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||Neutral Citation Number:  EWHC 720 (Admin)
||Case No: CO/12951/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE SALES
|| The Queen on the application of
||- and -
||Secretary of State for the Home Department
(Transcript of the Handed Down Judgment of
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Mr Zane Malik (instructed by MLC) for the Claimant
Ms Lisa Giovannetti QC (instructed by Treasury Solicitor) for the Defendant
Hearing date: 19/3/13
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Sales :
- This is an application for judicial review of the lawfulness of certain additions to the Immigration Rules promulgated by the Secretary of State on 13 June 2012 in her Statement of Changes in Immigration Rules, HC 194, in relation to claims based on family life, as now contained in provisions contained in Sections E-LTRP (Eligibility for limited leave to remain as a partner) and EX.1 (Exception) of Appendix FM (Family Members) to the Immigration Rules. The ground of challenge relied upon is that Section EX.1 is unlawful on the basis that it is incompatible with Article 8 of the European Convention on Human Rights, as given effect in domestic law under the Human Rights Act 1998 ("the HRA"). I am told that this is an issue which affects a significant number of other cases.
- In addition, at the hearing, Mr Malik for the Claimant intimated, even if the new rules are not quashed as unlawful, the Claimant wished to challenge the lawfulness of the particular decision taken in his case to refuse him leave to remain in the United Kingdom. That was not a complaint distinctly set out in the Claimant's Grounds of Claim. However, on the footing that this challenge should focus upon the decision of the Secretary of State in revised form as set out in a new decision letter dated 18 March 2013 (which Mr Malik agreed to), Ms Giovannetti QC for the Secretary of State did not object to this further complaint being heard by the court.
- Also in issue were certain claims in relation to which permission had been refused by Collins J when he granted permission on 26 February 2013 for the claim in relation to Sections E-LTRP and EX.1, referred to above. Mr Malik renewed his application for permission in relation to those other claims at the hearing, although in the event he said very little about them. The further claims are (i) that Rule 276ADE of the Immigration Rules (which is another rule inserted into the Rules by HC 194), relating to private life, is unlawful for being incompatible with Article 8; and (ii) that Rule 276ADE and Section EX.1 "are unlawful for being incompatible with the constitutional fundamentals of rule of law, independence of judiciary and parliamentary sovereignty".
- I can state shortly at the outset that I refuse permission to apply for judicial review in relation to the further claims at (ii). Mr Malik said nothing to lead me to suppose that the reasons given by Collins J for refusing permission on that ground were invalid. I agree with Collins J that the new rules in no way call in question or undermine the rule of law, the independence of the judiciary or parliamentary sovereignty. The Secretary of State is entitled to set out her view, reflected in the guidance to her officials in the new rules, how Article 8 should operate. She does not trespass upon the sovereignty of Parliament in doing so. It continues to be for the courts to ensure that the law is properly respected by the executive; any failure by the executive to do that will lead to relief being granted by the courts.
- In relation to the further claim at (i), I do grant permission. Rule 276ADE concerns private life. Although in general the scope for a possible mismatch between the operation of Rule 276ADE and Article 8 in a particular case may be less than in the case of Section E-LTRP and Section EX.1 (which deal with family life), I consider that it still exists. Therefore, in my opinion, there is sufficient similarity between the arguments put forward to challenge the lawfulness of Section EX.1, for which permission has been granted, and the arguments in relation to the lawfulness of Rule 276ADE to warrant the grant of permission in relation to the latter as well.
- In this judgment, therefore, I focus on the claim in relation to EX.1 and Article 8 for which permission was granted by Collins J, the claim in relation to Rule 276ADE and Article 8 for which I grant permission and on the additional claim relating to the particular decision in the Claimant's case.
The new rules in Section E-LTRP, Section EX.1 and Rules 276ADE to 276CE
- Article 8 provides:
"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."
- The new rules introduced into the Immigration Rules by HC 194 are the product of work conducted by the Home Office to produce rules in a form which addresses more explicitly than the Immigration Rules did up till July 2012 the factors which, according to domestic and Strasbourg case-law, weigh in favour of or against a claim by a foreign national based on Article 8 to remain in the United Kingdom. The extent of the non-alignment or mismatch between the Immigration Rules prior to these changes and the approach required by Article 8 meant that many such claims had to be determined outside the Immigration Rules, by reference to the residual discretion of the Secretary of State to grant leave to remain in the United Kingdom outside the Rules. As explained in the witness statement of Clive Peckover on behalf of the Secretary of State:
"This was not considered conducive to clear, consistent and transparent decision-making, which, outside of exceptional circumstances, should properly reflect the Immigration Rules set by the Secretary of State and approved by Parliament. It also led, under the existing policy, to the perverse outcome that many in-country applicants (around 9,500 in 2010) who did not meet the requirements of the Immigration Rules but who could establish an Article 8-based claim to remain in the UK, received in some respects a better outcome (Discretionary Leave with recourse to public funds) than those applicants who met the requirements of the rules, who were granted leave to remain under the rules without such recourse."
- A consultation was conducted in relation to a proposed set of new rules designed to align more closely the Immigration Rules and the approach required under Article 8. On 13 June 2012, the Statement of Changes in Immigration Rules (HC 194) was laid before Parliament and the Impact Assessment, Policy Equality Statement and Statement of Compatibility with the ECHR relating to HC 194 were published.
- On 19 June 2012 the House of Commons debated and unanimously agreed a Government motion on the overall approach to Article 8 reflected in the new rules. The new rules were also debated in the House of Lords on 23 October 2012. The rules were formally made under the negative resolution procedure prescribed in the Immigration Act 1971. They came into force on 9 July 2012.
- New paragraphs 276ADE to 276CE of the Immigration Rules, introduced by HC 194, provide as follows:
Requirements to be met by an applicant for leave to remain on the grounds of private life
276ADE. The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 1.5 in Appendix FM; and
(ii) does not fall for refusal under any of the grounds in Section S-LTR 1.6 to 2.3 in Appendix FM; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment); or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life residing continuously in the UK (discounting any period of imprisonment); or
(vi) is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.
In considering applications under this paragraph, the Secretary of State shall attach less weight to private life in the UK established following refusal of an earlier application for leave to remain made under paragraph 276ADE.
Leave to remain on the grounds of private life in the UK
276BE. Limited leave to remain on the grounds of private life in the UK may be granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE are met. Such leave shall be given subject to such conditions as the Secretary of State deems appropriate.
Refusal of limited leave to remain on the grounds of private life in the UK
276CE. Limited leave to remain on the grounds of private life in the UK is to be refused if the Secretary of State is not satisfied that the requirements in paragraph 276ADE are met."
- Appendix FM to HC 194 provides in relevant part as follows:
This Appendix applies to applications under this route made on or after 9 July 2012 and to applications under Part 8 as set out in the Statement of Changes laid on 13 June 2012 (HC 194), except as otherwise set out at paragraphs A277-A280. …
Section E-LTRP: Eligibility for limited leave to remain as a partner
E-LTRP.1.1. To qualify for limited leave to remain as a partner all of the requirements of paragraphs E-LTRP.1.2. to 4.2. must be met.
E-LTRP.1.2. The applicant's partner must be-
(a) a British Citizen in the UK;
(b) present and settled in the UK; or
(c) in the UK with refugee leave or as a person with humanitarian protection.
E-LTRP.1.3. The applicant must be aged 18 or over at the date of application.
E-LTRP.1.4. The partner must be aged 18 or over at the date of application.
E-LTRP.1.5. The applicant and their partner must not be within the prohibited degree of relationship.
E-LTRP.1.6. The applicant and their partner must have met in person.
E-LTRP.1.7. The relationship between the applicant and their partner must be genuine and subsisting.
E-LTRP.1.8. If the applicant and partner are married or in a civil partnership it must be a valid marriage or civil partnership, as specified.
E-LTRP.1.9. Any previous relationship of the applicant or their partner must have broken down permanently, unless it is a relationship which falls within paragraph 278(i) of these Rules.
E-LTRP.1.10. The applicant and their partner must intend to live together permanently in the UK.
E-LTRP.1.11. If the applicant is in the UK with leave as a fiancé(e) or proposed civil partner there must be good reason why the marriage or civil partnership did not take place during that period of leave and evidence that it will take place within the next 6 months.
Immigration status requirements
E-LTRP.2.1. The applicant must not be in the UK-
(a) as a visitor;
(b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner; or
(c) on temporary admission.
E-LTRP.2.2. The applicant must not be in the UK in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1. applies. …
Section EX: Exception
EX.1. This paragraph applies if
(a) (i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and
(ii) it would not be reasonable to expect the child to leave the UK; or
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK."
- Along with the introduction of these additions to the Immigration Rules, the Secretary of State issued instructions regarding the approach to be applied by her officials in deciding whether to grant leave to remain outside the Rules, in the exercise of the residual discretion she has to grant such leave. The Secretary of State requires such leave to be granted in exceptional cases, but in paragraph 3.2.7d of the instructions she has amplified the guidance for the approach to be adopted, in these terms:
"3.2.7d Exceptional circumstances
Where the applicant does not meet the requirements of the rules refusal of the application will normally be appropriate. However, leave can be granted outside the rules where exceptional circumstances apply. Consideration of exceptional circumstances applies to applications for leave to remain and leave to enter. "Exceptional" does not mean "unusual" or "unique". Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin. Instead, "exceptional" means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. That is likely to be the case only very rarely.
In determining whether there are exceptional circumstances, the decision maker must consider all relevant factors, such as:
(a) The circumstances around the applicant's entry to the UK and the proportion of the time they have been in the UK legally as opposed to illegally. Did they form their relationship with their partner at a time when they had no immigration status or this was precarious? Family life which involves the application putting down roots in the UK in the full knowledge that their stay here is unlawful or precarious, should be given less weight, when balanced against the factors weighing in favour of removal, than family life formed by a person lawfully present in the UK.
(b) Cumulative factors should be considered. For example, where the applicant has family members in the UK but their family life does not provide a basis for stay and they have a significant private life in the UK. Although under the rules family life and private life are considered separately, when considering whether there are exceptional circumstances private and family life can be taken into account.
If the applicant falls to be granted because exceptional circumstances apply in their case, they may be granted leave outside the rules for a period of 30 months and on a 10 year route to settlement."
- The definition of "exceptional circumstances" which is given in this guidance equates such circumstances with there being unjustifiable hardship involved in removal such that it would be disproportionate – i.e. would involve a breach of Article 8. The practical guidance and illustrations given in the passage quoted above support that interpretation. No challenge is brought to the lawfulness of this guidance. In my view, it gives clear and appropriate guidance to relevant officials that if they come across a case falling outside the new rules, they nonetheless have to consider whether it is a case where, on the particular facts, there would be a breach of Article 8 rights if the application for leave to remain were refused.
The facts in the Claimant's case
- The Claimant is a citizen of India, born in 1978. In August 2006 he arrived in the United Kingdom with entry clearance as a visitor valid from 26 July 2006 to 26 January 2007. He over-stayed in the United Kingdom after the expiry of that leave, in breach of immigration controls. In 2008 he met Angela Palmer, a British citizen. In May 2009 they started living together as a couple. They do not have children.
- In late June 2011 the Claimant submitted an application for leave to remain in the United Kingdom on the basis of Article 8, as the unmarried partner of a person present and settled in the United Kingdom. That application was eventually refused without a right of appeal by a decision letter dated 8 October 2012, on the basis of findings on behalf of the Secretary of State that the Claimant's case did not fall within the new rules on private life and family life referred to above.
- In relation to family life, the decision letter explained that it was determined that the Claimant did not satisfy the criteria set out in Section E-LTRP, nor did he satisfy the criteria in Section EX.1 – in particular because no insurmountable obstacles had been identified with respect to the family unit re-locating to India. It was observed that, "Your partner has been introduced … to the Indian culture and ways in that country via a relationship with you. Your partner is of an age to learn the language of your region and has not shown that she is unable to [adapt] to the cultural, moral and economic aspects of that country."
- In relation to private life, the decision letter explained that the Secretary of State was not satisfied that the Claimant met the requirements set out in paragraph 276ADE. In particular, in relation to the requirement at paragraph 276ADE(vi), it was noted that although the Claimant stated that his family had cut all ties to him he did not say that he had no ties socially or culturally with India.
- The decision letter did not indicate that any consideration had been given to whether the Claimant's case might be "exceptional", as that expression is used in paragraph 3.2.7d of the Secretary of State's instructions to officials.
- The Claimant issued this claim for judicial review on 3 December 2012, complaining that the new rules applied in his case are unlawful and that their application to him had resulted in a decision in his case which was unlawful. As set out above, at the hearing Mr Malik for the Claimant also made clear that he maintained an alternative submission that, even if the new rules were held to be lawful, the individual decision taken in relation to the Claimant was unlawful. Ms Giovannetti for the Secretary of State explained that, for the purposes of these proceedings, the Secretary of State did not press an argument that the Claimant had available a suitable alternative remedy, namely to wait until the Secretary of State decided to issue removal directions and then appeal to the First-Tier Tribunal against that decision.
- Shortly before the hearing, the Secretary of State issued a revised decision letter, dated 18 March 2013. It is the decision as set out in this letter which is the focus for the Claimant's alternative challenge to the particular decision made by the Secretary of State in his case. The revised decision letter again set out conclusions that the Claimant did not qualify for leave to remain under the new rules, expanding somewhat on the reasons given in the letter of 8 October 2012. In relation to Section EX.1 on family life, the letter of 18 March 2013 set out the following reasons:
"12. Your client and his partner do not have children together and no evidence was provided to suggest otherwise. Therefore paragraph EX.1(a) does not apply.
13. It is accepted that your client is in a relationship with his partner, Angela Palmer, however, no evidence has been provided to suggest that there are any insurmountable obstacles to family life being continued overseas. Your client was served with removal papers on 8 November 2007 and was placed on reporting restrictions. However, your client did not attend his appointments and subsequently absconded. Your client and his partner entered into a relationship in February 2008, after your client had been served with removal papers, therefore knowing his immigration status was precarious and that he may not be allowed to stay in the United Kingdom.
14. Your client's partner has stated it would be difficult for her to relocate to India with your client as she is currently settled in the UK, but no evidence has been provided to suggest this is anything other than a preference. Your client's partner is employed in the UK, however, it would not be unreasonable to expect her to be able to secure appropriate employment overseas. Having considered the information provided, it is not accepted that your client and his partner would face significant hardship in relocating to India. …"
- In relation to rule 276ADE the letter of 18 March 2013 set out the following:
"16. Your client is 35 years old and entered the UK aged 28. As your client is over the age of 18, but not between the ages of 18 and 25 years, has not spent at least 20 years in the UK, he does not meet the requirements stated above. Your client has spent the majority of his life in India and he would be able to adjust back to life in India reasonably quickly. He has provided no evidence to substantiate his claim that he has no ties, including social, cultural or family, with India. In view of the fact that your client had spent the majority of his life in India, not the UK, it is reasonable to expect that such ties with his home country would have remained, in the absence of evidence to the contrary.
17. In view of the above the Secretary of State is not satisfied that your client meets the requirements of Paragraph  ADE (iii)-(vi) as stated above."
- The revised decision letter did address the question of exceptional circumstances and reached the conclusion that the refusal of the Claimant's application and his eventual removal would be proportionate and justified under Article 8(2), as follows:
"18. The Secretary of State has also considered whether there are any exceptional circumstances in your client's case which would make a refusal unjustifiably harsh, and which might make a grant of leave outside the rules appropriate. Careful consideration has been given to the information provided on your client's behalf, but he has not raised any exceptional circumstances and the Secretary of State is not satisfied that the exercise of discretion is warranted in this case.
19. For the reasons given above any interference with your client's private and family life would be proportionate and within the permissible aims of Article 8(2) and pursuant to the maintenance of an effective immigration control."
- It was not suggested by Mr Malik that the findings and assessments by the Secretary of State set out in paragraphs 12 to 14, 16 and 17 of the revised decision letter could be impugned as unlawful or irrational. His submission, on the Claimant's alternative case, was that the assessment by the Secretary of State that it would not be disproportionate to require the Claimant to leave the United Kingdom was based on an incorrect understanding of the legal test in relation to the family life limb of Article 8 to be derived from the relevant authorities (particularly the domestic authorities of EB (Kosovo) v Secretary of State for the Home Department  UKHL 41;  1 AC 1159 and VW (Uganda) v Secretary of State for the Home Department  EWCA Civ 5). Mr Malik submitted that the Secretary of State had applied a test of requiring the Claimant to show that there were insurmountable obstacles to him re-locating to India with his partner, whereas the correct test - in accordance with EB (Kosovo) at para.  in the speech of Lord Bingham and with VW (Uganda) at paras. - - should have been to ask whether his partner could reasonably be expected to follow him to India if he were removed there.
(a) The challenges to Section EX.1 and paragraph 276ADE
- There was some debate at the hearing about the status of the new rules. For general discussion about the status of the Immigration Rules, which is also relevant to the new rules, see Odelola v Secretary of State for the Home Department  UKHL 25;  1 WLR 1230. They do not have the status of primary legislation, or the full democratic legitimacy which goes with that status: Huang v Secretary of State for the Home Department  UKHL 1;  2 AC 167, . That is the position even though the new rules were subject to debate in Parliament going beyond what is usual when such rules are made and laid before Parliament. However, the Immigration Rules do have some degree of democratic endorsement, in that they represent the policy of the Secretary of State (who is politically accountable to Parliament and, ultimately, the electorate) and they are laid before Parliament and so are amenable to being called up for a negative resolution in Parliament (a measure of parliamentary control which is greater than would be the case if, for example, the Secretary of State simply had power to make the rules without them being subject to such a procedure; although it also clearly less than would be the case if they were actually made as subordinate legislation, in particular if made pursuant to the affirmative resolution procedure, or as full primary legislation).
- I do not think that more than this can usefully be said for the purposes of this judgment. At some points in the application of Convention rights, including in the field of immigration control, it may be the case that particular weight is to be given to domestic laws, rules or practices which fall within a margin of appreciation or discretionary area of judgment (to use the terminology employed by Lord Hope of Craighead in R v Director of Public Prosecutions, ex p. Kebilene  2 AC 326 at 381) to be accorded to the relevant domestic rule-maker; and it is also possible that in some areas the extent to which such rules or practices have been subject to more direct forms of democratic control by Parliament could be relevant to working out the weight to be given to them, albeit they still remain essentially a product of the executive: compare R (Sinclair Collis Ltd) v Secretary of State for Health  EWCA Civ 437;  QB 394 at - per Lord Neuberger of Abbotsbury MR; and in relation to the field of immigration, see Izuazu (Article 8 – new rules)  UKUT 00045 (IAC),  et seq.. But this judgment is not the place for an extended essay in the abstract on the width or narrowness of the margin of appreciation in any particular area of immigration law in relation to which Article 8 may apply. It is sufficient to note that in relation to both private life and family life, the new rules do not cover and provide for every conceivable case in which the Secretary of State may be found to be subject to an obligation under Article 8 to allow a foreign national to remain in the United Kingdom. By reason of the sheer variety of human life and family associations and the wide application of the immigration regime and Article 8 – which carries with it the need for a degree of flexibility to make suitable accommodation for individual cases reflecting that variety - there will always be the possibility in principle for particular factors in individual cases to be of especially compelling force in favour of a grant of leave to remain even though not fully reflected in the new rules.
- There is, in my judgment, nothing untoward in the fact that the new rules do not necessarily track absolutely precisely and provide in detail in advance for every nuance in the application of Article 8 in individual cases. I do not think it would be feasible, or even possible, to produce simple Immigration Rules capable of providing clear guidance to all the officials who have to operate them that did that. That was true of the Immigration Rules prior to their amendment, and it could not be suggested that they were unlawful as a result. As observed by Lord Bingham in Huang at , "It is a premise of the statutory scheme enacted by Parliament that an applicant may fail to qualify under the rules and yet may have a valid claim by virtue of article 8." In his speech in Huang, at -, Lord Bingham explained how the law provides that immigration officers, entry clearance officers and all staff at what is now the United Kingdom Border Agency should take decisions in a way that complies with individuals' Convention rights, including under Article 8, and how an appeal will lie in defined cases to what is now the First-Tier Tribunal on human rights grounds. At paras. -, Lord Bingham explained the task of the appellate immigration authority in just the type of case where an applicant fails under the Immigration Rules but nevertheless has a valid claim under Article 8 to remain in the country. If, in relation to a particular immigration decision, no appeal is provided for, the proper compliance of immigration officials with their obligation (in particular, under section 6(1) of the HRA) to act in a way which is compatible with Convention rights will be enforced by this Court on an application for judicial review, such as has been brought in this case.
- As appears from the new guidance issued by the Secretary of State in relation to exercise of her residual discretion to grant leave to remain outside the Rules, as set out above, and as Mr Peckover makes clear in his witness statement, the new rules contemplate that there will be some cases in which a right to remain based on Article 8 can be established, even though falling outside the new rules. Therefore, the basic framework of analysis contemplated by Lord Bingham in Huang continues to apply, as was recognised by the Upper Tribunal in Izuazu.
- Nonetheless, the new rules do provide better explicit coverage of the factors identified in case-law as relevant to analysis of claims under Article 8 than was formerly the position, so in many cases the main points for consideration in relation to Article 8 will be addressed by decision-makers applying the new rules. It is only if, after doing that, there remains an arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8 that it will be necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under the new rules to require the grant of such leave.
- I agree with the guidance given by the Upper Tribunal in Izuazu at paras. -, as follows:
"40. We accordingly further endorse the Upper Tribunal's observation in [MF (Article 8 – new rules) Nigeria  UKUT 00393 (IAC)] that judges called on to make decisions about the application of Article 8 in cases to which the new rules apply, should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. If he or she does, there will be no need to go on to consider Article 8 generally. The appeal can be allowed because the decision is not in accordance with the rules.
41. Where the claimant does not meet the requirements of the rules it will be necessary for the judge to go on to make an assessment of Article 8 applying the criteria established by law.
42. When considering whether the immigration decision is a justified interference with the right to family and/or private life, the provisions of the rules or other relevant statement of policy may again re-enter the debate but this time as part of the proportionality evaluation. Here the judge will be asking whether the interference was a proportionate means of achieving the legitimate aim in question and a fair balance as to the competing interests.
43. The weight to be attached to any reason for rejection of the human rights claim indicated by particular provisions of the rules will depend both on the particular facts found by the judge in the case in hand and the extent that the rules themselves reflect criteria approved in the previous case law of the Human Rights Court at Strasbourg and the higher courts in the United Kingdom."
The only slight modification I would make, for the purposes of clarity, is to say that if, after the process of applying the new rules and finding that the claim for leave to remain under them fails, the relevant official or tribunal judge considers it is clear that the consideration under the Rules has fully addressed any family life or private life issues arising under Article 8, it would be sufficient simply to say that; they would not have to go on, in addition, to consider the case separately from the Rules. If there is no arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8, there would be no point in introducing full separate consideration of Article 8 again after having reached a decision on application of the Rules.
- Of course, there may be scope for argument about the extent to which the new rules do as a matter of law or on the facts of a particular case adequately reflect criteria identified in the case-law as relevant to analysis under Article 8. The scope for such argument is likely to narrow over time as new cases come forward and new decisions of the higher courts in the United Kingdom and the European Court of Human Rights ("ECtHR") are handed down.
- Ms Giovannetti made clear for the Secretary of State that in these proceedings it is not contended that the effect of the new rules is to restore an exceptional circumstances test equivalent to that rejected by the House of Lords in Huang (by reference to the old Immigration Rules) and by the Upper Tribunal in Izuazu (by reference to the new rules), by contrast with the position argued unsuccessfully by the Secretary of State in Izuazu: see , - and . Rather, the Secretary of State accepts that the consideration of possible Article 8 claims arising outside the new rules involves broader consideration of cases by reference to the general factors and approach set out in the new guidance on her residual discretion set out above.
- The Secretary of State does not contend that the new rules completely cover every conceivable case in which a foreign national may have a good claim for leave to remain under Article 8. In relation to both Section EX.1 (family life) and paragraph 276ADE (private life) it is possible to envisage cases where they would not:
i) In relation to Section EX.1(b), for example, there may be individual cases in which, for some reason, there are particularly compelling reasons arising from the specific circumstances why leave to remain should be granted under Article 8, even though there may not be insurmountable barriers to family life continuing outside the United Kingdom, in the applicant's country of origin; and
ii) In relation to paragraph 276ADE, for example, there may be individual cases of adults who have lived in the United Kingdom for less than 20 years and who do retain some ties to their country of origin, but in relation to whom the ties they have developed and the roots they have put down in the United Kingdom manifestly and strongly outweigh those ties, so that it would be disproportionate to remove them. (On the facts of the Claimant's case, as determined by the Secretary of State, he does not have an arguable case of this kind available to him).
- In cases where consideration of the new rules does not fully dispose of a claim based on Article 8, the Secretary of State will be obliged to consider granting leave to remain outside the Rules. If she does not, where there is an appeal the First-Tier Tribunal will be obliged to consider allowing the appeal, and where there is no appeal, judicial review will lie.
- The important points for present purposes are that there is full coverage of an individual's rights under Article 8 in all cases by a combination of the new rules and (so far as may be necessary) under the Secretary of State's residual discretion to grant leave to remain outside the Rules and that, consequent upon this feature of the overall legal framework, there is no legal requirement that the new rules themselves provide for leave to remain to be granted under the Rules in every case where Article 8 gives rise to a good claim for an individual to be allowed to remain. This had always been the position in relation to the operation of the regime of immigration control prior to the introduction of the new rules, and the introduction of the new rules has not changed these basic features of the regime.
- Therefore, in my judgment, the Claimant's challenge to the lawfulness of the new rules fails. No matter how closely, or not, the new rules track the detailed application of Article 8 in individual cases, the immigration control regime as a whole (including the Secretary of State's residual discretion) fully accommodates the requirements of Article 8. The fact that the new rules do not do that in all cases by themselves does not render them unlawful.
- Having reached this conclusion, however, I think that I should go on to consider the substance of the Claimant's claim that Section EX.1(b) leaves a wide gap between the new rules and what the relevant case-law says about the way in which Article 8 operates. The parties have treated these proceedings as a test case on this point and I heard detailed argument on it. There is some disagreement in the authorities about the proper interpretation of the judgments in EB (Kosovo) and VW (Uganda), and it would be helpful for applicants and for the Secretary of State and her officials and the other immigration authorities to have guidance from the court on this, since it may affect the reasoning to be applied in individual cases in relation to the new rules and the Secretary of State's residual discretion.
- The present case does not involve deportation of an individual who has committed serious crimes in the United Kingdom. Rather, it involves a claimant who has overstayed his leave to remain in the country and who, after his leave to remain ended, has formed a relationship with Ms Palmer which constitutes family life. There are no children affected by the decision. The family life between the Claimant and Ms Palmer was established at a time when it was known to be precarious, because of the absence of any right on the part of the Claimant to remain in the United Kingdom.
- In such a case, there is a substantial body of Strasbourg case-law which explains the general approach to be applied when assessing the proportionality of a removal of a foreign national by reference to Article 8. In Rodrigues da Silva and Hoogkamer v Netherlands (2007) 44 EHRR 34, drawing on previous statements in its jurisprudence, the ECtHR explained the approach at para. 39, as follows:
"The Court reiterates that in the context of both positive and negative obligations the State must strike a fair balance between the competing interests of the individual and of the community as a whole. However, in both contexts the State enjoys a certain margin of appreciation. Moreover, Art.8 does not entail a general obligation for a state to respect immigrants' choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a state's obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the contracting state, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (e.g. a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion. Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Art.8 ."
- This has been repeated and adopted by the ECtHR as its reasoning in near identical terms in many cases since then: Useinov v The Netherlands, App. 61292/00, ECtHR, decision of 11 April 2006; Konstatinov v The Netherlands, App. 16351/03, ECtHR, judgment of 26 April 2007, para. 48; M v United Kingdom, App. 25087/06, ECtHR, decision of 24 June 2008; Omoregie v Norway, App. 265/07, ECtHR, judgment of 31 July 2008, para. 67; Y v Russia (2010) 51 EHRR 21, para. 104; Haghigi v The Netherlands, App. 38165/07, ECtHR, decision of 14 April 2009; Nunez v Norway, App. 55597/09, ECtHR, judgment of 28 June 2011, para. 70; Arvelo Aponte v The Netherlands, App. 28770/05, ECtHR, judgment of 3 November 2011, para. 55; Antwi v Norway, App. 26940/10, ECtHR, judgment of 14 February 2012, para. 89; Biraga v Sweden, App. 1722/10, ECtHR, decision of 3 April 2012, paras. 49-51; and Olgun v The Netherlands, App. 1859/03, ECtHR, decision of 10 May 2012, para. 43. In my view, this case-law amounts to clear and constant jurisprudence of the ECtHR which, in light of the guidance given by the Supreme Court in Pinnock v Manchester City Council  UKSC 6;  2 AC 104, at , ought, all other things being equal, to be followed by the domestic courts. I was not taken to any judgment of the ECtHR which called into question this repeated statement of the proper general approach to be adopted when considering questions of proportionality under Article 8. I do not read the judgment of the Grand Chamber in Boultif v Switzerland (2001) 33 EHRR 50 at para.  (referred to in Izuazu at para. , in a passage emphasised by Mr Malik) as being in any way inconsistent with the statements in the other cases referred to – and plainly the ECtHR in those cases did not think there was any inconsistency.
- The approach explained in the Strasbourg case-law indicates that where family life is established when the immigration status of the claimant is precarious, removal will be disproportionate only in exceptional cases; and also that consideration of whether there are insurmountable obstacles to the claimant's resident spouse or partner relocating to the claimant's country of origin to continue their family life there will be a highly material consideration. This is not to say that the question whether there are insurmountable obstacles to relocation will always be decisive. The statement of general approach referred to above refers to a range of factors which may bear upon the question of proportionality. For example, the extent to which there has been delay by the host state in taking a decision to remove a foreign national may be relevant (a factor discussed in EB (Kosovo)). Therefore, it cannot be said that in every case consideration of the test in Section EX.1 of whether there are insurmountable obstacles to relocation will necessarily exhaust consideration of proportionality, even in the type of precarious family life case with which these proceedings are concerned. I agree with the statement by the Upper Tribunal in Izuazu in the latter part of para. , that the Strasbourg case-law does not treat the test of insurmountable obstacles to relocation as a minimum requirement to be established in a precarious family life case before it can be concluded that removal of the claimant is disproportionate; the case-law only treats it as a material factor to be taken into account.
- Nonetheless, I consider that the Strasbourg guidance does indicate that in a precarious family life case, where it is only in "exceptional" or "the most exceptional" circumstances that removal of the non-national family member will constitute a violation of Article 8, the absence of insurmountable obstacles to relocation of other family members to that member's own country of origin to continue their family life there is likely to indicate that the removal will be proportionate for the purposes of Article 8. In order to show that, despite the practical possibility of relocation (i.e. the absence of insurmountable obstacles to it), removal in such a case would nonetheless be disproportionate, one would need to identify other non-standard and particular features of the case of a compelling nature to show that removal would be unjustifiably harsh.
- On this interpretation of the case-law, the gap between the test for leave to remain under EX.1(b) and the result one would arrive at by direct consideration of Article 8 in the precarious family life class of case is likely to be small. In the majority of such cases, if the applicant for leave to remain cannot show that there are insurmountable obstacles to relocation of a spouse or partner to his or her country of origin so as to meet that part of the test laid down in EX.1(b), they will not be able to show that their removal is disproportionate.
- Mr Malik submitted that, although it might be possible to derive all this from the Strasbourg cases, this is not an approach or a conclusion which is open to a domestic court at first instance level, because of what has been said by Lord Bingham in EB (Kosovo) and by the Court of Appeal in VW (Uganda). At para.  of his speech in EB (Kosovo), with which the other members of the Appellate Committee agreed, Lord Bingham said:
"Thus the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires. "
- Mr Malik contrasts the language of "cannot reasonably be expected to follow the removed spouse to the country of removal" with a formulation based on "insurmountable obstacles". He submits that Lord Bingham rejected an approach focused on a test of insurmountable obstacles to relocation in favour of a looser test, more generous to applicants for leave to remain in family life cases. In support of that submission, Mr Malik also placed particular emphasis on the decision of the Court of Appeal in VW (Uganda) at paras. - in the judgment of Sedley LJ. Having referred to para.  of the speech of Lord Bingham in EB (Kosovo), Sedley LJ said this at  and :
"19. The words which I have italicized ["and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal"] lay to rest an issue which has troubled decision-makers and advocates at least since the decision of this court in R (Mahmood) v Home Secretary  1 WLR 840, because of the use by Lord Phillips MR, in the course of giving the second judgment, of the phrase "insurmountable obstacles" in the context of art. 8. This court sought, in the later case of LM (DRC) v Home Secretary  EWCA Civ 325 to explain the contextual significance of the phrase. Ms Busch adopts what I said in §11-14 of my judgment in that case. But for the present, at least, the last word on the subject has now been said in EB (Kosovo). While it is of course possible that the facts of any one case may disclose an insurmountable obstacle to removal, the inquiry into proportionality is not a search for such an obstacle and does not end with its elimination. It is a balanced judgment of what can reasonably be expected in the light of all the material facts. …
"24. EB (Kosovo) now confirms that the material question in gauging the proportionality of a removal or deportation which will or may break up a family unless the family itself decamps is not whether there is an insuperable obstacle to this happening but whether it is reasonable to expect the family to leave with the appellant. It is to be hoped that reliance on what was a misreading of Mahmood, as this court had already explained in LM (DRC)  EWCA Civ 325 (and as Collins J had previously done in Bakir  UKIAT 01176, § 9), will now cease."
- Contrary to the submission of Mr Malik, I do not think that it is right to try to read Lord Bingham's statement in EB (Kosovo) as a canonical formulation of the test to be applied. The basic point he made was that the domestic courts should seek to follow the general approach to application of Article 8 in immigration cases to be identified from the Strasbourg case-law. His reference to what could reasonably be expected of a spouse was a loose, compendious summary of how the ECtHR tends to look at the issue, rather than a detailed and authoritative expression of the approach to be adopted, arrived at after careful analysis of the relevant Strasbourg judgments. In fact, it seems clear that Lord Bingham was not attempting to produce such an authoritative and canonical statement of the law, since there is a complete absence from his speech of any detailed consideration of the relevant Strasbourg judgments on the issue, such as one would have expected if he had meant the formulation of in para.  of his speech to be a definitive statement of the test to be derived from the Strasbourg case-law, in line with what he said should be done in the immediately preceding sentence. Indeed, I think that Lord Bingham was seeking not to be unduly prescriptive in para.  of his speech, and indicated that the domestic courts should refer to the Strasbourg case-law for guidance, precisely because of a consciousness of the difficulty of producing clear, crisp and definitive encapsulations of the Strasbourg case-law on the issue.
- On this question I find myself in agreement with the judgment of Burnett J in R (Kotecha) v Secretary of State for the Home Department  EWHC 2070 (Admin) at -. He also concluded that Lord Bingham in this part of his speech in EB (Kosovo) was not seeking to lay down in the words he used a binding and definitive statement of the proper approach on the question of relocation, departing from the approach of the ECtHR. Burnett J also concluded that nothing in Sedley LJ's judgment in VW (Uganda) qualified this interpretation of EB (Kosovo). I agree. As appears from that judgment, Sedley LJ was concerned only to make clear that an "insurmountable obstacles" or "insuperable obstacle" test was not the test to be applied under Article 8 in this sort of case, but that a wider assessment taking into account other potentially relevant factors as well could be required. This is consistent with what is properly to be derived from the Strasbourg cases. As I have sought to set out above, insurmountable obstacles to relocation is not the sole and definitive test for disproportionality in precarious family life cases.
- For these reasons, I do not accept Mr Malik's submission about the effect of EB (Kosovo) and VW (Uganda). In my judgment, the correct analysis of the position is that which I have set out above by reference to the Strasbourg case-law. The consequence, in my view, is that in the majority of precarious family life cases where removal is in question, where the Secretary of State's officials conclude that the family member who is applying for leave to remain cannot satisfy the test in Section EX.1(b) in the new rules, it is unlikely that there will be a good arguable case (let alone a case that is ultimately found to be established) that Article 8 would require that leave to remain should be granted outside the Rules.
- Finally, I should mention that I do have some concern about the use of the label, "exceptional cases", in the Secretary of State's guidance, to describe the area in which the Secretary of State's residual discretion operates. It is not wrong, as such, but there is some risk that busy, hard-pressed officials who refer only to the label might not clearly keep in mind the detail of the policy, and the particular nuance that the policy gives to the notion of exceptional cases, in identifying them with cases of disproportionality under Article 8. Officials should take care to avoid a "tick box" approach, genuinely bear the policy guidance in mind and seek to stand back after working through the analysis required under the new rules so as to make an overall assessment of the facts to see whether there might be a good arguable case of disproportionality if leave to remain is not granted and, if there is, to examine that case with care to see whether removal would be justified. The reasoning in decision letters should seek to demonstrate that this reasoning process has indeed been gone through.
(b) The challenge to the decision in the Claimant's individual case
- The evidence put forward by the Claimant and Ms Palmer falls well short of showing that there is any insurmountable obstacle to them relocating to India to carry on their family life there. Mr Malik did not suggest that the analysis of the position under Section EX.1(b) by the Secretary of State could be impugned. Since the Claimant's case was a case in which the relevant family life had been formed under circumstances where it was known that the Claimant had no right to be in the country, the family life in issue was precarious in the sense referred to in the Strasbourg authorities. There were no other factors or matters put forward by the Claimant and Ms Palmer in their representations to the Secretary of State or to this court which could be said to raise an arguable case that the Claimant's removal from the United Kingdom might nevertheless be disproportionate for the purposes of Article 8. In these circumstances, it was not incumbent on the Secretary of State under Article 8 to go on to consider as a discrete matter whether leave to remain should be granted outside the Rules (though it might have been sensible to have stated that the Secretary of State had made this assessment, in order to explain why there was no discrete consideration of the Secretary of State's residual discretion in the context of Article 8). Therefore, in my view, the conclusion set out in the first decision letter, dated 8 October 2012, was lawful.
- However, in any event, the Secretary of State's decision as set out in her revised decision letter was not based on her assessment as to the absence of an insurmountable obstacle to the Claimant and Ms Palmer relocating to India. The reasons why the Secretary of State considered that the Claimant did not satisfy Section EX.1(b), as set out in that letter, were wider than simply to say that there were no insurmountable obstacles to relocation to India. The Secretary of State also expressly referred to consideration whether the case qualified as an exceptional case (in the sense given by the Secretary of State's policy guidance, set out above).
- In relation to the revised decision, I consider that whether the proper relevant test is one of insurmountable obstacles to relocation or one of whether it would be reasonable to expect the Claimant and Ms Palmer to relocate to India (using the language of Lord Bingham in EB (Kosovo)), in either case the challenge to the individual decision would fall to be dismissed.
- The challenge to the lawfulness of paragraph 276ADE and Section EX.1 is dismissed. The distinct challenge to the lawfulness of the decision in the Claimant's particular case is also dismissed.
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