Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 122
P553/12	OPINION OF LORD JONES in the cause TA (Turkey) (AP) (FE) Petitioner; for Judicial Review of decisions of the Secretary of State for the Home Department, dated 23 May, 29 May, and 10 September, all 2012 ________________

Petitioner: Forrest; Drummond Miller LLP

Respondent: Webster; Office of the Advocate General

12 July 2013

Introduction

[1] The petitioner is a national of Turkey. He was born on 5 October 1979. He seeks judicial review of decisions of the Secretary of State for the Home Department ("the respondent") of 23 May 2012, directing his removal from the United Kingdom on 30 May 2012, and of 29 May 2012, in which she rejected submissions made by solicitors acting for the petitioner, to the effect that information, which they had enclosed in a letter, dated 28 May 2012, amounted to a fresh claim that the petitioner's human rights in terms of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR") would be violated if he were returned to Turkey. The petitioner also seeks judicial review of a decision of the respondent, dated 10 September 2012, confirming the decision of 29 May.

[2] The background to this application, as averred by the petitioner, is as follows. The petitioner entered the United Kingdom on 22 February 2002, and claimed asylum. His claim was refused, he appealed, and his appeal was rejected. After sundry further procedure, his rights of appeal were exhausted as at 2 August 2004. Thereafter, as the petitioner puts it, he "lost contact with the immigration authorities", until May 2010, when he was detained. He submitted an application to remain in the UK, which was rejected. In June 2010, he was released from detention on bail, in order that he could pursue a fresh claim. Further submissions on his behalf were filed on 12 April 2011, and these submissions were rejected on 1 May 2012.

[3] According to his averments, at the beginning of 2009, the petitioner entered into a relationship with Ms DK, a UK national. That relationship was continuing when these proceedings was raised. The petitioner avers that he had not previously referred to the relationship, firstly, because he was unsure whether it would continue and, secondly, because neither he nor she was sure how their respective families would react.

[4] On 23 May 2012, the respondent issued directions for the removal of the petitioner from the United Kingdom on 30 May 2012. By letter, dated 28 May 2012, solicitors acting on the instructions of the petitioner supplied certain information to the respondent and submitted that it amounted to a fresh claim that the petitioner's article 8 rights would be violated if he were returned to Turkey. By letter, dated 29 May 2012, these submissions were rejected by the respondent. On the same day, the petitioner's solicitors wrote again to the respondent enclosing further information, comprising letters bearing to have been written by Ms DK and others, in support of the assertion that the petitioner has an established family life in the United Kingdom. By letter, dated 10 September 2012 ("the decision letter"), the respondent intimated her decision that she was content that the petitioner's removal from the UK remained appropriate.

The immigration rules

[5] Acting under the provisions of section 3(2) of the Immigration Act 1971 ("the 1971 Act"), the respondent has laid down rules as to the practice to be followed in the administration of the Immigration Acts for regulating entry into and the stay of persons in the United Kingdom. Paragraph 353 of the Immigration Rules (HC 395) provides, so far as is relevant, as follows:

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraphs 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i.) had not already been considered; and

(ii.) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."

[6] In the decision letter, the respondent intimated that it had been decided that the submissions presented by the petitioner's solicitors did not amount to a fresh claim, and that the new submissions, taken together with previously considered material, did not create a realistic prospect that an immigration judge applying anxious scrutiny would decide that the claimant ought to be granted asylum, humanitarian protection or discretionary leave.

[7] In this application, it is contended on behalf of the petitioner that the respondent "has erred in law, because she has acted unlawfully". (Statement 8 of the petition) The petitioner's lines of argument can be summarised as follows:

(i) in reaching her determination, the respondent applied immigration rules which came into effect on 9 July 2012. The petitioner's claim relates to the circumstances obtaining before that date;

(ii) the respondent has not considered "whether a claim that article 8 may be infringed [might succeed] outwith the Immigration Rules"; and

(iii) the respondent has not properly taken into account whether there are "exceptional circumstances" in this case.

[8] The case came before me for a first hearing on 23 January 2013. During the course of the discussion, the third of these lines was abandoned by Mr Forrest, who appeared for the petitioner, when it was pointed out to him that it is not averred that there are any exceptional circumstances in this case.

Whether the new rules apply to this case

Submissions for the petitioner

[9] Mr Forrest divided his submissions into two parts. In the first, he addressed the issue set out in paragraph 7(i) above, namely that the changes to the immigration rules which came into effect in July 2012 do not apply to the circumstances of this case.

[10] For an analysis of the history and status of these rules, my attention was invited to passages in the opinion of Lord Brodie in MS v Secretary of State for the Home Department [2013] CSOH 1 ("MS"), where his Lordship cites a number of authorities in which the immigration rules are variously described as "statements of administrative policy" but "unusual", having achieved ʺthe status of quasi-lawʺ. At the conclusion of his review of the authorities, Lord Brodie expresses the following view:

"In respectfully agreeing with the Court of Appeal in MO (Nigeria) v Home Secretary ... I would see the purpose of section 3 (2) [of the 1971 Act] as requiring the Secretary of State to exercise her powers on a basis which is open and principled and, with a view to facilitating that, to require her to make a public statement of how she intends to go about her task. The Secretary of State is to be taken as being aware of her various obligations and accordingly, unless the context indicates differently, the Immigration Rules may be taken to be her honest attempt to determine where the balance among them is to be struck, at least in the generality of cases, with the Rules then being available as instructions to the respondent's officers as to how they should go about their decision-making and as guidance to those persons who seek admission to and leave to remain in the United Kingdom."

[11] The rules that are of interest in this case were introduced under the negative resolution procedure, as required by section 3(2) of the 1971 Act, and took effect from 9 July 2012. The respondent's stated intention in introducing them was to create a clear public policy framework within the immigration rules, which had previously been lacking, in accordance with which article 8 claims would be determined.

[12] It is not controversial in this case that the petitioner's claim which is at issue was made before the new rules took effect. Mr Forrest contended that, consequently, the respondent ought to have determined the claim without reference to the new rules. He referred me to Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230 ("Odelola") (the case referred to by Lord Brodie in paragraph [10] above, but in the House of Lords), in which it was held that an applicant for leave to remain in the United Kingdom had no vested right to have his or her application determined in accordance with the rules in force at the time the application was made. Mr Forrest sought to distinguish Odelola, on the basis that the rules which were under consideration in that case, introduced by the Statement of Changes in Immigration Rules (2005) (HC 299), contained no transitional provisions. The 2012 Statement of Changes, by contrast, does contain transitional provisions. That demonstrates, argued Mr Forrest, that it was recognised that there would be cases, already under consideration by the respondent on 9 July 2012, to which the new rules would not apply.

Discussion

[13] In my opinion, Mr Forrest's argument on this issue falls to be rejected. In Odelola, Lord Hoffmann expressed the view that the question, whether the immigration rules created rights which subsequent rules should not, in the absence of express language, be construed as removing, was one of construction. (Paragraph 6) His Lordship continued as follows:

"7 In my opinion, if one looks at the function of the rules, they should not be so construed. They are, as I have said, a statement by the Secretary of State as to how she will exercise powers of control over immigration. So the most natural reading is that (in the absence of any statement to the contrary) they will apply to the decisions she makes until such time as she promulgates different rules, after which she will decide according to the new rules. That was the understanding of the Divisional Court in R v Immigration Appeal Tribunal, Ex p Nathwani [1979-80] Imm AR 9. If new rules are intended to apply only to applications made after they come into force, they expressly say so, as they did in paragraph 4 of the Statement of Changes in Immigration Rules (1994) (HC 395)."

[14] Lord Browne of Eaton-Under-Heywood, with whom Lord Hope of Craighead and Lord Scott of Foscote agreed, observed, among other things, that the immigration rules are the respondent's rules and that, in construing them, the search is for her intention, not for Parliament's intention. Further, his Lordship noted that the rules are essentially executive, not legislative, being statements of administrative policy. Lord Browne determined the issue in respect of the rules with which his lordship was concerned in these words:

"Standing back, therefore, from the detail and addressing, as Lord Mustill proposed in the case [1994] 1 AC 486, 525H 'a single indivisible question, to be answered largely as a matter of impression' I have no doubt that the changes in the immigration rules, unless they specify to the contrary, take effect whenever they say they take effect with regard to all leave applications, those pending no less than those yet to be made."

[15] Lord Neuberger of Abbotsbury, with whom Lord Hope also agreed, having decided that, as a matter of generality, the presumption against retrospectivity can apply to the immigration rules, continued as follows:

"... the next issue is whether it can be relied on in this case. I consider that the presumption, at least in its traditional sense, cannot be relied on, as this is not a case where there was a vested right at the time of the relevant amendment. At the time the 2006 statement came into effect, the applicant did not have a right to have her application determined by reference to the rules as amended by the 2005 statement. No doubt, she had that hope or even that expectation, but she did not have that legal right. Accordingly, if the amendments made by the 2006 statement applied to her application, there would be no interference with any vested right."

[16] As I have noted earlier in this opinion, this case concerns the petitioner's challenge to the decision to remove him to Turkey, on the ground that to do so would violate his article 8 rights. The provision relevant to such a claim is to be found at new paragraph 400 of the immigration rules, which is in the following terms:

"400. Where a person claims that their removal under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971, section 10 of the Immigration and Asylum Act 1999 or section 47 of the Immigration, Asylum and Nationality Act 2006 would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, the Secretary of State may require an application under paragraph 276ADE (private life) or Appendix FM (family life) of these rules. Where an application is not required, in assessing that claim the Secretary of State or an immigration officer will, subject to paragraph 353, consider that claim against the requirements to be met under paragraph 276ADE or Appendix FM and if appropriate the removal decision will be cancelled."

The removal directions issued on 23 May 2012 were made under the provisions referred to in paragraph 400.

[17] Under the heading "Implementation" on page 1 of the 9 July Statement of Changes, the following text appears:

"With the exception of paragraphs 6 to 72, 74 to 80, 82, 86, 88 to 90, 93, 97, 98, 100, 102, 103 and 106 the changes set out in this Statement shall take effect on 9 July 2012. Paragraphs 6 to 72, 74 to 80, 82, 86, 88 to 90, 93, 97, 98, 100, 102, 103 and 106 shall take effect on 1 October 2012.

However, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012."

On the face of it, the terms of the first paragraph of the implementation provisions require that the new rules, other than those expressly excepted, should be applied from 9 July 2012. Paragraph 400 is not among the rules expressly excepted.

[18] Further, in my opinion, it is clear from the terms of paragraph 400 that the respondent intended a distinction to be made between an "application" on the one hand and a "claim" on the other. As a matter of fact, and as he avers in statement 8 of the petition, the petitioner did not make an application of the type specified in the second paragraph of the implementation provisions, before 9 July 2012, and cannot, therefore, avail himself of the provisions of the second paragraph.

[19] Mr Forrest is correct to say that the 2012 rules contain transitional provisions. They are to be found at part 8 of the immigration rules as amended on 9 July 2012. Paragraph A227 of the rules provides that, from 9 July 2012, the new appendix FM will apply to all applications to which part 8 of the rules applied on before 8 July 2012, except where the provisions of that part are preserved and continue to apply as set out in paragraph A280 of the rules. Part 8, however, deals with "family members" and regulates the determination of certain applications for entry clearance, leave to enter and for variation of leave to enter. There are no transitional provisions in respect of paragraph 400.

[20] In my view, adopting the approach taken in Odelola, if the respondent had intended paragraph 400 to apply only to matters raised after it came into force, she could have expressly said so. The fact that she did not, and that she made transitional provisions in respect of part 8, but not paragraph 400, leads me to conclude that she did not so intend. On the facts of this case as averred by the petitioner, no right to have his claim determined by reference to the immigration rules as they existed prior to 9 July 2012 had vested in him by that date. In the circumstances, in my judgment the respondent acted lawfully in applying the new rules to the petitioner's claim.

Whether the respondent acted lawfully in rejecting the petitioner's article 8 claim

Submissions for the petitioner

[21] Turning to the second part of his submissions, Mr Forrest reminded me that it is accepted on behalf of the petitioner that he cannot succeed in his article 8 claim "in terms of the new rules". (Statement 9.1 of the petition) By that, I understood him to mean that the petitioner does not satisfy the requirements of the immigration rules as introduced in July 2012, which were intended to accommodate article 8 rights. Notwithstanding that, contended Mr Forrest, even if the new rules were applied, the respondent would have to consider also whether what he described as the "Razgar criteria" were met. Those criteria are to be found at paragraph 17 of the speech of Lord Bingham of Cornhill in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 and are as follows:

"(1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference 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? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"

[22] Mr Forrest submitted that, having regard to the terms of the decision letter, the respondent has given no consideration to issues of proportionality which might, by reference to domestic and/or Strasbourg jurisprudence, arise in the petitioner's case. No consideration appears to have been given to the question whether the proposed removal of the petitioner is necessary in a democratic society. Consequently, he argued, the respondent has acted in a way that no reasonable decision-maker would have acted.

Submissions for the respondent

[23] In response, Mr Webster argued that the new immigration rules set out the respondent's view as to what amounts to a proportionate interference with article 8 rights, and that her view has been endorsed by both houses of the UK Parliament. Once the rules have been applied, he argued, it is unnecessary for a decision-maker to consider article 8 further, except in cases which are regarded as "exceptional".

Discussion

[24] The argument which was developed by Mr Forrest on this branch of his submissions is essentially the same argument as was deployed by him before Lord Brodie in MS. The petitioner's contentions were rejected by his Lordship, and the petition was dismissed.

[25] In the opinion issued by Lord Brodie in MS, his Lordship described the primary question of principle that he had to determine as being whether the changes to the immigration rules effected in July 2012 have resulted in a material change in the way in which decisions on article 8 claims are lawfully made. (MS paragraph [26]). In discussing that question, Lord Brodie expressed the following view:

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

[27] In the hearing before me, Mr Forrest did not contend that there was any material point of distinction between the facts of MS and those of the present case. In considering the arguments presented to me, I took the view that Lord Brodie's approach was, with respect, correct and that I should follow it. Before I started to write this opinion, however, an Extra Division of the Inner House issued its decision, refusing a reclaiming motion against the dismissal of the petition in MS. In doing so, the court expressed the follow views:

"[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."

[28] For obvious reasons, when the case came before me on 23 January of this year, I was not addressed directly on the application of the good arguable case test to the circumstances of the petitioner's article 8 claim. On the view that the opinion of the Extra Division in MS may be thought to have clarified this area of the law, I arranged to have the case put out By Order, and invited further argument.

Further hearing

Submissions for the petitioner

[29] Parties appeared before me once more on 27 June 2013. Mr Forrest tendered a minute of amendment in which he sought to add the following averments:

"The petitioner accepts that his Article 8 claim cannot succeed within the Immigration Rules. He submits that there is a realistic prospect that his Article 8 claim would succeed before another Immigration Judge because there is an arguable case that his claim would be granted outwith the Immigration Rules in accordance with the discretion of the respondent to do so in appropriate cases (see MS v Secretary of State for the Home Department (2013) CSIH 52 (paragraph 7)). This is an appropriate case in which to do so because the consequences of removal would be so unjustifiably harsh that they would be disproportionate (see paragraph 28 in MS, supra). Removal would mean the end of the petitioner's relationship with Ms [DK]. It would adversely affect his relationship with the other family members referred to in Statement 4.3 (above) and the enclosures attached to item '2'. Removal would sever the links with his family in the UK and their dependence on him. In these circumstances removal would not amount to a proportionate interference in his private life. There is a good arguable case that he will be able to establish this before another Immigration judge. In failing to take this into account and holding that there is no realistic prospect of success before another Immigration Judge, the respondent has erred in law. In so doing, she has acted in a way that no reasonable decision maker would have acted."

Mr Forrest invited me to regard these averments as, in effect, his submissions in light of the Inner House decision in MS.

Submissions for the respondent

[30] In his response, Mr Webster tendered answers to the petitioner's minute of amendment, in these terms:

"The petitioner's circumstances were not such that his removal would result in unjustifiably harsh consequences for him such that his removal would not be proportionate. The respondent was entitled to so conclude. The respondent so concluded when she determined that exceptional circumstances did not exist; that on no view could it be said that his removal would be disproportionate; and that there was no realistic prospect of an Immigration Judge coming to a different conclusion in terms of the proportionality of removal. In asking herself whether there was a realistic prospect of success before an immigration judge the respondent considered whether there was a good arguable case that removal would be disproportionate. Reference is made to MS v Secretary of State for the Home Department [2013] CSIH 52 at [36]."

[31] Mr Webster submitted that, although the Extra Division had adopted the good arguable case test, and directed that it should be applied in place of the test of exceptionality, there was no difference in substance between the two. Since, as averred in the answers to the minute of amendment, the respondent had determined that exceptional circumstances did not exist and that the petitioner's removal from United Kingdom would not be disproportionate, this court could interfere with her decision only if it could be said to have been Wednesbury unreasonable.

Discussion

[32] At the conclusion of the hearing on 27 June, I reserved my decision on the petitioner's motion that I should allow the petition and answers to be amended in terms of the minute of amendment and answers which had been tendered at the bar. That motion was not opposed, but it remained within the discretion of the court to grant it or refuse it. I am of opinion that I should grant the motion in order properly to determine all questions at issue between the parties, and I now do so.

[33] In MS, the petitioner had claimed that he had formed a private life in the United Kingdom including a relationship with a British citizen and her daughter. (Paragraph [26] above) The decision-maker concluded that, although it might be accepted that the petitioner had done so, and that his private life might be disrupted by return to his country of origin, these were not considered to be exceptional circumstances. Consequently, the decision-maker held, 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. (MS, Inner House, paragraph [13])

[34] The considerations which troubled the Extra Division about the exceptionality test are to be found in paragraph [27] of the opinion of the court, in the following passage:

"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' (Chambersʹ 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."

[35] At paragraph [36] of its opinion, the Extra Division noted that 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, but continued:

"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."

[36] In this case, my concern is with the respondent's conclusion. The relevant part of the decision letter is in these terms:

"It is noted that your client is 32 years old and has been living in the United Kingdom since February 2002. Your client has not provided any evidence that he has no ties socially, culturally or has no family in Turkey. Your client therefore fails to meet the requirements in paragraph 276ADE of the Immigration Rules sub paragraphs (iii) and (v); without prejudice to whether he can meet sub paragraphs (i) and (ii). Even taking into account his claim under family relationships in the UK, it is not considered that any exceptional circumstances exist which would otherwise cause the UK to be in breach of Article 8 should your client be removed.

He has a poor immigration history including apparently working illegally and has failed to maintain contact with UKBA, and on no view could it be said that his removal is disproportionate. It is not accepted that these other family relationships can meet the Immigration Rules nor could it be reasonably said that more than normal emotional ties exist anyway.

Your client's removal is in order to protect the wider interests and tights of the public as it is vital to maintain an effective immigration control. His removal is considered lawful, in pursuit of a legitimate aim and proportionate.

In light of Paragraph 276ADE it is considered that there is no realistic prospect of an Immigration Judge coming to a different conclusion in terms of the proportionality of your client's removal."

Rule 276ADE is in these terms:

"Requirements to be met by an applicant for leave to remain on the grounds of private life

276ADE. The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 1.5 in Appendix FM; and

(ii) does not fall for refusal under any of the grounds in Section S-LTR 1.6 to 2.3 in Appendix FM; and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment); or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life residing continuously in the UK (discounting any period of imprisonment); or

(vi) is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.

In considering applications under this paragraph, the Secretary of State shall attach less weight to private life in the UK established following refusal of an earlier application for leave to remain made under paragraph 276ADE."

[37] The new rules give the following guidance on the approach to be applied in deciding whether to grant leave to remain outside the rules, in the exercise of the residual discretion the respondent has to grant such leave:

"3.2.7d Exceptional circumstances

Where the applicant does not meet the requirements of the rules refusal of the application will normally be appropriate. However, leave can be granted outside the rules where exceptional circumstances apply. Consideration of exceptional circumstances applies to applications for leave to remain and leave to enter. "Exceptional" does not mean "unusual" or "unique". Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin. Instead, "exceptional" means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. That is likely to be the case only very rarely. In determining whether there are exceptional circumstances, the decision maker must consider all relevant factors, such as:

(a) The circumstances around the applicant's entry to the UK and the proportion of the time they have been in the UK legally as opposed to illegally. Did they form their relationship with their partner at a time when they had no immigration status or this was precarious? Family life which involves the application putting down roots in the UK in the full knowledge that their stay here is unlawful or precarious, should be given less weight, when balanced against the factors weighing in favour of removal, than family life formed by a person lawfully present in the UK.

(b) Cumulative factors should be considered. For example, where the applicant has family members in the UK but their family life does not provide a basis for stay and they have a significant private life in the UK. Although under the rules family life and private life are considered separately, when considering whether there are exceptional circumstances private and family life can be taken into account.

If the applicant falls to be granted because exceptional circumstances apply in their case, they may be granted leave outside the rules for a period of 30 months and on a 10 year route to settlement."

[38] In my view, it is clear from the terms of the decision letter that the respondent had the terms of that guidance in mind when she considered the petitioner's claim. Having determined that he failed to meet the requirements in paragraph 276 ADE, she went on to consider whether any exceptional circumstances exist which would otherwise cause the UK to be in breach of article 8, should he be removed. She had regard, among other things, to his claim under family relationships (a reference to the petitioner's parents and extended family who are resident in the United Kingdom). She had earlier observed that the petitioner and Ms DK do not live together, the petitioner living in Scotland, and Ms DK in England, and that their relationship is no more than boyfriend/girlfriend.

[39] In MS, the Extra Division made the following observation:

"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 ʺgood arguable case ...ʺ

[40] As I have noted in paragraph [8] of this opinion, during the course of argument on 23 January 2013, counsel for the petitioner departed from his challenge to the respondent's decision, to the extent that such challenge was founded on the proposition that she had not considered whether there were exceptional circumstances in this case. He did so because he did not aver that there were any exceptional circumstances. By his latest amendment, he has introduced such averments: the petitioner's removal would mean the end of his relationship with Ms DK; it would add adversely affect his relationship with the other family members referred to in the petition; and it would sever the links with his family in the United Kingdom and their dependence on him. In my opinion, however, these averments do no more than narrate the consequences of removal which will inevitably follow in every case in which a claimant invokes the existence and nature of relationships in support of his or her article 8 claim. They are not averments of circumstances in which refusal would result in unjustifiably harsh consequences for the petitioner such that refusal of the application would not be proportionate. To borrow the words of the Extra Division in MS:

"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 (in) the application of the ... provisions of the Immigration Rules."

I did not understand Mr Forrest to argue otherwise. Consequently, in my opinion, it cannot be said that the petitioner has presented a good arguable case that leave should be granted outside the rules on a distinct assessment of proportionality, and it follows that it cannot be said that an immigration judge might reach a different conclusion from that reached by the respondent.

[41] In summary, my views on the questions which arise for determination in this case are as follows. Having applied the relevant immigration rules, the respondent concluded that the petitioner's article 8 claim failed. She then applied her mind to the separate question, namely whether his removal from the United Kingdom would be disproportionate to the public interest in maintaining effective immigration control. In addressing that question, she was complying with the terms of the relevant guidance, which requires the decision-maker to consider whether exceptional circumstances existed in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. She concluded both that no such circumstances existed and that there was no realistic prospect of an immigration judge coming to a different conclusion. In arriving at these conclusions on the approach which she adopted, the respondent effectively determined the petitioner's article 8 claim in accordance with the test formulated in MS in the Inner House.

[42] At the hearing which took place on 27 June 2013 Mr Webster argued that, if I were to decide matters as I have done in paragraph [41], I could interfere with the respondent's decision only if it were irrational. In MS at first instance, however, Lord Brodie observed that the views of the respondent "cannot be regarded as determinate of proportionality, ultimately that is a matter for judicial control", and these words were repeated in the opinion of the Extra Division without adverse comment. Whilst it seems to me that the approach contended for by Mr Webster is incorrect as a proposition of law, no argument was addressed to me on that point. I can say, however, that, in my judgment, there is no basis upon which the respondent's decision could be held to have been irrational. Further, for the reasons which I have expressed in this opinion, I am of the view that the petitioner's removal from the United Kingdom is not disproportionate to the legitimate aim of effective immigration control.

Decision

[43] For the foregoing reasons I shall dismiss the petition. I shall reserve all questions of expenses.