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||Neutral Citation Number:  EWCA Civ 440
||Case No: C2/2014/1624, C2/2014/2437, C2/2014/4100
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION and ASYLUM CHAMBER)
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LADY JUSTICE GLOSTER
LORD JUSTICE SALES
|| The Queen on application of Agyarko
The Queen on application of Evans
The Queen on application of Ikuga
||- and -
||The Secretary of State for the Home Department
Mr Parminder Saini (instructed by Nag Law) for Mrs Agyarko, (instructed via Direct Public Access) for Mrs Evans and (instructed by Greenland Lawyers) for Mrs Ikuga
Mr Neil Sheldon (instructed by The Treasury Solicitor) for the Respondent
Hearing dates : 21-22 April 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
LORD JUSTICE SALES :
- This is the judgment on the hearing of substantive appeals in the cases of Mrs Agyarko and Mrs Ikuga. Later in the judgment, I also set out the reasons for the rulings which were made in the course of the hearing (with reasons to follow) to refuse permission to appeal on two further grounds in Mrs Ikuga's case and to refuse permission to appeal in relation to the refusal of an extension of time to bring a judicial review claim in the case of Mrs Evans.
- Mrs Agyarko and Mrs Ikuga are both immigrants who have unlawfully remained in the United Kingdom as overstayers after their limited leave to enter had expired. In the period of their unlawful residence here, they each formed relationships with British citizens. Mrs Agyarko also got married. They then applied to the Secretary of State for leave to remain relying, in particular, on their rights under the Human Rights Act 1998 ("HRA") read with Article 8 of the European Convention on Human Rights (respect for family life and private life). They maintained that if they were required to leave the United Kingdom, their family life with their husband or partner would be improperly disrupted.
- The Secretary of State refused their applications. In her assessment in each case, there were no insurmountable obstacles to family life with their husbands continuing outside the United Kingdom, so she refused their applications under Appendix FM (family members) to the Immigration Rules ("the Rules"). She also decided that there were no exceptional circumstances in either of their cases to warrant the grant of leave to remain outside the Rules, by virtue of their rights under Article 8.
- Mrs Agyarko and Mrs Ikuga commenced judicial review proceedings in proper time to challenge the Secretary of State's decisions. Their claims were allocated to the Upper Tribunal (Immigration and Asylum Chamber). In each case, the Upper Tribunal refused to grant permission to seek judicial review.
- They now appeal to this court. Sir Stephen Sedley granted Mrs Agyarko permission to appeal upon consideration of the papers. We heard an oral application by Mr Saini on behalf of Mrs Ikuga for permission to appeal, granted her permission to appeal in the course of the hearing and heard her substantive appeal.
The legal framework
- There was common ground regarding the basic legal framework relevant to these appeals.
- An entitlement to leave to remain may arise under section EX of Appendix FM. Appendix FM came into effect in July 2012. It includes the part of the Rules which governs the grant of leave to remain to persons who are not British citizens on the basis of family ties with persons in the United Kingdom.
- At the time of the decisions in these cases, section EX.1 provided in relevant part as follows:
"This paragraph applies if
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen
and there are insurmountable obstacles to family life with that partner continuing outside the UK."
"Partner" in this context includes a spouse.
- Appendix FM also includes the part of the Rules which govern the grant of leave to enter to persons who are not British citizens who apply to come to the United Kingdom on the basis of family ties with persons here. Appendix FM sets out a range of conditions which have to be satisfied before an entitlement to leave to enter arises under the Rules. These include, for example, a requirement that the person in the United Kingdom who is sponsoring an application for leave to enter should have a minimum gross annual income of £18,600 p.a.: see Secretary of State for the Home Department v SS (Congo)  EWCA Civ 387 for discussion of this requirement.
- If an applicant for leave to remain does not have an entitlement under the Rules, the Secretary of State has a residual discretion whether to grant such leave outside the Rules: see, for example, SS (Congo), para. . Under section 6(1) of the HRA, she will be obliged to grant leave outside the Rules if, notwithstanding that their case is not within the Rules, a person has a good claim to be entitled to remain by virtue of Article 8 or any other Convention right: ibid..
Mrs Agyarko's appeal
- Mrs Agyarko is a national of Ghana. Her date of birth is 1 October 1962. She entered the United Kingdom with limited leave to enter in 2003 and a few months later became an illegal overstayer. After a period of living unlawfully in the United Kingdom, she formed a relationship and co-habited with Richmond Benette, who is a naturalised British Citizen. On 18 August 2012 they married by proxy in accordance with Ghanaian law. Their relationship and marriage was formed in circumstances of known precariousness of the kind referred to in the caselaw of the European Court of Human Rights ("ECtHR") considered in R (Nagre) v Secretary of State for the Home Department  EWHC 720 (Admin), at paras. -; and for recent authority of the Grand Chamber of the ECtHR to the same effect, see Jeunesse v Netherlands (2015) 60 EHRR 17, para. . Mrs Agyarko and Mr Benette have not had children.
- By a letter dated 26 September 2012 from Mrs Agyarko's solicitors to the UK Border Agency, for the Secretary of State, Mrs Agyarko applied for leave to remain in the United Kingdom. The letter stated that she applied for leave to remain "outside the Immigration Rules", but in the event the Secretary of State treated her application as an application for leave to remain both under the Rules and outside the Rules. The letter maintained that with the family life Mrs Agyarko had established in the United Kingdom "she had settled down pretty well in this country" and that she had established strong social ties, had integrated into British society and regarded the United Kingdom as her home. The letter said that her ties with Ghana had become weak. It stated that "there would be insurmountable obstacles in the way of [Mrs Agyarko] going back to Ghana" because of the absence of support or prospects for her there, and continued:
"Our client and her husband would be seriously disadvantaged in the sense that she may be separated from him and therefore the family life that they have established in the United Kingdom would be interrupted.
Most disturbingly out client is likely to face an inordinate delay in obtaining an entry clearance to the UK if she were asked to do so and there is also a risk that her application would be refused due to the fact that she is a previous overstayer."
- A completed application form was enclosed with the letter, with some supporting material. This added nothing in relation to the claim in the letter regarding possible disruption to family life with her husband. Included with the supporting material was a schedule of Mr Benette's income for the year ended 5 April 2012 from self-employment and two jobs. This stated that his income for that year had been £3,302 gross from one employment, £14,876 gross from the second employment and £9,326 gross from self-employment.
- By a decision letter dated 7 October 2013, the Secretary of State refused Mrs Agyarko's application. The Secretary of State considered the application under the Rules on family life (including section EX.1), under paragraph 276ADE of the Rules in relation to private life and under Article 8 outside the Rules.
- In relation to section EX.1, the decision letter said:
"You have a genuine and subsisting relationship with your British partner. Whilst it is acknowledged that your partner has lived in the UK all his life and is in employment here, this does not mean that you are unable to live together in Ghana. Although relocating there together may cause a degree of hardship for your British partner, the Secretary of State has not seen any evidence to suggest that there are any insurmountable obstacles preventing you from continuing your relationship in Ghana.
You therefore fail to fulfil EX.1 (b) of Appendix FM of the Immigration Rules."
- In relation to paragraph 276ADE, the decision letter included the following:
"At the time of your application you were aged 49. You were not under the age of 18 years. Neither were you aged 18 years or above and under 25 years of age. Therefore the Secretary of State is not satisfied that you can meet the requirements of Rule 267ADE (iv) and 276ADE (v).
You have spent 40 years of your life living in Ghana and, in the absence of any evidence to the contrary, it is not accepted that in the period of time that you have been in the UK you have lost ties to your home country. Therefore the Secretary of State is not satisfied that you can meet the requirements of Rule 276ADE (vi)."
- Under the heading "Decision on Exceptional Circumstances", the decision letter considered whether leave to remain should be granted outside the Rules by reason of Article 8. This heading reflected the Secretary of State's guidance to officials regarding the application of her residual discretion to grant leave to remain outside the Rules by reference to Article 8, discussed in Nagre at - and  and in SS (Congo) at . The letter said this:
"It has also been considered whether your application raises or contains any exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant consideration by the Secretary of State of a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules. It has been decided that it does not. Your application for leave to remain in the United Kingdom is therefore refused.
An application was made on your behalf on 27 September 2012. However, your leave to enter expired on 13 August 2003. Your therefore did not have leave to enter at the time of your application.
- Mrs Agyarko issued her claim for judicial review of the Secretary of State's decision in proper time. The Upper Tribunal refused permission and Mrs Agyarko now appeals. Her notice of appeal included a number of grounds, but not all of them were pursued by Mr Saini.
- On Mrs Agyarko's appeal, Mr Saini submits (i) that the Secretary of State erred in deciding, on her application for leave to remain under section EX.1 of the Rules, that there was an absence of insurmountable obstacles to family life with her husband continuing outside the United Kingdom; alternatively, (ii) that Mrs Agyarko has a right pursuant to Article 8 to be granted leave to remain outside the Rules, since the disruption to her family life with Mr Benette if she has to leave the country will be disproportionate.
- In my judgment, Mr Saini's first submission, based on section EX.1, should be rejected.
- The phrase "insurmountable obstacles" as used in this paragraph of the Rules clearly imposes a high hurdle to be overcome by an applicant for leave to remain under the Rules. The test is significantly more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the United Kingdom.
- This interpretation is in line with the relevant Strasbourg jurisprudence. The phrase "insurmountable obstacles" has its origin in the Strasbourg jurisprudence in relation to immigration cases in a family context, where it is mentioned as one factor among others to be taken into account in determining whether any right under Article 8 exists for family members to be granted leave to remain or leave to enter a Contracting State: see e.g. Rodrigues da Silva and Hoogkamer v Netherlands (2007) 44 EHRR 34, para.  ("
whether there are insurmountable obstacles in the way of the family living together in the country of origin of one or more of them
"). The phrase as used in the Rules is intended to have the same meaning as in the Strasbourg jurisprudence. It is clear that the ECtHR regards it as a formulation imposing a stringent test in respect of that factor, as is illustrated by Jeunesse v Netherlands (see para. : there were no insurmountable obstacles to the family settling in Suriname, even though the applicant and her family would experience hardship if forced to do so).
- For clarity, two points should be made about the "insurmountable obstacles" criterion. First, although it involves a stringent test, it is obviously intended in both the case-law and the Rules to be interpreted in a sensible and practical rather than a purely literal way: see, e.g., the way in which the Grand Chamber approached that criterion in Jeunesse v Netherlands at para. ; also the observation by this court in MF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1192;  1 WLR 544, at  (although it should be noted that the passage in the judgment of the Upper Tribunal in Izuazu v Secretary of State for the Home Department  UKUT 45 (IAC);  Imm AR 453 there referred to, at paras. -, was making a rather different point, namely that explained in para.  below regarding the significance of the criterion in the context of an Article 8 assessment).
- Secondly, the "insurmountable obstacles" criterion is used in the Rules to define one of the preconditions set out in section EX.1(b) which need to be satisfied before an applicant can claim to be entitled to be granted leave to remain under the Rules. In that context, it is not simply a factor to be taken into account. However, in the context of making a wider Article 8 assessment outside the Rules, it is a factor to be taken into account, not an absolute requirement which has to be satisfied in every single case across the whole range of cases covered by Article 8: see paras. - below.
- The statement made in Mrs Agyarko's letter of application of 26 September 2012 that "she may be separated from" her husband was very weak, and was not supported by any evidence which might lead to the conclusion that insurmountable obstacles existed to them pursuing their family life together overseas. There was no witness statement from Mrs Agyarko or Mr Benette to explain what obstacles might exist. The mere facts that Mr Benette is a British citizen, has lived all his life in the United Kingdom and has a job here and hence might find it difficult and might be reluctant to re-locate to Ghana to continue their family life there - could not constitute insurmountable obstacles to his doing so.
- In my view, the Secretary of State's assessment that there were no insurmountable obstacles to family life between Mrs Agyarko and Mr Benette continuing outside the United Kingdom cannot be said to be irrational or unlawful in any way.
- Mr Saini's alternative submission is that leave to remain should have been granted outside the Rules, based on Mrs Agyarko's and Mr Benette's rights to respect for their family life under Article 8. This submission has two aspects. Mr Saini submits that the Secretary of State's decision to refuse her application violated Article 8 either: (i) simply because it was disproportionate to remove Mrs Agyarko in circumstances where her husband would have to follow her to Ghana if they wished to continue their family life together, especially when he is a British citizen; or (ii) because Mrs Agyarko would have to return to Ghana and make an out-of-country application for leave to enter which would inevitably be granted, so that her removal served no good purpose. In relation to the latter argument, Mr Saini relied in particular on Chikwamba v Secretary of State for the Home Department  UKHL 40;  1 WLR 819.
- So far as concerns Mrs Agyarko's claim under Article 8 for leave to remain outside the Rules, since her family life was established with knowledge that she had no right to be in the United Kingdom and was therefore precarious in the relevant sense, it is only if her case is exceptional for some reason that she will be able to establish a violation of Article 8: see Nagre, paras. -; SS (Congo), para. ; and Jeunesse v Netherlands, paras. ,  and .
- For Mrs Agyarko's case in relation to grant of leave outside the Rules, Mr Saini correctly pointed out that the "insurmountable obstacles" test in section EX.1 is not an invariable necessary precondition to a finding of violation of Article 8, even in a case involving precarious family life. For these purposes, Mr Saini relied upon my judgment at first instance in Nagre, at para. , where I sought to explain that under Article 8 an insurmountable obstacles test is not the sole and definitive test for disproportionality in precarious family life cases. Mr Sheldon, for the Secretary of State, did not dispute this. Mr Saini also referred to Izuazu v Secretary of State for the Home Department, paras. -, and relied on Jeunesse v Netherlands as a recent authority which illustrates the same point. There, the circumstances of the applicant's case were found by the ECtHR to be exceptional even though there were no insurmountable obstacles for the family in that case to relocate and settle overseas: see paras.  and .
- Thus it is possible that a case might be found to be exceptional for the purposes of the relevant test under Article 8 in relation to precarious family life even where there are no insurmountable obstacles to continuing family life overseas. This means that there is a gap between section EX.1 of Appendix FM and what Article 8 might require in some cases: see Nagre, paras. -. But this does not mean that the issue whether there are or are not insurmountable obstacles to relocation drops out of the picture where there is reliance on Article 8. It is a material factor to be taken into account: see Nagre, paras.  and ; Rodrigues da Silva and Hoogkamer v Netherlands, para. ; and Jeunesse v Netherlands, paras.  and . In relation to precarious family life cases, as I observed in Nagre at para. , the gap between section EX.1 and the requirements of Article 8 is likely to be small.
- In Chikwamba, the House of Lords found that there would be a violation of Article 8 if the applicant for leave to remain in that case were removed from the United Kingdom and forced to make an out-of-country application for leave to enter which would clearly be successful, in circumstances where the interference with her family life with her husband associated with the removal could not be said to serve any good purpose. It is possible to envisage a Chikwamba type case arising in which Article 8 might require that leave to remain be granted outside the Rules, even though it could not be said that there were insurmountable obstacles to the applicant and their spouse or partner continuing their family life overseas. But in a case involving precarious family life, it would be necessary to establish that there were exceptional circumstances to warrant such a conclusion.
- In my judgment, Mrs Agyarko's appeal in relation to the refusal to grant leave to remain outside the Rules should be dismissed.
- In relation to Mr Saini's submission (i) referred to above, there simply are no exceptional circumstances in this case which could lead to the conclusion that the Secretary of State was obliged to grant leave to remain. The fact that Mr Benette is a British citizen is not in itself, nor in combination with any other features of the case, something which makes this case exceptional for the purposes of the test under Article 8. Several of the rulings of the ECtHR referred to in Nagre at paras. -, in which the exceptional circumstances test was stated and found not to be satisfied, involved a partner or spouse who was a national of the state from which the applicant was to be removed; see also SS (Congo), para. . In Jeunesse v Netherlands, the Grand Chamber did not suggest that such a feature on its own could constitute exceptional circumstances. Exceptional circumstances were found to exist because of other factors: the case involved a family with children, where the husband and children of the applicant were all Netherlands nationals and where the authorities had tolerated the applicant's presence in the country for a considerable period of time amounting to many years: see paras. -.
- As regards Mr Saini's submission (ii) above, the present case is very far from falling within the sort of exceptional circumstances which might be found to exist in a Chikwamba type of case. Mrs Agyarko did not ask the Secretary of State to consider whether leave to remain should be granted on the basis of Chikwamba. Accordingly, the Secretary of State cannot be criticised for omitting to address such an argument in her decision letter. It was not incumbent on the Secretary of State to cast around herself to try to fashion alternative arguments which might be advanced by Mrs Agyarko under Article 8. This was not an argument of such obviousness that the Secretary of State might be said to have come under an obligation to consider it regardless of whether it was distinctly mentioned by the appellant. Accordingly, the Secretary of State cannot be said to have erred in law in failing to grant leave to remain on this basis.
- Further, and in any event, the materials supplied with Mrs Agyarko's application for leave to remain did not demonstrate that she would be entitled to leave to enter if she were returned to Ghana and sought to make an out-of-country application from there. Under Appendix FM, detailed and demanding requirements have to be satisfied where an application for leave to enter is made by the foreign spouse of a British citizen, including demonstrating that the person sponsoring the application has current gross annual income of at least £18,600 p.a. supported by specified forms of evidence as set out in Appendix FM-SE: for discussion, see SS (Congo). The information about Mr Benette's income in a year ended some months before the application was made would not have satisfied those requirements. Moreover, Mr Saini did not take us to Appendix FM-SE to demonstrate that the relevant evidential requirements in respect of a putative application by Mrs Agyarko for leave to enter were satisfied by reference to the limited materials which she supplied to the Secretary of State. I was left completely unpersuaded by Mr Saini that Mrs Agyarko could have shown that she would be entitled to leave to enter if she had applied for it after removal from the United Kingdom.
- Mr Saini criticised the "Exceptional circumstances" section of the decision letter for being formulaic and failing to demonstrate that the Secretary of State had properly considered Mrs Agyarko's case based on Article 8 for leave to remain outside the Rules. I think there is some force in this. As was previously emphasised in Nagre at para. , the officials acting for the Secretary of State
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."
- The decision letter left something to be desired regarding the clarity of the reasoning set out in it. It did not in terms explain that this was a precarious family life case and the section of the letter dealing with exceptional circumstances was in formulaic terms. However, the letter did refer to the fact that Mrs Agyarko had been an overstayer since 2003, well before her marriage and any relationship with Mr Benette, and the materiality of this factor would have been obvious to those advising her. Also, the substance of Mrs Agyarko's case for leave to remain based on Article 8 had been addressed in the earlier sections of the letter dealing with Appendix FM and paragraph 276ADE, and her claim under Article 8 was so weak that there was no arguable case for leave to enter outside the Rules which required to be addressed separately: see Nagre at paras. -. Therefore, I do not consider that the criticisms which were made of the letter affect the lawfulness of the Secretary of State's decision to refuse leave to remain.
Mrs Ikuga's appeal
- Mrs Ikuga is a national of Nigeria. Her date of birth is 24 June 1974. She lived in Nigeria until 22 March 2008, when she entered the United Kingdom on a visitor visa, valid until 1 January 2009. She overstayed unlawfully in the country when her visa expired. At some unspecified date thereafter (probably in about 2011), she commenced a relationship with Mr Ijiekhuamhen, who is a British citizen. In this case also, therefore, the relationship was formed in circumstances of known precariousness. Mrs Ikuga and Mr Ijiekhuamhen have no children.
- Under cover of a letter from her solicitors dated 10 September 2012, Mrs Ikuga sent a completed form to apply for leave to remain in the United Kingdom. In the form, Mrs Ikuga stated that her address was 19 Alpha Road, New Cross, London. The covering letter stated that Mrs Ikuga relied on her rights under Article 8 in respect of family life. It was said that her relationship with Mr Ijiekhuamhen "could not be maintained and enjoyed in Nigeria as she is trying to conceive", and referred to private fertility treatment she had been receiving in the United Kingdom for which he had been paying. The letter also referred to her close relationship with her sister and her children living in the United Kingdom, and stated that this family life could not reasonably be expected to be enjoyed elsewhere (this last feature of the case has not been relied upon as the foundation for the argument on this appeal).
- No witness statements were provided to explain exactly what impediments might exist to Mrs Ikuga carrying on family life with Mr Ijiekhuamhen in Nigeria. However, some materials were provided referring to health treatment received by Mrs Ikuga in the United Kingdom. There was also a letter of support written by Mr Ijiekhuamhen, giving his address as 5 Arnold House, Doddington Grove, in which he stated that they had lived together at 5 Arnold House for two years; that she was still not well and he assisted her with her daily needs; and that he balanced this with full time employment. He continued:
"[Mrs Ikuga] is my source of joy and happiness. It will have a direct effect on me if she was sent to Nigeria. I have a full time job here in UK and I cannot leave UK for Nigeria. Apart from me, there is not anybody that can provide the care she needs. Also, there is no medical care for her needs in Nigeria. There are [counterfeit] drugs in circulation in Nigeria and I do not want fake drugs to be administered to her."
- Other documents submitted with the application also showed Mr Ijiekhuamhen's address to be 5 Arnold House, i.e. an address different from that given by Mrs Ikuga as her address. However, on 11 October 2013 the Secretary of State wrote to Mrs Ikuga asking for more information, and amongst the materials sent in response there was an electricity bill addressed to both Mr Ijiekhuamhen and Mrs Ikuga at 5 Arnold House (although Mrs Ikuga did not seek to correct the address she had given for herself on the application form).
- By a decision letter dated 29 October 2013, the Secretary of State refused Mrs Ikuga's application for leave to remain. The format of this letter was similar to that in Mrs Agyarko's case. It considered Mrs Ikuga's case first under Appendix FM, then under paragraph 276ADE and then addressed the question whether exceptional circumstances existed which might warrant grant of leave to remain outside the Rules.
- In relation to Appendix FM, the Secretary of State stated that Mrs Ikuga had provided no evidence to show that she had been living at the same address as the person she claimed to be her partner for the purposes of the Rules, and so did not accept that he qualified as a partner as defined in para. GEN 1.2 of Appendix FM, nor that their relationship was genuine and subsisting. In relation to paragraph 276ADE, the Secretary of State noted that Mrs Ikuga had spent 33 years living in Nigeria before coming to the United Kingdom and had maintained ties there. In the section of the letter headed "Decision on Exceptional Circumstances", the Secretary of State noted that, although Mrs Ikuga claimed to be suffering from medical conditions, she had not provided any documentary evidence to show any recent conditions or treatment, and continued: "Therefore your claimed conditions have been deemed not to be life threatening, or compelling and compassionate enough to grant leave outside the Immigration Rules".
- Mrs Ikuga commenced judicial review proceedings in proper time. Her application for permission to apply for judicial review was refused on the papers and then renewed at an oral hearing in the Upper Tribunal (Upper Tribunal Judge Craig). Judge Craig's view was that the decision letter did not show that there had been proper consideration of whether Mrs Ikuga did in fact live with Mr Ijiekhuamhen, but he refused permission on the grounds that the relationship with Mr Ijiekhuamhen had been formed when Mrs Ikuga was in the United Kingdom as an unlawful overstayer.
- The Upper Tribunal held that it could not be said that there were insurmountable obstacles to family life continuing with Mr Ijiekhuamhen in Nigeria, within the meaning of section EX.1(b) of Appendix FM. Judge Craig referred to the letter of support from Mr Ijiekhuamhen and observed, "these factors could not possibly persuade any decision-maker that there were insurmountable obstacles to family life continuing in Nigeria" (). He went on, at para. , as follows:
"The fact that the applicant's partner would have to change jobs is not an insurmountable obstacle and nor is the suggestion, as advanced, that there are fake drugs circulating in Nigeria which the partner does not wish the applicant to take. Were there an Article 3 claim open to the applicant, no doubt it would be made. As I understand the argument now advanced, it is that the applicant is undergoing fertility treatment in this country which she wants to continue. That is not an insurmountable obstacle to the couple going to Nigeria if they choose to do so. It is a matter for them; nobody is making a British citizen leave this country but if this couple want to enjoy family life together in this country they are only entitled to do so if they satisfy the requirements within the rules, which in this case they do not."
- Judge Craig also refused permission to apply for judicial review in respect of the decision to refuse leave to remain outside the Rules: paras. -. He observed, "There is nothing exceptional or, indeed, particularly rare about this application" (). He held that there was no argument based on Chikwamba which was capable of succeeding on the facts of the case (-). He also referred to the effect of the new section 117B, within the new Part 5A of the Nationality, Immigration and Asylum Act introduced by the Immigration Act 2014 (-).
- At the hearing before us, we refused permission to appeal in relation to this latter point: even if Judge Craig was in error in referring to section 117B, it had no material impact on his decision, both because he had already given other sufficient reasons for it (and his reference to section 117B was really just a footnote to what he had already decided) and because, as Underhill LJ observed when refusing permission on the papers, the point made by Judge Craig by reference to section 117B corresponded to the previous law regarding a right to remain in precarious family life cases only in exceptional circumstances. We also refused permission to appeal in relation to a complaint regarding the lawfulness of para. Gen. 1.2 of Appendix FM with regard to its compliance with Article 8: even if it did not correspond precisely with Article 8 requirements in every case, that would not render it unlawful: see Nagre, paras. - and SS (Congo), para. .
- We did, however, grant permission to appeal in relation to the issues for which permission to appeal had been granted in Mrs Agyarko's case (the claim for grant of leave to remain under section EX.1(b), alternatively outside the Rules under Article 8). We also granted permission in relation to a distinct issue in Mrs Ikuga's case: Mr Saini contends that Judge Craig erred by failing to consider whether the Secretary of State's error regarding whether there was evidence of Mrs Ikuga and Mr Ijiekhuamhen living together in a genuine and subsisting relationship should have led to the Secretary of State being required to reconsider her own exercise of discretion on the basis of a correct understanding of the facts.
- In my judgment, Mrs Ikuga's appeal should be dismissed on all three grounds on which she has been granted permission to appeal.
- First, as regards the appeal in respect of refusal of leave to remain under the Rules, in view of the stringency of the test in section EX.1(b) (see above), I agree with Judge Craig's assessment that the factors relied upon by Mrs Ikuga could not possibly persuade any decision-maker that there were insurmountable obstacles to family life continuing in Nigeria, within the meaning of that provision. Therefore, he was right to refuse to grant permission to apply for judicial review on this ground.
- Secondly, as regards the appeal in respect of refusal of leave to remain outside the Rules on the basis of Article 8, I again consider that Judge Craig's assessment cannot be faulted. The position is indistinguishable from that in Mrs Agyarko's case, discussed above. Mrs Ikuga's case involves precarious family life, with no children. No compelling medical circumstances have been shown to exist. The claim for leave to remain had not been put to the Secretary of State on the basis of Chikwamba, and in any event no materials were submitted which might show that leave to enter would have to be granted under Appendix FM if applied for. There was no arguable case that Mrs Ikuga could show that exceptional circumstances existed to support the conclusion that Article 8 required that she should be granted leave to remain.
- As regards the additional ground of appeal in Mrs Ikuga's case, I think Mr Saini is correct in submitting that a failure of the Secretary of State to consider how her residual discretion should be exercised on the basis of a correct understanding of the facts could in theory found a claim for judicial review of the Secretary of State's decision as to how her discretion should be exercised. He is also right to point out that Judge Craig did not deal with this distinct argument (in fairness to Judge Craig, it is by no means clear that this was identified clearly for him as a distinct matter for him to address).
- However, I would dismiss the appeal based on this ground. The reasoning of Judge Craig and the discussion above shows that this is very far from being a case in which exceptional circumstances could be found to exist, even on a correct understanding of the facts. The Secretary of State's policy as set out in the guidance for the officials who take decisions on her behalf is only to grant leave to remain outside the Rules in exceptional circumstances. Therefore, it is clear that, even if Mrs Ikuga's application were remitted to be reconsidered by the Secretary of State on the footing that Mrs Ikuga and Mr Ijiekhuamhen do co-habit and have a genuine subsisting relationship, there is no prospect whatever that the outcome would be a grant of leave to remain. Permission to apply for judicial review will be refused where judicial review will serve no sensible purpose, as here.
Mrs Evan's application for permission to appeal and an extension of time
- In the course of the hearing before us, Mr Saini made a renewed oral application for permission to appeal in Mrs Evans's case. Mrs Evans is another overstayer who has formed a precarious family life with a British citizen, whom she has married. On 28 March 2013, Mrs Evans applied for leave to remain based on that family life and her rights under Article 8. By a decision dated 17 May 2013, the Secretary of State refused that application. A pre-action protocol letter was sent by Mrs Evans's solicitors on 3 July 2013, but no reply was received until mid-September 2013. On 3 September 2013, well out of time, Mrs Evans eventually commenced these judicial review proceedings.
- On 13 December 2013, Simler J refused to grant an extension of time and also refused permission to apply for judicial review on the merits. The application for permission was transferred to the Upper Tribunal. On 27 June 2014, at the oral renewal of the application before Upper Tribunal Judge O'Connor, Judge O'Connor again refused to grant an extension of time (paras. - of his ruling) and also refused permission on the merits.
- By an order dated 27 February 2015, Underhill LJ refused permission to appeal on the papers. In relation to the question of extension of time, Underhill LJ's reasons included the following: "The decision whether to extend time involves a discretionary judgment, and [paragraphs 2-11 of Judge O'Connor's ruling] raise no arguable ground for concluding that Judge O'Connor (and indeed Simler J) made any error of principle
"; and he assessed Judge O'Connor's decision to refuse an extension of time as "unimpeachable", so that the merits of the claim did not need to be considered (paras. 3 and 4 of Underhill LJ's Reasons). I agree with Underhill LJ's assessment and with his reasons on the issue of an appeal in relation to the refusal to extend time for the judicial review claim to be made. Mr Saini was unable to point out to us any error of principle on the part of Judge O'Connor, and his decision is indeed unimpeachable. Accordingly, Mrs Evans' appeal must be dismissed. It is unnecessary and inappropriate for us to review the detailed substantive merits of claim for judicial review.
- For the reasons set out above, I would dismiss the appeals by Mrs Agyarko and Mrs Ikuga. I have also set out the reasons for refusing permission to appeal on certain additional grounds in Mrs Ikuga's case and in Mrs Evans's case.
LADY JUSTICE GLOSTER DBE:
- I agree.
LORD JUSTICE LONGMORE:
- I also agree.
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