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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> PETITION OF MS v. SECRETARY OF STATE FOR THE HOME DEPARTMENT FOR JUDICIAL REVIEW [2013] ScotCS CSIH_52 (11 June 2013)
URL: http://www.bailii.org/scot/cases/ScotCS/2013/2013CSIH52.html
Cite as: [2013] CSIH 52, [2013] ScotCS CSIH_52

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord Mackay of Drumadoon

Lord Bracadale

Lord Drummond Young

 

 

[2013] CSIH 52

P1053/12

 

OPINION OF THE COURT

 

delivered by LORD DRUMMOND YOUNG

 

in the petition of

 

by

 

M S

Petitioner;

 

against

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondents:

 

for

 

Judicial review of a decision by the respondent dated 2 October 2012 to remove the petitioner from the United Kingdom to India and of decisions of the respondent dated 9 October 2012 and 21 November 2012

 

_______________

 

 

Appellant: Bovey, QC, Forrest; Drummond Miller LLP for Steen, Bali, McSherry, Solicitors, Glasgow

Respondents: Lindsay, QC, Pirie; Office of the Advocate General

 

11 June 2013

The background to the petition

[1] The petitioner is a national of India, born in 1976. The respondent is the Home Secretary and is responsible for the enforcement of immigration and nationality legislation and related provisions. The petitioner appears to have entered the United Kingdom illegally in 2001, using a British passport which did not belong to him. He has not been granted leave to enter or leave to remain in the United Kingdom. During 2009 he was found by immigration officials working in a restaurant and was detained as a suspected immigration offender and thereafter interviewed. He was then released from custody, but was directed to report regularly to immigration officials. On 17 August 2009 his solicitors submitted a claim that any attempt to remove him from the United Kingdom would contravene his right to private and family life under article 8 of the European Convention on Human Rights. It was submitted that the petitioner had been living in the United Kingdom for 10 years and had established himself in the community and integrated himself into life in United Kingdom. He was financially self‑sufficient, and had been studying English and food hygiene at college. That claim was rejected by a decision made on behalf of the respondent on 12 December 2011. The petitioner appealed to the first‑tier tribunal, but his appeal was rejected on 21 February 2012. Permission to appeal to the upper tribunal was refused on 9 March 2012, and the petitioner's rights of appeal were exhausted on 21 March 2012.


[2]
On 1 May 2012 the petitioner was arrested and detained at Dungavel Immigration Removal Centre, Strathaven. On 2 October 2012 the Home Secretary issued a decision directing that the petitioner be removed from United Kingdom on 12 October 2012. The following day solicitors acting for the petitioner wrote to the United Kingdom Border Agency submitting that certain further information amounted to a fresh claim for breach of the petitioner's human rights under article 8 of the European Convention on Human Rights. That claim was rejected by letter dated 9 October 2012 and a subsequent letter dated 21 November 2012; the second of those letters appears to have been written following the presentation of this petition to the court. The date set for the petitioner's removal was cancelled.


[3]
In the present petition the petitioner seeks reduction of the decision of 2 October 2012 directing his removal from the United Kingdom and reduction of the two subsequent decisions intimated by the letters dated 9 October and 21 November 2012. The fundamental contention made by the petitioner is that he has formed a relationship with a S K and her daughter, who are resident in Glasgow, and that accordingly his removal from the United Kingdom would contravene his right to private and family life under article 8 of the European Convention on Human Rights.

 

The new Immigration Rules
[4] That contention is made against the background of new Immigration Rules, which came into force on 9 July 2012. Certain of the provisions of those rules are important for an understanding of the claim and its treatment by the Home Secretary's officials, and it is appropriate to summarize these at this stage. The requirements that must be met under the new rules by a person who has applied for leave to remain in the United Kingdom on the basis of his or her private life are set out in rule 276ADE. The requirements under that rule that are material in the present case are that the applicant does not fall for refusal under a range of grounds set out in appendix FM and that he or she, if over the age of 25 years, should have lived continuously in the United Kingdom for at least 20 years. Rule 397 deals with deportation. It provides:

"A deportation order will not be made if the person's removal pursuant to the order would be contrary to the UK's obligations under the Refugee Convention or the Human Rights Convention [the UN Convention of 1950 dealing with the status of refugees and the European Convention on Human Rights]. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances of the public interest in deportation is outweighed".

 


[5]
Appendix FM to the new Immigration Rules is intended to set out the provisions relevant to those seeking to enter or remain in the United Kingdom on the basis of their family life with a person who is a British citizen or is settled in United Kingdom: paragraph GEN.1.1. It is thus clearly directed at the rights that are protected by article 8 of the European Convention on Human Rights. Appendix FM contains detailed provisions specifying the requirements for any person who seeks to enter or remain on the basis of family life. The provisions that are potentially material to the petitioner's claim are those relating to relationship requirements and immigration status; it is not suggested that the other requirements, which relate principally to criminal offences, health, failure to co-operate with the immigration authorities, financial resources and ability to speak English, have any application to the petitioner. Relationship requirements are dealt with in paragraphs E-LTRP.1.2-1.11. In summary, these require that the applicant's partner must be a British citizen in the United Kingdom or present and settled in the United Kingdom (or in the United Kingdom with refugee leave or as a person with humanitarian protection); the applicant and the partner must both be aged 18 or over; they must have met in person; the relationship between them must be genuine and subsisting; and they must intend to live together permanently in the United Kingdom. Other requirements exist, but they are not relevant to the petitioner's claim.


[6]
Immigration status is dealt with in paragraphs E-LTRP.2.1 and 2.2. The first of these requires that the applicant should not be in the United Kingdom as a visitor, with valid leave granted for a period of 6 months or less, or on temporary admission. Paragraph E-LTRP 2.2 provides as follows:

"The applicant must not be in the UK in breach of the immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1 applies".

 

Section EX deals with certain exceptions. Paragraph EX.1 is in the following terms:

"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".

 


[7]
It should also be noted that the Home Secretary has power to grant leave to enter or remain in the United Kingdom outside the Immigration Rules. This is of the nature of a residual discretion to deal with deserving cases. The Home Secretary has issued instructions to officials as to the approach to be applied in deciding whether to grant leave outside the rules. Paragraph 3.2.7d of these instructions in its current form is in the following terms:

"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".

 

A number of factors that may be relevant are then stated; these include the question whether the applicant's immigration status was precarious at the time when he or she began a relationship in the United Kingdom. The definition of exceptional circumstances is designed to deal with cases where a hardship resulting from removal from United Kingdom would be disproportionate to the objective of maintaining consistent control over immigration policy; in such a case removal would amount to a breach of article 8. The definition has been described as giving

"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": R (Nagre) v Home Secretary, [2013] EWHC 720 (Admin), at paragraph 14 per Sales J.

 

The claim made by the petitioner and the Home Secretary's response
[8] On behalf of the petitioner it is alleged that the Home Secretary, acting through officials, erred in law in issuing the removal directions and the subsequent decisions rejecting the petitioner's claim that any attempt to remove him from United Kingdom would infringe his rights under article 8 of the European Convention on Human Rights. In support of his article 8 claim, the petitioner avers that in about August 2010 he met S K. She is a citizen of the United Kingdom and the mother

of two children, a boy aged 12 and a girl aged 41/2. Divorce proceedings between her and her husband are being heard in Glasgow Sheriff Court. So far as the children are concerned, the agreed arrangement is that she has custody of the daughter and her husband has custody of the son. We were informed that the son visits his mother during the week. The petitioner avers that he and S K had formed a relationship, notwithstanding a threat from her husband that he would kill any other man with whom she might enter into a relationship. He further avers that, notwithstanding the threat, he, S K and her daughter have established and are developing a family and private life together.


[9] Details of the relationship are set out in the letter of 3 October 2012 from the petitioner's solicitors, in the following terms:

"Our client has been and still is in a relationship with a British citizen, S K. 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 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".

 


[10]
The statutory declaration given by S K gives the history of her family circumstances and her relationship with the petitioner. She states that she met the petitioner in August 2010 and that their relationship became serious in December 2011. The petitioner lives with S K and her daughter from Fridays to Mondays. The statutory declaration further states that the petitioner gets on well with the daughter and plays with her, taking her to the park and to nursery. The daughter is fond of the petitioner. S K's son goes to his father's house at the weekend. She did not wish her husband to become aware of her relationship with the petitioner because of the threats that he had made to kill any man who had a relationship with her. S K further states that she was aware of the petitioner's immigration status before their relationship began, and she was aware of court proceedings regarding his immigration status. She begged him not to mention her as she was afraid of the consequences with her husband. Consequently the petitioner had not mentioned her initially. S K further states that, if she were to attempt to continue family life in India, she would have difficulty in seeing her son. She had been a United Kingdom resident since 1999, and her life is here with her son and daughter.


[11]
The Home Secretary's response to the claim made in the letter of 3 October 2012 is contained in the letters dated 9 October 2012 and 21 November 2012. The petitioner's original claim had been determined by the first‑tier immigration tribunal; consequently the question addressed in those letters was whether the submissions made in the claim of 3 October amounted to a "fresh claim" in terms of rule 353 of the Immigration Rules, in the sense that, when taken together with material previously considered, the new submission created a realistic prospect of success before an immigration judge. That claim was rejected by the Home Secretary's officials. In the two letters, a number of reasons were put forward to justify that result. First, under section S-LTR of the Immigration Rules, dealing with suitability requirements, the petitioner had entered the United Kingdom using a passport that did not belong to him and had made no attempt to regularize his stay in the United Kingdom until August 2009. Secondly, under section E-LTRP.1 of appendix FM, dealing with relationships with persons in the United Kingdom, the petitioner had failed to provide any documentary evidence to confirm that his relationship with S K was in fact subsisting; furthermore the relationship was said to have existed before the hearing before the first-tier tribunal in February 2012, but it had not been brought to the attention of the immigration judge. Thirdly, under paragraph EX1 of appendix FM to the rules, which deals with relationships with partners where there are insurmountable obstacles to family life with the partner outside the United Kingdom, nothing suggested that family life with S K would be impossible outside the United Kingdom. Fourthly, in relation to article 8 of the Convention, regard was had to paragraph 276ADE of the rules, dealing with private life, and it was concluded that the petitioner, who had not resided in the United Kingdom for at least 20 years and was over the age of 18 years, did not qualify under that provision.


[12]
Further possible grounds were considered and rejected in the second letter, that of 21 November 2012. First, reference was made to the definition of "partner" in appendix FM of the Immigration Rules. On the basis of the information provided, the petitioner and S K were not married and had not been living together in a relationship akin to marriage for at least two years. Consequently it was not accepted that they enjoyed a family life together, nor that they were in a relationship akin to marriage; the relationship was merely that of "boyfriend" and "girlfriend". Moreover, the evidence did not establish that they had lived together for two years. It was stated that in view of the evidence there was no realistic prospect that an immigration judge might come to a different conclusion. Secondly, consideration was given to whether the petitioner might qualify for leave to remain as the parent of a British citizen child, in view of his relationship with S K's daughter. Under reference to paragraph E-LTRP of appendix FM, it was stated that the petitioner was unable to show that he was taking an active role in the child's upbringing, and was in the United Kingdom on a temporary admission basis. The child's best interests had been taken into account, but it was considered that the upset that might be caused to her by the petitioner's return to India would not damage her best interests to such a degree as to be unlawful.


[13]
Thirdly, in relation to paragraph EX1 (considered specifically in the earlier letter), there was no evidence to establish that S K could be considered the petitioner's partner for the purposes of appendix FM and there was no evidence to suggest a genuine parental relationship with her daughter. Once again, it was stated that in view of the absence of evidence of a family unit, there was in the writer's opinion no realistic prospect of an immigration judge's coming to a different conclusion. Fourthly, the petitioner's private life was considered against paragraph 276ADE of the Immigration Rules (considered in the earlier letter). It was stated that the requirements of that provision were not satisfied, as the petitioner had not been resident in the United Kingdom for 20 years, was not under the age of 18 or between the ages of 18 and 25, and it could not be said that he had no ties with his home country as he spoke Punjabi and had family in India. The conclusion expressed was that, although it might be accepted that the petitioner had formed a private life in United Kingdom, including the relationships with S K and her daughter, and that that private life would be disrupted by return to India, these were not considered to be exceptional circumstances. Consequently the petitioner was unable to meet the requirements of the rules and there was no realistic prospect that an immigration judge might reach a different conclusion.

 

The Lord Ordinary's decision

[14]
The petition proceeded to a first hearing before the Lord Ordinary, who rejected the challenge to the Home Secretary's decision and dismissed the petition. The Lord Ordinary reviewed the present Immigration Rules. He identified their source in sections 1 and 3 of the Immigration Act 1971, and pointed out that in the course of their frequent amendments they have become very extensive, detailed, tightly drawn and circumstantial. They indicate the principles according to which the Home Secretary intends for the time being to exercise her statutory executive power, created by the Immigration Act 1971, to control immigration. The Home Secretary is, however, bound by the requirements of article 8 of the European Convention on Human Rights, protecting the right to private and family life of an applicant for immigration. Extensive changes to the Immigration Rules in respect of family migration were promulgated in July 2012, and it had been indicated by the Home Secretary that these were intended to state the factors that would carry weight for or against an article 8 claim.


[15]
The Lord Ordinary identified the primary question of principle that he required to decide as whether the changes in the Immigration Rules effected by the Home Secretary in July 2012 had resulted in a material change in the way in which a decision on matters such as leave to remain could lawfully be made. It seemed clear that the Home Secretary's intention had been to bring the requirements of article 8 within the Immigration Rules. More specifically, if an applicant fails to qualify under the new rules, must a decision maker still come to an independent view as to whether article 8 has been complied with by going through the process described in R (Razgar) v Home Secretary, [2004] 2 AC 368, at paragraph 17, rather than simply asking whether the applicant's circumstances are exceptional? The underlying objective in changing the Immigration Rules was to affirm and strengthen a rule‑based system of immigration control, with fewer grants of discretionary leave arising from concerns over interference with private and family life. While, like any set of rules, the Immigration Rules must provide for the exceptional case if it is to avoid unjust or even ridiculous outcomes, the Home Secretary's objective could only be regarded as a rational approach to the exercise of the power of controlling entry to the United Kingdom. It was consistent with the provisions of sections 1(4) and 3(2) of the 1971 Act and with the Human Rights Act 1998 and Convention rights. The balance between private right and state or public interest in the immigration field was in general a question of policy, and the changes in the rules in the field of family migration were intended to fill a vacuum as to the relevant policy in a manner that was generally compatible with article 8. Moreover, the new rules had been the subject of debates in both Houses of Parliament. That indicated 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 remain requires to be tempered by the need to make proportionate decisions in individual cases.


[16] The Lord Ordinary expressed the opinion that questions of proportionality arising under article 8, while fact‑sensitive, could be accommodated within a system of rules as long as provision was made for exceptional cases. Thus the views of the Home Secretary could not be regarded as determinative of proportionality, which was ultimately a matter for judicial control, but they should still be given substantial weight, particularly when they had been endorsed by Parliament. When the new rules dealing with family migration were considered in the light of earlier judicial statements of principle, particularly those of the Court of Appeal and House of Lords in Huang v Home Secretary, [2006] QB 2; [2007] 2 AC 167, the numbers who might be expected to succeed in a claim made under article 8 outside the new rules was likely to be a very small minority indeed. Where the rules had been drafted with a view to avoiding contravention of article 8 and the draft had been approved by Parliament, a case which succeeded on article 8 after failing in terms of the rules would have to be described as exceptional.


[17]
The Lord Ordinary further gave consideration to the recent decision of the upper tribunal in MF (Nigeria) v Home Secretary, [2012] UKUT 00393 (IAC), where it had been held that, notwithstanding the new rules, it remained necessary to apply a two-stage test, applying the rules and then separately considering the application of article 8. The Lord Ordinary considered that MF was distinguishable on the facts, as it involved the removal of a foreign criminal. Moreover, even if the approach in MF were correct, the present decision had been made on the basis that the petitioner's circumstances did not come within the Immigration Rules and were not exceptional, and that there was accordingly no realistic prospect that an immigration judge might come to a different conclusion. That did not disclose any error of law at least in a case where the relevant rules were accepted as being article 8 specific and no point was taken as to the applicability of the case law of the European Court of Human Rights. The facts of the present case were not unusual, and the only issue was whether removal would be disproportionate. Furthermore, even if the 2‑stage test were a legal requirement, full weight would require to be given to the public interest as identified by the Home Secretary and Parliament, and given the fragile nature of the petitioner's claim to private life in United Kingdom there could not be said to be a realistic prospect that an immigration judge would find his removal to be in contravention of article 8.

 

The relationship between article 8 and the new Immigration Rules

[18]
The primary legal issue arising in this case is the extent to which the Home Secretary's representative was obliged, after considering whether the petitioner's claim fell within the Immigration Rules, to go on to consider separately whether it was also in compliance with article 8, and if so how far such consideration must extend. On this issue we agree with the decision of the Lord Ordinary that the consideration given to article 8 issues by the writers of the two letters of 9 October and 21 November 2012 was fully adequate, and that the conclusion in those letters that there was no reasonable prospect that an immigration judge might decide otherwise was correct. Before stating our reasons for this conclusion, it is appropriate that we should first consider the status of the new rules.

 

The constitutional status of the new rules
[19] The Immigration Rules are a statement by the Home Secretary as to how her powers under section 3 of the Immigration Act 1971 will be exercised: R (Munir) v Home Secretary, [2012] 1 WLR 2192, at paragraphs 37‑39 per Lord Dyson. It is accepted, however, that they may be relied on by applicants for entry to or leave to remain in the United Kingdom, and further that the application of the rules in individual cases is subject to the constraints of the European Convention on Human Rights. Article 8 of the Convention is of particular significance. It provides as follows:

"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"

 

Earlier forms of the Immigration Rules did not address the requirements of article 8 directly. Nevertheless, it was very apparent that the right to private and family life was frequently relied on in immigration applications. Consequently it was decided by the Home Secretary that the rules should be amended so that they addressed more explicitly the factors that are relevant to a claim to remain in the United Kingdom based on article 8 rights. This, it was hoped, would produce greater clarity, consistency and transparency in the consideration of article 8 rights by immigration officials: R (Nagre) v Home Secretary, supra, at paragraph 8. It was acknowledged, however, that exceptional cases would exist, which should be dealt with by the mechanism of leave outside the rules (see paragraph [7] above): ibid.


[20]
A draft of the proposed new rules was the subject of consultation. The document amending the rules, the Statement of Changes in Immigration Rules, (HC 194) was laid before Parliament. It was the subject of debate in the House of Commons on 19 June 2012, when a motion on the overall approach to article 8 that is reflected in the new rules was unanimously agreed. The Statement of Changes was debated in the House of Lords on 23 October 2012. The rules were made formally under the negative resolution procedure, as prescribed in the Immigration Act 1971, and came into force on 9 July 2012. The Lord Ordinary describes the objective of changing the rules as

"to affirm and strengthen, in the area of family migration, a rules‑based system of immigration control based on what [the Home Secretary] described in Parliament as 'a consistent, fair and transparent decision-making process'... with fewer grants of discretionary leave arising from concerns over interference with private and family life": paragraph [25].

 

We agree that that is the clear purpose of the changes to the rules.

 


[21]
There has been some debate about the precise status of the new rules: see R (Nagre) v Home Secretary, supra, at paragraphs 25 et seq. The rules are not a statute but merely a statement by the executive of how it intends to exercise powers conferred by statute. Consequently the application of the rules in individual cases is potentially subject to judicial review. Nevertheless, the new rules have been debated in Parliament, which confers a certain degree of democratic approval. Moreover, they are instructions put forward by the minister in a democratically elected government who is charged by statute with the administration of the immigration system. To that extent, too, the rules can be said to result from democratic processes. These are factors which must be given some weight when a court considers the application of the rules, although they cannot be conclusive because the rules do not have the force of statute.


[22]
In this connection, it is pertinent to note that under the case law of the European Court of Human Rights states are given a margin of appreciation as to how they respect Convention rights. That is of course a matter that affects the rights and duties of states under the Convention, and technically falls under international law. A corresponding element of discretion exists in domestic law, however. In effect, this amounts in domestic law to a power to give effect to Convention rights in any manner that respects the fundamental objectives of the Convention: see: R (Nagre) v Home Secretary, supra, at paragraph 26; R v DPP, ex p. Kebilene, [2000] 2 AC 326, at 381; R (S) v Secretary of State for Justice, [2012] EWHC 1810 (Admin), at paragraph 54. The existence of this power means that the acts of the Home Secretary and her officials in immigration cases should not be assessed too critically in the light of statements made in Strasbourg case law; the British and other national executives have a considerable discretionary power as to how they implement the Convention in individual cases, and judicial statements made in other cases in different circumstances will inevitably be of limited relevance.

 

The practical application of the new rules
[23] The new rules do not provide for every possible case where article 8 rights might be asserted; indeed, in view of the far-reaching impact of article 8 and the fundamental nature of family life in human existence, it is impossible to believe that they could ever do so. This is acknowledged by the Home Secretary, as her counsel made clear in the course of the hearing of the present petition. Consequently cases will arise where the Home Secretary, acting through her officials, is obliged to consider whether leave should be granted outside the rules in order to respect particular article 8 rights. That obligation can be enforced by judicial review. In this connection, we agree with observations of Sales J in R (Nagre) v Home Secretary, supra, at paragraph 27:

"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 the amendment, and it could not be suggested that they were unlawful as a result"

 

We would respectfully agree with those observations.


[24]
Before the amendment of the Immigration Rules, the general approach to article 8 cases was that set out by Lord Bingham in R (Razgar) v Home Secretary, [2004] 2 AC 368, at paragraph [17], and Huang v Home Secretary, [2007] 2 AC 167, at paragraphs [5]‑[18]. In the former case it was indicated that the court must ask whether the proposed removal would be an interference with the applicant's right to respect for private or family life of such gravity as potentially to engage article 8. If so, the critical question was whether such interference was "proportionate to the legitimate public end sought to be achieved". In the latter case, it was stated that an applicant who failed under the rules might still have a valid claim under article 8 to remain in the United Kingdom, and in that event the obligation of the Home Secretary to act in a way that accords with Convention rights can be enforced by judicial review. Following the introduction of the new rules, it can be expected that the cases where article 8 rights are asserted will be fewer than previously. Nevertheless, we consider that the legal position is correctly stated by Sales J in R (Nagre) v Home Secretary, supra, at paragraphs 28 and 29:

"As appears from the new guidance issued by the Secretary of State in relation to exercise of a residual discretion to grant leave to remain outside the Rules [paragraph [7] above], 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....

 

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 recognized under the new rules to require the grant of such leave".

 


[25]
The continuing relevance of article 8 in cases falling under the new rules has further been considered in two recent Upper Tribunal cases, MF (Nigeria) v Home Secretary, supra, and Home Secretary v Izuazu, [2013] UKUT 45 (IAC). In MF the tribunal concluded that the method of assessment followed by tribunals and by the courts "must ordinarily remain a two‑stage one", based on the new rules and on article 8: paragraphs 32, 41. The reason given was that the new rules did not and could not replace binding law; the tribunal's duties under primary legislation were no less than previously, and Convention rights had to be taken into account under the Human Rights Act in the light of the case law of the European Court of Human Rights. This approach was endorsed in Izuazu, where a tribunal, including Blake J and Lord Bannatyne, stated their understanding of the law as follows:

"40. We accordingly further endorse the Upper Tribunal's observation in MF 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. Whether 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 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".

 


[26] In R (Nagre) v Home Secretary, supra, Sales J indicated his general agreement with that statement of the law, but added (at paragraph 30)

"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 clear that 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".

 

We agree entirely with that qualification. It seems to us that the new rules are likely to deal adequately with the great majority of cases where the article 8 right to private or family life is put in issue. In that event, there is no need to go on to consider article 8 separately, using the type of analysis set out in R (Razgar) v Home Secretary, supra.


[27]
In some cases, however, the new rules may not adequately cover an applicant's article 8 right to private or family life. At one time, following observations of Lord Bingham in R (Razgar) v Home Secretary, supra, at paragraph 20, it was thought that the test for cases where the article 8 right required independent consideration was one of exceptionality; Lord Bingham had indicated that "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". That test was departed from to some extent in Huang v Home Secretary, supra, however: Lord Bingham at paragraph 20. It seems to us that the problem with a test of exceptionality is that the word "exceptional" is ambiguous. In its most literal meaning, the word signifies that a norm exists and that the case under consideration is an exception to that norm. If used in that sense, the test would require the decision-maker to treat the new rules as setting the norm and consider whether there was something in the particular case that took it outside the scope and intent of those rules. The more common usage of "exceptional", however, is "unusual" or "almost unique" (Chambers' Dictionary). That is not an adequate criterion for determining when the new rules cover a case adequately and when they do not. For that reason it seems to us that the test of exceptionality should not be used.


[28]
As to the test that should be used, in R (Nagre) v Home Secretary, supra, Sales J indicated at paragraph 49 that he had concern about the use of the label "exceptional cases" in the guidance given by the Home Secretary to describe the area in which her residual discretion to grant leave outside the rules operates. He thought that busy, hard‑pressed officials might refer only to the label and not keep in mind the proper notion of exceptional cases. He continued

"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"

 

We agree entirely that officials charged with making immigration decisions should have regard to the substance of the policy guidance that is given in relation to leave outside the rules; that is the guidance referred to in paragraph [7] above. It can be expected that the new rules will cover most cases where an applicant seeks to rely on his or her Convention right to private and family life. If an official or tribunal or court is asked to consider leave outside the rules, an applicant must put forward a reason for doing so. Such a reason will usually consist of circumstances "in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate" (in the words of paragraph 3.2.7d of the Home Secretary's guidance). We are of opinion that in considering whether such circumstances have been demonstrated by an applicant, the criterion that should be used is that of a "good arguable case", as suggested by Sales J in the passage quoted above. The decision maker should examine the circumstances put forward by the applicant and determine whether they disclose a good arguable case that the rules would produce an unfair or disproportionate result such that the applicant's article 8 rights would be infringed. It is only if that test is satisfied that there is any need to go on to consider the application of article 8 in detail. Furthermore, as Sales J indicates, those writing decision letters should demonstrate that they have indeed addressed this test.


[29]
Before going on to consider the facts of the present case, we should mention that in R (Nagre) v Home Secretary, supra, Sales J indicates (at paragraph 36) that

"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 rule new rules do not do that in all cases by themselves does not render them unlawful".

 

We agree entirely with those comments. Sales J then gives detailed consideration (at paragraphs 37‑43) to a contention that section EX.1 of the rules left a wide gap between the new rules and the Strasbourg and domestic case law on article 8. He considers a number of cases, including the important Strasbourg decision in Rodrigues da Silva and Hoogkammer v Netherlands, (2007) 44 EHRR 34, and indicates that the approach in the Strasbourg case law is that, where family life is established when the immigration status of the claimant is precarious, removal will be disproportionate only in exceptional cases. On that basis, he considered that the gap between the test for leave to remain under section EX.1 and the result obtained by direct consideration of article 8 in the class of cases involving precarious family life was likely to be small. We are in agreement with that view.

 

Conclusion
[30] In summary, therefore, we are of opinion that in all cases where the right to private and family life under article 8 is invoked the first stage must be to consider the application of the Immigration Rules. The new rules are designed to cover the considerations that are relevant to an article 8 claim in a normal case. The fundamental issue raised by article 8 is an assessment of on one hand the requirements of an effective immigration policy, including the enforcement of that policy by removal from the United Kingdom, and on the other hand the right of the individual concerned to private or family life. That exercise involves an assessment of proportionality. In most cases, the new rules will ensure that assessment is properly carried out. In some cases, however, the rules will not produce a fair result that accords with article 8. In those cases the Home Secretary, acting through immigration officials, will need to consider whether leave should be granted outside the rules. That will require an assessment of the precise circumstances of the individual case, taking account of all factors that are relevant. These will include factors mentioned in paragraph 3.2.7d of the Home Secretary's instructions and also any other factors that may be relevant to the particular assessment of proportionality that is being undertaken. The relevant factors will also include those mentioned in the rules themselves, notably in rules 276ADE‑276DH, and in appendix FM, including section EX of that appendix. The purpose of those provisions is to set out the factors that normally apply to the assessment of article 8 rights in an immigration context; consequently both the terms of those provisions and the underlying policy that can be discerned from those terms are of importance. They must, of course, be weighed against the other special considerations that apply in the particular case. Before it is necessary to embark on that second‑stage exercise, however, the application for leave to enter or remain must demonstrate a good arguable case that leave should be granted outside the rules: that a distinct assessment of proportionality should be made to determine whether removal would infringe the applicant's article 8 rights. If that is not demonstrated, it can be assumed that the applicant's article 8 rights will be adequately dealt with by applying the new rules. Finally, the test of exceptionality should not be used any longer; instead, decision‑makers should focus on the question of whether the applicant has shown a good arguable case that his or her application should be dealt with outside the rules.

 

The present case
[31] As we have indicated, the Lord Ordinary rejected the petitioner's challenge to the Home Secretary's decisions of 9 October and 21 November 2012 in which the petitioner's application for leave to remain was refused on the basis that there was no reasonable prospect of success before an immigration judge; the removal directions had of course been countermanded. In our opinion he was right to do so. In the first place, it is clear that the petitioner did not qualify for leave to remain under the Immigration Rules other than section EX.1 of appendix FM. In the first letter specific consideration was given to section S‑LTR of appendix FM, dealing with suitability requirements, and to section E‑LTRP.1, dealing with relationships with persons in the United Kingdom. Paragraph EX.1, dealing with relationships where there were insurmountable obstacles to family life outside the United Kingdom, was also considered, and it was concluded that there were no insurmountable barriers to life with S K outside the United Kingdom. Finally, in relation to article 8, paragraph 276ADE of the Immigration Rules was considered, and it was concluded that the requirements of that paragraph were not satisfied because the petitioner had not been in the United Kingdom for at least 20 years. In the second letter, consideration was given to the petitioner's relationship with S K in the light of the definition of "partner" in appendix FM, to his relationship with S K's daughter in the light of paragraph E‑LTRP of appendix FM, to paragraph EX.1 in the light of the information available about the relationship with S K and her daughter, and once again to paragraph 276ADE. Apart from section S‑LTR, all of those provisions are directed towards consideration of an applicant's personal and family circumstances. For the reasons already stated, they are provisions that are designed to take account of the impact of article 8.


[32]
On that basis, consideration has inevitably been given in some detail to the petitioner's article 8 rights, and in particular to his personal and family circumstances in relation to S K and her daughter. The petitioner formed a relationship with S K fairly recently, in about December 2011. At the time both the petitioner and S K were well aware that the petitioner's immigration status was precarious. On the face of the petitioner's claim, there is nothing to suggest any aspect of his private and family life that is not fully taken into account to the application of the foregoing provisions of the Immigration Rules. Thus it is impossible to suggest that he has presented a good arguable case that there should be an independent evaluation of his article 8 rights, to consider granting leave outside the rules. It seems to us that in the absence of any good arguable case it cannot be thought that an immigration judge might reach any different conclusion. For that reason the claim must be rejected. That was the view reached by the Lord Ordinary, and we are in complete agreement.


[33]
Certain further matters were relied on in argument by the petitioner's counsel. First, S K's two children live separately, the daughter with her and the son with her husband. Consequently contact would be lost between S K and her son and between the children if she were to move to India with the petitioner. That is no doubt so, but this is a very common feature of cases where removal is ordered. For that reason we consider that this factor does not in any way indicate a good arguable case that leave should be granted outside the rules. Secondly, counsel referred to the fact that the petitioner and  S K had known each other since August 2010 and had been in a serious relationship since December 2011. Nevertheless, that is not a particularly long relationship, and in our view it is plainly taken into account under the provisions of the Immigration Rules.


[34]
Thirdly, counsel referred to the fact that the petitioner only lives with S K from Friday to Monday because that is the period when her son is away from the house, living with his father. During the remainder of the week the son lives with S K, and she and the petitioner consider it important that her husband should not know of the relationship between them: if the petitioner were in the house when the son is there her husband would inevitably learn of the relationship. On this, we observe that the relationship between the petitioner and S K appears to be of a distinctly precarious nature; it seems that it is impossible for the two of them to live together all the time because of the threats made by S K's husband. Far from supporting a case based on the right to family life, this tends to indicate that as matters stand a normal family life is quite impossible. Thus the very foundation for an article 8 claim is undermined. Moreover, throughout the relationship both the petitioner and S K have been aware of the petitioner's precarious immigration status, which emphasizes the distinctly weak basis for any claim to family life sufficient to overcome the public interest in maintaining proper immigration control. Fourthly, counsel stated that the petitioner had only invoked article 8 at a fairly late stage in his application for leave to remain because S K had begged him not to reveal the relationship because of the threats from her husband. Counsel described this as "a highly unusual and alarming situation". That last observation may be correct, but once again this indicates the precarious nature of the relationship between the petitioner and S K; there is nothing in the nature of normal family life. Fifthly, counsel stated that, if S K and her daughter were to move to India with the petitioner, they would face difficulties there. It seems to us that that is a very typical feature of removal. S K and her daughter are from the same religious background as the petitioner, and thus the difficulties of relocation would not be in any way unusual. Consequently this factor is taken into account through application of the Immigration Rules.


[35]
In these circumstances we are of opinion that the particular features of the petitioner's claim based on the right to private and family life under article 8 are fully taken into account by the provisions of the new Immigration Rules. No criticism was made of the way in which the rules were applied by the writers of the letters of 9 October and 21 November 2012; the argument for the petitioner was rather that in view of the particular features of his private and family circumstances described in the two preceding paragraphs he should have been considered for leave outside the rules. In our opinion, however, the factors on which he relied do not disclose a good arguable case for granting leave outside the rules.


[36]
Counsel for the petitioner also suggested that an immigration judge might reach a different conclusion. The evidence of the parties might impress the judge as to the nature of the relationship. In particular, an immigration judge might take a different view of the highly unusual circumstances in which the petitioner and S K lived. The judge might also be impressed by the petitioner's sharing responsibility for the care of the daughter, and by the impractability of continuing the relationship abroad. In our opinion none of these factors discloses a good arguable case, and on that basis reference to an immigration judge would be pointless. The Lord Ordinary did not have the benefit of being referred to the test of a good arguable case as the criterion for proceeding to consider leave outside the rules, the test having been formulated by Sales J after the Lord Ordinary's decision. Nevertheless the approach that was taken by the Lord Ordinary appears to us to be broadly similar. He referred to the fact that the petitioner's circumstances did not come within the Immigration Rules and were not exceptional, and that there was no realistic prospect that an immigration judge might come to a different conclusion. In our view the last of these considerations, that there was no realistic prospect that an immigration judge might consider otherwise, plainly takes in the ambit of the test that we have adopted. Consequently we are unable to fault the Lord Ordinary's conclusion.


[37]
Counsel for the Home Secretary further submitted that, even if the letters of 9 October and 21 November 2012 did disclose an error of law, that error was not material. On this argument, the Lord Ordinary states (at paragraph [34] of his opinion) that, given the fragile nature of the petitioner's claim to private life in the United Kingdom, there simply could not be said to be a realistic prospect that an immigration judge might find his removal to be a contravention of article 8. We agree with that observation. Even if the test addressed by the writers of the two letters and by the Lord Ordinary was one of exceptionality, we do not think that this can make any difference to the result. In both cases, the conclusion was that there was no realistic prospect that an immigration judge might decide differently. That is a view that we entirely endorse.


[38]
For the foregoing reasons we will refuse the reclaiming motion.


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