislation, which was referred to and relied on in Poplar and Kay. Nevertheless, in contrast to the position with previous changes to the Immigration Rules, the changes contained in the Statement of Changes in Immigration Rules were the subject of a debate in the House of Commons and a debate in the House of Lords and, having regard to the outcome of these debates, the relevant provisions of the Rules can be taken to have been unanimously approved by both Houses of Parliament. That, it can be said, represents a firm consensus as between the executive and the legislature as to the extent to which the executive's power to refuse non-citizens leave to enter or to remain requires to be tempered by the need to make proportionate decisions in individual cases.


[29] Questions of proportionality are of course fact-sensitive but that is not to say that it is impossible to accommodate the consequences of article 8 within a system of rules, as long as provision is made for the exceptional case. The views of the respondent cannot be regarded as determinative of proportionality, ultimately that is a matter for judicial control, but there is every reason to give them very substantial weight, particularly when, as expressed in the general terms of the Immigration Rules, they have been endorsed by Parliament. The matter is addressed by Laws LJ handing down the judgment of the court when Huang was in the Court of Appeal. What was in issue there was the proper approach to be taken by an immigration adjudicator (now immigration judge) in an appeal where he is called upon to determine where a decision to remove the appellant was a disproportionate interference with his right to respect for his private and family life pursuant to article 8. The contending propositions, stated at their highest, were, on the one hand, that the adjudicator's role was limited to considering whether the Secretary of State's decision was within the range of reasonable assessments of proportionality (Wednesbury reasonableness) and, on the other, that the adjudicator had to provide his own autonomous answer upon the proportionality question (a full merits appeal). The Court of Appeal rejected the Wednesbury alternative but stopped short of adopting a full merits appeal. It recognised that there will be cases which truly raise questions of policy which are within the particular competence of government and therefore where deference would have to be accorded to the views of the Secretary of State (see [2006] QB 1 at para 56). However, there will also be cases (such as the cases before the court in Huang and the present case) where the adjudicator is called on to decide in relation to the particular circumstances of an individual appellant. About these cases Laws LJ said this (supra at paras 57 to 60 and 62):

"57 In these cases, the [Immigration] Rules have themselves struck the balance between the public interest and the private right, the search for which is inherent in the Convention as it has been interpreted by the Strasbourg court... At least they have done so for the general run of cases. Now, where Parliament has itself struck the balance between public interest (constituted by a statutory policy) and private right (constituted by a claim of Convention violation perpetrated by the policy), the court will accord very considerable respect to the balance so struck, and that approach is perfectly consonant with the court's own obligations under the Human Rights Act 1998. ...

58 In the present case the policy is given and the balance struck by the Rules and not by main legislation. But the balance so struck is not in our judgment entitled to less respect or deference on that account. We would emphasise the particularity with which the Rules have prescribed which classes of aliens will in the ordinary way be allowed to enter the United Kingdom and which will not. ...

59 It might be said that the Immigration Rules constitute for all cases the balance to be struck between private right and public interest, and this is conclusive for any judgment in an article 8 case as to whether removal or deportation is proportionate and so justified under article 8(2). But the Secretary of State rightly does not so contend. If that were the law, our municipal statute need do no more than confer a right of appeal to allow the immigrant to contend that on the true facts he has a good claim under the Rules. ...it is surely plain that the legislature contemplated appeals on Convention grounds, including article 8, which might succeed even though the appellant had no good claim under the Rules. The true position in our judgment is that the Human Rights Act 1998 and section 65 (1) [of the Immigration and Asylum Act 1999] require the adjudicator to allow an appeal against removal or deportation brought on article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules.

60 In such a case the adjudicator is not ignoring or overriding the Rules. On the contrary it is a signal feature of his task that he is bound to respect the balance between public interest and private right struck by the Rules with Parliament's approval. That is why he is only entitled on article 8 grounds to favour an appellant outside the Rules where the case is truly exceptional. This, not Wednesbury or any revision of Wednesbury, represents the real restriction which the law imposes on the scope of judgment allowed to the adjudicator. It is not a question of his deferring to the Secretary of State's judgment of proportionality in the individual case. The adjudicator's decision of the question whether the case is truly exceptional is entirely his own. He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances. In our respectful view such an approach is also reflected in Lord Bingham's words in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 at para 20, which we have already cited:

'Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis.'

...

62 In summary, where in a human rights challenge the court is called upon in any respect to judge the weight or the merits of government policy, it will in deciding the outcome allow a margin of discretion to the policy-maker. So much is required by the democratic principle: the principle of respect for the democratic powers of the state. In such a case, consistently with its obligations under the Human Rights Act 1998, the court's decision is more intrusive than Wednesbury, being subject to the disciplines described by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532. But there are cases ... in which the court or adjudicator is not at all called upon to judge policy. In that case no question of respect for the democratic powers of the State arises: save in the sense, again exemplified here by the Immigration Rules, that prior decisions of the executive or legislature may have fixed, and narrowed, the territory across which the adjudicator's autonomous judgment may operate."

The consideration that where Parliament has itself struck the balance between public interest (constituted by a statutory policy) and private right (constituted by a claim of Convention violation perpetrated by the policy in a particular case) "in the general run of cases", the court should accord very considerable respect to the balance so struck is, to my mind, compelling. Agreeing with Mr Pirie's submission, I do not find it to have been rejected when Huang reached the House of Lords. Rather, in seeking a route avoiding the over-complication and mystification which it had seen as entering the case (see supra para 14) the judicial committee laid aside the suggestion that the Immigration Rules as then drafted should be seen as expressing the will of Parliament because the committee did not see in the negative resolution procedure a sufficient means of confirming Parliament's endorsement of the Rules. As Mr Pirie argued, following the debates in Parliament in June and October 2012, the position is now different in that the respondent made it very explicit to the House of Commons that she was inviting endorsement of her judgement as to the effect of article 8 in the majority of cases. The question therefore may then be how different?


[30] There can be no real doubt but that the respondent, by securing that the changes to the Rules have been debated in both Houses of Parliament without any formal expression of disapproval, must be taken to have the support of the legislature for her approach to the question as to whether it will be proportionate to remove persons from the United Kingdom who have no right to remain other than that which may be conferred by article 8 of the Convention. Had that been the case in relation to the relevant rules when Huang was before the House of Lords, the judicial committee would have had to recognise that fact and give it considerable weight for the reasons articulated by Laws LJ when Huang when was in the Court of Appeal. While it is indeed true that constitutionally the protection of individual fundamental rights is the within the particular territory of the courts (see Huang v Home Secretary [2006] QB 1 at para 55), the judiciary has no special expertise in determining what is or is not proportionate. It is because it is part of the function of an administrative decision-maker to make proportionate decisions that such decisions may be considered unlawful if they interfere with article 8 rights (for example) and are not proportionate. However, the different status that may be accorded to those provisions of the Immigration Rules which were changed as from 9 July 2012, in contrast to the Rules under consideration in Huang does not, in my opinion, justify the conclusion that the unanimous opinion of the judicial committee in that case no longer represents the law because it has lost its underlying rationale. In Huang the focus was on interference with family life. The judicial committee concluded that in determining an appeal the decision on the proportionality of such interference was an autonomous one for the adjudicator. Its opinion is succinctly stated at para 20 of [2007] 2 AC 167:

"20 In an article 8 case where this question [scilicet the question as to whether a decision was proportionate] is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide."

I take that still to be the law. However, in giving the opinion of the judicial committee, Lord Bingham continued:

"It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test."

If those who did not qualify for leave to remain under the Rules as they were at the time of the decision of the House of Lords in Huang but would be entitled to succeed under article 8 was "a very small minority", it must follow that now the respondent has specifically addressed the impact of article 8 in drafting changes to the Rules and has obtained the endorsement of Parliament as to the proportionality of the way in which she has done so, those who now might be expected "to succeed under article 8" will be a very small minority indeed. As long as the Rules have not been enacted as either primary or secondary legislation their application in a particular case may amount to a breach of Convention rights: Pankina v Secretary of State for the Home Department supra Sedley LJ at para 44, but where the Rules have been redrafted with a view to avoiding contravention of article 8 and where that redraft has been approved by Parliament in the manner described above, a case which succeeds on article 8 having failed in terms of the Rules would have to be described as exceptional. The respondent's argument in the present case goes no further than that.


[31] At this point I must emphasise a feature of the argument before me. It was conducted on both sides without any examination of the detail of the new rules and, in particular, the provisions applicable to the petitioner's case. Copies of rules 276ADE to 276DH and appendix FM were lodged in process and one can see from the decision letters that it was rule 276ADE and certain provisions of appendix FM that were applied in response to the petitioner's claim but, beyond that, the debate before me was conducted on the basis, consistent with how the changes to the Rules were presented in Parliament, that the rules relevant to the petitioner's case had been drafted with an eye to representing the respondent's view of what was required to satisfy the need for proportionality. Thus, although the expression was not used, the argument was conducted on either side of the bar on the basis that the rules by reference to which the petitioner failed to qualify for leave to remain were "article 8-specific" in the sense that they had been framed with the object of accommodating the criteria relevant to the assessment of an article 8 claim. That this was an appropriate basis would seem to be confirmed by the head-note to rule 276ADE which is "Requirements to be met by an applicant for leave to remain on the grounds of private life".


[32] Mr Forrest particularly relied on the decision of the Upper Tribunal in MF v Secretary of State for the Home Department supra in support of his contention that in a case such as the present, notwithstanding the new rules, it remained necessary to apply a "two-stage test" or a "two-stage approach" in determining whether refusal of leave to remain was lawful. On such an approach, the first stage is a consideration of whether it was correctly decided that the applicant did not qualify under the Immigration Rules. The second stage is a consideration of whether removal from the United Kingdom would result in a contravention of the applicant's article 8 rights. Mr Pirie urged me not to follow MF which, he reminded me, was not binding on this court. While that is so, the decision demonstrates much learning on the part of a specialised tribunal. It succinctly sums up what it considers to be the effect of the new rules at para 41 of its determination:

"Our conclusion is that the need for a two-stage approach in most article 8 cases remains imperative because the new rules do not fully reflect Strasbourg jurisprudence as interpreted by our higher courts and in particular they do not encapsulate the Maslov criteria."

The appellant in MF was a foreign criminal as defined by section 32 (1) of the UK Borders Act 2007, hence the reference to the Maslov criteria. The facts in the case were therefore somewhat removed from those in the present petition. There is no issue as to the application of the Maslov criteria in the case before me or indeed (at least on the argument I heard) any issue as to other Strasbourg jurisprudence not being reflected in the relevant Immigration Rules. MF can therefore be distinguished on these grounds. However, in what is clearly a careful and well-informed attempt to grapple with the problem of according a proper status to the new rules, MF offers the important insight that the status of the new rules may not be uniform. In particular, not all of the new rules are article 8-specific which is part of the reason why, in the opinion of the Tribunal, a second stage, taking into account the Strasbourg jurisprudence, may be necessary before an immigration judge can be satisfied that a particular refusal of leave to remain is article 8 compliant.


[33] I do not consider it necessary to engage in a critique of the Upper Tribunal's determination in MF. Parties' submissions did not encourage me to do so. My concern is with the legality of the respondent's decision in the case before me. It was accepted that that decision was made on the basis that the petitioner's circumstances did not come within the Immigration Rules and, additionally, were not exceptional, and that there was no realistic prospect of an immigration judge coming to a different conclusion. In adopting that framework for decision-making the official was following instructions consequent upon Parliamentary approval of the recent changes to the Immigration Rules. In my opinion that does not disclose an error of law, at least where the relevant Rules were accepted as being article-8 specific, and no point was raised as to the applicability of Strasbourg jurisprudence (as interpreted by domestic higher court authority) in some way extending protection of private life beyond what may be taken as having been addressed in the article-8 specific Immigration Rules. While it begins to cross over into Mr Pirie's alternative argument, it has to be borne in mind that the facts here are not complicated or unusual: the petitioner has no right to be in the United Kingdom, despite claiming to have been resident since 2001; and he has recently established a relationship with a British citizen and her young child. Mr Forrest repeatedly stressed the need for there to be "a proper evaluation" of these facts by an immigration judge but, despite being pressed to do so, he was unable to explain what exactly that would involve and what it would reveal. All that is said to be in issue here is whether removal would be disproportionate. In the generality of cases having the features of the present, Parliament may be taken not to have considered removal to be disproportionate. That may not finally determine the matter in the individual case but the exceptional individual case is allowed for in the respondent's approach. Here nothing was put forward that might take the petitioner's case out of the generality of cases which the Immigration Rules must be taken to have addressed.


[34] If, on the other hand, I am wrong in holding the respondent not to have made an error of law, the question arises as to whether the error which the petitioner submits that she did make is material. The petitioner has argued that an immigration judge properly directing himself would apply the two-stage test outlined in MF v The Secretary of State supra. The first stage would be to determine whether the petitioner was entitled to obtain leave to remain by virtue of the Immigration Rules. It is conceded that the petitioner had no such entitlement. The second stage would to determine whether, notwithstanding the absence of such entitlement and the consequence that the petitioner's removal would be according to law, it was nevertheless a disproportionate interference with his private life. At that second stage, following the Upper Tribunal in MF (supra at para 42) as Mr Forrest encouraged me to do, full weight would require to be given to the public interest as identified by the respondent and Parliament. In my opinion, given the fragile nature of the petitioner's claim to private life in the United Kingdom, there simply cannot be said to be a realistic prospect of an immigration judge finding his removal to be a contravention of article 8.


[35] I will dismiss the petition. I reserve all questions of expenses.


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