Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 16
P853/12	OPINION OF LORD BURNS in the Petition APS (A.P.) previously detained at Dungavel House Immigration Removal Centre, Straven, Lanarkshire, ML10 6RF and currently detained at Colnbrook Immigration Removal Centre, Colnbrook Bypass, Harmondsworth, West Trayton, Middlesex, UB7 0FX Petitioner; For Judicial Review of decisions by the Secretary of State for the Home Department. ________________

Petitioner: Forrest; Drummond Miller LLP (for Steen Bali McSherry, Glasgow)

Respondent: Webster; Office of the Solicitor for the Advocate General for Scotland

30 January 2013

[1] This petition for judicial review called before me on 25 and 26 October 2012. The petitioner was represented by Mr Forrest, advocate and the respondent by Mr Webster, advocate.

Background Circumstances

[2] The petitioner is APS who was born in November 1989. He is a national of India. In October 2010 the petitioner arrived in the UK on a student visa valid until 12 January 2015. The visa was granted so that the petitioner could undertake a course of study at Beckett College, London. On 25 May 2011 the UK Border Agency (UKBA) was informed by the college that the petitioner had ceased to study with them. The petitioner did not notify the UKBA that he had stopped attending the college or that he had enrolled at another institution.

[3] On 30 January 2012 the petitioner's leave to enter the United Kingdom was curtailed so that it expired on that date. By letter of 30 January 2012 the UKBA informed the petitioner as to the curtailment of leave and of his right of appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). He did not appeal against that decision.

[4] In spite of the terms of that letter, the petitioner did not leave the United Kingdom. It appears that some time in 2011 the petitioner had travelled to Glasgow. According to a letter dated 1 August 2012, which was written by his solicitors after the petitioner was detained by the respondent in Glasgow, the petitioner had met a lady, Ms C, in Glasgow in April 2011. The letter goes on to narrate that the petitioner and Ms C started a relationship "akin to marriage" in May of 2011 and were residing at a particular address in Glasgow. It was also stated in that letter that the petitioner proposed marriage to Ms C on 16 June 2011 and had planned their lives together, intending to live in the United Kingdom permanently. They had arranged a marriage at a registry office to take place on 30 July 2012 in Glasgow. However on that date and prior to the marriage ceremony, the petitioner was arrested and taken to Dungavel House Immigration Removal Centre where he was detained. He was interviewed there.

[5] As a result of that detention, his solicitors wrote to the UKBA by letter of 1 August 2012 claiming that he had established family life in Glasgow with Ms C and that article 8 of the European Convention of Human Rights (the Convention) was engaged in respect of him. .

"The Decision Letter"

[6] In response thereto the UKBA, on behalf of the respondent, wrote to the petitioner's solicitors on 6 August 2012 intimating that the petitioner had been given directions for his removal to India on 7 August 2012. That letter ("the decision letter") treated the petitioner's solicitor as having made an application to remain in the UK on his behalf and the respondent proceeded to consider that application against the background narrated in paragraphs 2 and 3 of the decision letter and stated that the application had been determined in accordance with "appendix FM and rule 276ADE of the immigration rules". In paragraphs 7, 8 and 9, the requirements necessary for the establishment of family life as set out in article 8(1) of the Convention are considered with reference to appendix FM (family member) of the immigration rules and rules R-LTRP 1.1 to ELRTP 4.2. The decision letter states in paragraph 9 that the respondent was satisfied that the petitioner did not qualify for leave to remain under the provisions of article 8 of the Convention on the basis of family life.

[7] In paragraphs 10 and 11, the petitioner's claim to have established private life in the United Kingdom was considered with reference to immigration rule 276ADE. The respondent considered that the petitioner had failed to show that he had established private life in the United Kingdom.

[8] In paragraph 12 it is stated that:

"Even if it were accepted that your client did enjoy family or private life here, we are satisfied that he does not qualify under the immigration rules. He has failed to show that there are any insurmountable obstacles to any family or private life continuing outside the UK."

That paragraph proceeds to state that it is not accepted that it would be so unreasonable to expect him to return to India that it would amount to a disproportionate interference with his rights under article 8 and so breach the respondent's obligations under the Convention.

[9] In paragraph 13 reference is made to the question as to whether there are exceptional circumstances which meant that removal from the United Kingdom of the petitioner was not appropriate. Consideration was given to paragraph 353B of the immigration rules. It was not considered that there were any circumstances within the petitioner's immigration history that were sufficiently compelling to make a grant of leave under that paragraph appropriate.

[10] Accordingly the petitioner's application was refused. The respondent went on to consider the question whether the petitioner's claim under article 8 of the Convention was "clearly unfounded" in terms of section 94 of the 2002 Act. In paragraph 15 it is stated that, having considered all the available evidence, the respondent was satisfied that the petitioner's claim was clearly unfounded and certifies it as such under section 94(2) of the 2002 Act. That meant that the petitioner could not appeal to the Immigration Tribunal against that decision whilst in the UK.

[11] On 7 August 2012 the respondent issued a decision directing that the petitioner be removed from the United Kingdom on 15 August 2012. However, although the petition sought reduction of that decision, Mr Forrest made it clear that he did not insist on reduction thereof in view of the fact that that decision had become "redundant".

The Petitioner's Submissions

[12] In his petition, the petitioner seeks reduction of the decision of the respondent dated 6 August 2012 rejecting the claim that removal of the petitioner would amount to an infringement of his article 8 rights and certifying his claim as clearly unfounded. Mr Forrest helpfully provided a note of argument in support of the petition.

[13] It was first argued that the respondent had erred in holding that the claim was "clearly unfounded" as set out in paragraph 15 of the decision letter. Given the circumstances of this case and the evidence presented to the respondent, it could not be said that the claim based on the immigration rules or under article 8 of the Convention was bound to fail. Mr Forrest referred to the case of Regina (Yogathas) v Secretary of State for the Home Department and Regina (Thangarasa) v Secretary of State for the Home Department 2003 1 AC 920. That was a case under the Immigration and Asylum Act 1999 section 72(2)(a) which entitled the Secretary of State to certify that an allegation of a breach of human rights was "manifestly unfounded". However, Mr Forrest contended that the same test applied to section 94 of the 2002 Act although the phrase used in the latter provision was "clearly unfounded". At paragraph 14 (page 292) of the speech of Lord Bingham of Cornhill his Lordship said:

"Before certifying as "manifestly unfounded" an allegation that a person has acted in breach of the human rights of a proposed deportee the Home Secretary must carefully consider the allegation, the grounds on which it is made and any material relied on to support it. But his consideration does not involve a full blown merits review. It is a screening process to decide whether the deportee should be sent to another country for a full review to be carried out there or whether there appeared to be human rights argument which merit full consideration in this country before any removal order is implemented. No matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation, the Home Secretary is entitled to certify if, after reviewing this material, he is reasonably and conscientiously satisfied that the allegation must clearly fail."

[14] Mr Forrest contended that the last sentence of that paragraph constituted the applicable test against which the decision of the respondent in this case to certify the petitioner's claim as clearly unfounded fell to be made.

[15] Secondly, it was argued that the respondent erred in holding that the petitioner would fail under the immigration rules for the reasons set out in paragraph 7 of the decision letter because she had failed to show that the petitioner did not have "a genuine and subsisting relationship" and no discussion was made in relation to whether there were "insurmountable obstacles" to family life continuing in the UK.

[16] Mr Forrest referred me to certain portions of the immigration rules which had recently been amended with effect from 9 July 2012. It is important to record here that it was not contended by the petitioner in this case that these rules, which had not been the subject of challenge in these courts, were in any way incompatible with the requirements of the Convention.

[17] I was informed that the amendments to the rules added significant and substantial provisions which provided a scheme by which a decision on whether or not to remove a person from the United Kingdom in circumstances such as are represented here is to be made. Mr Forrest reminded me that article 8(1) of the Convention provided that everyone has the right to respect for his private and family life. That was qualified by the second paragraph in article 8 which prohibits interference by a public authority with the exercise of that right "except such as is in accordance with the law...or the economic wellbeing of the country".

[18] I was referred firstly to the provisions in the immigration rules of those persons seeking to remain in the United Kingdom on the basis of their family life with a person who is a British citizen. Those provisions are set out in appendix FM. The purpose of these provisions is set out in the paragraph entitled GEN 1.1 and provides as follows:

"This route is for 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...It sets out the requirements to be met and, in considering applications under this route, it reflects how under article 8 of the Human Rights Convention the balance will be struck between the right for respect to private and family life and the legitimate aims of protecting national security, public safety and the economic wellbeing of the United Kingdom."

[19] Mr Forrest accepted that, under the rules contained within appendix FM, it was necessary for the petitioner to demonstrate first that he and Ms C had a "genuine and subsisting relationship" and that there were "insurmountable obstacles to family life with Ms C continuing outside the United Kingdom". That approach was derived from the terms of rule E-LTRP 2.2 which relates to immigration status requirements which provides as follows:

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

[20] In this case, since the petitioner had departed from the terms of his visa and since his leave to remain had been curtailed without appeal, the petitioner was in breach of immigration laws. The question therefore came to be whether or not the petitioner fell within the exception in section EX 1 of appendix FM. Section EX 1 provides as follows:

"This paragraph applies if

(a) [does not apply.]

(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."

[21] It can be seen from paragraph 7 of the decision letter that, although reference is made to a large number of immigration rules within appendix FM, paragraphs (i) and (ii) of the decision letter focus upon the elements contained in EX 1 (b). Accordingly, the new rules contained within appendix FM rule out the establishment of family life for the purposes of article 8 of the Convention if an applicant is in breach of immigration laws, as was the case here, unless the applicant can demonstrate that he has "a genuine and subsisting relationship" with a UK citizen and there are "insurmountable obstacles to family life" with that partner continuing outside the United Kingdom. As stated above, it was not contended that these rules did not comply with the Convention. That was because, Mr Forrest contended, the rules did not exclude such claims outwith the immigration rules. I will return to this matter in due course.

[22] In relation to whether the petitioner had established "a genuine and subsisting relationship" it was contended that the evidence provided to the Secretary of State indicated that this was a matter for proof and that his claim in this respect was not clearly unfounded in terms of section 94 of the 2002 Act. Mr Forrest pointed out that in paragraph 8 the Secretary of State dealt with the evidence provided to her by the petitioner through his solicitor. In that paragraph the Secretary of State said this:

"Although your client and Ms C claim that they are in a relationship akin to marriage, the evidence forwarded with your letter fails to corroborate this. You have supplied an affidavit by Ms C and a copy of her birth certificate. You have also forwarded an affidavit from a Mr RS in which he fails to mentioned Ms C by name, referring to her as your client's "wife to be" and confirms that "they will be residing with me if released at the above address". None of this establishes that your client and Ms C are and have been, in a relationship akin to marriage. When questioned about his circumstances, it is of note that your client was unable to give his alleged fiancée's home address, did not know the names and ages of her two children and was unable to say in which restaurants they ate."

[23] Mr Forrest contended that an analysis of the facts presented in the affidavits prevented a conclusion that none of the materials established that there was no relationship akin to marriage. The Secretary of State had assumed that the petitioner and Ms C had no intention of continuing their relationship but there was evidence from Ms C in her affidavit that that was the intention of the parties.

[24] He submitted that it was not open to the Secretary of State to infer from the available evidence that there was no real intention to marry and the conclusion that the claim was clearly unfounded and bound to fail was not merited. She had failed to have regard to the terms of the affidavit of Ms C which was lodged with the letter from the petitioner's solicitor to the effect that her two children were in foster care in London. This provided an explanation as to the petitioner's ignorance of the names of those children at interview.

[25] In respect of the requirement that the petitioner should show that there were "insurmountable obstacles" to family life with Ms C continuing outside the UK, Mr Forrest contended that there was no consideration at all of this issue.

[26] In relation to the establishment of private life within article 8, the new rules make provision for the assessment of this in rule 276 ADE. This provides (so far as material):

"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 2.3 and S-LTR 3.1 in appendix FM and......

(iii) has lived continuously in the UK for at least 20 years.....: or

(v) is aged 18 or above and under 25 years and has spent at least half of his life residing continuously in the UK.....: or

(vi) is aged 18 years or above, has lived continuously in the UK for less than 20 years....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."

Mr Forrest accepted that the petitioner did not meet any of the criteria of private life set down in that rule.

[27] Mr Forrest then turned to a consideration of the petitioner's case in what he termed the context of "being outwith the Immigration Rules" and to the question of proportionality in article 8(2) of the Convention. He then proceeded to examine anew the contention that the petitioner had an established family and private life within the UK. This appeared to be on the basis that the new immigration rules did not exclude such claims being considered in this way. In the event, Mr Webster disagreed with that approach. I will deal with that particular matter in due course.

[28] Mr Forrest proceeded to argue that the petitioner had established family life by demonstrating a set of facts and circumstances which on the evidence provided to the Secretary of State represented, on any view, the minimum evidence required to establish family life. Reference was made to the case of Kugathus v Secretary of State for the Home Department 2003 IM LR 170. That was a case in relation to a Sri Lankan asylum seeker who resided in the United Kingdom and who claimed to enjoy family life with relatives living in Germany. At paragraph 17 Lord Justice Sedley refers to what represents "the irreducible minimum of what family life implies" in the context of dependency and support between partners. Mr Forrest contended that it could not be said in this case that the evidence in relation to the petitioner's relationship with Ms C fell below the "irreducible minimum" of what was required for family life in terms of article 8.

[29] In relation to the establishment of private life and again looking at the matter outwith the immigration rules, Mr Forrest contended that the petitioner, by the evidence provided, had established that he had a private life within the UK since he had been there since October 2010. It was perverse to conclude that he had not established a private life. He had studied at a college in London and established a relationship that the petitioner contended was to result in marriage.

[30] In these circumstances, Mr Forrest argued that the petitioner had demonstrated, at the least, that article 8 was engaged and thus it was incumbent on the respondent to justify the interference with the petitioner's rights. He submitted that the respondent had failed to do so. There was no attempt to justify the interference in the decision letter.

[31] Reference was made to the case of R (Razgar) v Secretary of State for the Home Department 2004 2AC 368 at 389. In dealing with the scope of review Lord Bingham of Cornhill stated at paragraph 17:

"In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have been asked by an adjudicator. In a case where removal is resisted on reliance on article 8, these questions are likely to be: (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 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?"

Mr Forrest submitted that the Secretary of State should have dealt with the matter of proportionality in much greater detail. He referred to Huang v Home Secretary 2007 2 AC 167 at 187 paragraphs 19 and 20. He also referred to three cases of the European Court of Human Rights: Boultie v Switzerland 33 EHRR 50 page 1179, Uner v Netherlands 2007 Imm AR 303 and Rodrigues DA Silva, Hoogkamer v Netherlands 2007 44 EHRR 34 page 729.

The Respondent's Submissions

[32] Mr Webster also provided me with a written submission. He firstly explained that the latest changes to the immigration rules had been the subject of a degree of scrutiny by Parliament in terms of section 3 of the Immigration Act 1971. There was some debate on the changes to the rules in the House of Commons on 19 June 2012 after which it was resolved inter alia that "the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained within the immigration rules" (the Respondent's Authorities No 6). The rules were also scrutinised by the House of Lords Secondary Legislation Committee but I was not provided with details thereof. The rules were the subject of some debate in the House itself on 23 October 2012 and I was given a transcript of the debate in which it does not appear that the House of Lords approved of or agreed with the terms of the new rules. Mr Webster informed me that the rules would be the subject of further debate in the House of Lords in the near future.

[33] Prior to the new rules being promulgated, I was informed that there was no guidance in the rules as to how the authorities should approach article 8 claims and, in particular, the question whether any interference with those rights was proportionate. This matter was highlighted in Huang at paragraph 19. The changes to the rules were designed to address this matter and provide such guidance.

[34] Mr Webster provided me with a letter which the Home Office had sent to The Hon. Mr Justice Blake dated 24 October 2012 in response to two questions he had raised in a pending appeal. The first question asked was whether the new rules had made any changes to the existing case law and, if so, how rules could achieve such change. The answer given was, in summary, that the new rules did not seek to change the case law but sought to provide guidance to decision makers in assessing the proportionality of interference in family and private life where the fifth step set out in the case of Razgar is being considered. In paragraph (e) on page 3 of the letter, it is stated:

"They (the recent changes to the Rules) fill the policy vacuum the Government inherited by setting out the position of the Secretary of State on proportionality under article 8, in the light of existing case law and of evidence such as the report of the independent Migration Advisory Committee on the minimum income threshold for sponsoring family immigrants. The new rules state how the balance should be struck between the individual rights and the public interest. They provide clear instructions for the Secretary of State's case workers on the approach they must normally take and they therefore provide for a clear, consistent and transparent decision-making process"

[35] On page 6 of the letter it states that there may be cases where a person who fails under the rules may nevertheless succeed under the law relating to article 8. Those cases will be ones where, under the rules, refusal of leave to remain, for example, would result in "an unjustifiably harsh outcome" for the claimant.

[36] Thus even where an application of the new rules would mean that the claim would fail, the Secretary of State retains a discretion to allow the claim where such an outcome would result.

[37] In addressing the petitioner's challenge to the decision letter under the rules, Mr Webster submitted that the Secretary of State was justified in concluding that the evidence presented to her in the letter from the solicitor of the petitioner of 1 August 2012, in the affidavits which accompanied that letter and from the interview of the petitioner, failed to establish that there was any genuine and subsisting relationship between the petitioner and Ms C. It was not necessary for the decision letter to narrate all the evidence presented and there was no basis for assuming that evidence had been ignored. She was entitled to draw the inference that no genuine and subsisting relationship existed. Thus the Secretary of State was entitled to find that the petitioner's claim based on an established family life in the UK failed. The petitioner did not contend that the Secretary of State's decision under the rules in respect of the claim that the petitioner had established private life was wrong.

[38] So far as the argument to the effect that the petitioner had a claim "outwith the rules "was concerned, Mr Webster submitted that there was no scope to consider this matter again outwith the rules. A proper exercise had been carried out under the rules which addressed the article 8 aspect of the claim and the proportionality of the decision to remove the petitioner. However, as stated above the respondent could, in appropriate circumstances, grant leave to remain even where an applicant could not bring himself within the rules.

[39] The Secretary of State had regard to the position of Ms C in paragraph 12 of the decision letter. She had concluded that there were no insurmountable obstacles to the petitioner and Ms C continuing any family life in India. She would not lose her right to live in the UK and could make a choice as to where she lived. It was for the petitioner to show the respondent that there would be insurmountable obstacles to her going to India with the petitioner.

[40] Mr Webster also submitted that there was, in any event, nothing in the circumstances of the petitioner advanced to the Secretary of State that could on any view amount to exceptional circumstances which might justify finding in his favour in spite of the position under the rules. Again it was for the petitioner to advance circumstances which amounted to an unjustifiably harsh outcome if leave to remain was refused. No such circumstances had been advanced here.

[41] Under reference to H(H) v Deputy Prosecutor of the Italian Republic 2012 3WLR 90 at pages 99 and 108 which was an extradition case, Mr Webster emphasised that when examining the proportionality of the decision to refuse leave to remain, it was important to focus on the consequences of the interference with article 8 rights. Those require to be "exceptionally serious" before they can outweigh the importance of controlling immigration. As Lady Hale stated at paragraph 32 on page 108 "the test is whether the gravity of interference with family life is justified by the gravity of the public interest pursued". Mr Webster argued that there was nothing advanced by the petitioner which could be said to amount to such grave interference with any article 8 right so as to outweigh the importance of controlling immigration.

Discussion

[42] Dealing first with the respondent's consideration of this matter under the new immigration rules, no argument was advanced before me that these rules are incompatible with the Convention. Mr Forrest proceeded on the basis that there was scope for the respondent to consider this matter outwith the rules. Mr Webster did not accept that in terms but did submit that the respondent had a residual discretion under the rules where an exceptionally harsh outcome would result in the event of refusal of leave to remain. I did not understand Mr Forrest's position to alter in the light of those submissions. Indeed, when invited to respond to Mr Webster's submissions, Mr Forrest said that the main question in this case was whether the petitioner's case can be said to amount to exceptional circumstances and the Secretary of State had not taken into account the evidence which led to an exceptionally harsh outcome.

[43] In the circumstances I can come to no conclusion as to whether or not the new rules are compatible with the Convention. As Mr Webster submitted, the fact that parliament has given some degree of scrutiny to these rules is a matter to which I would have had due regard, if called upon to consider their compatibility with convention law but, in the context of this case, I can only examine the respondent's decision based upon the rules and as set out in the decision letter. In so doing, I find that Mr Forrest's criticisms are unfounded.

[44] In terms of the petitioner's claim under the rules that he had established a family life in the UK which thus engaged his article 8 rights, I consider that the respondent was entitled to reach the conclusion that no such right had been established in terms of the applicable rules quoted above. The evidence submitted and the terms of the interview with the petitioner, in my view, provides a proper basis for the conclusion that there was no "genuine and subsisting relationship" between the petitioner and Ms C. As is pointed out in paragraph 8 of the decision letter, there was no independent support for the existence of the relationship between the petitioner and Ms C. Further, the petitioner himself was unable to give Ms C's address and unable to name her children or give their ages. The respondent was entitled from that material to reach the conclusion she did. There is no warrant for assuming that the respondent failed to have regard to the evidence in the affidavit of Ms C to the effect that her children lived in London. Even if that matter is capable of explaining the petitioner's inability to give their names, the affidavit is referred to expressly in the decision letter at paragraph 2.

[45] In that event it was not necessary to examine whether the second part of EX1(b) was fulfilled. However, there was no material advanced by the petitioner which could have formed the basis for a conclusion that there were insurmountable obstacles to any family life which might have been established continuing outside the UK, in India or elsewhere.

[46] As to the claim in respect of private life, Mr Forrest accepted that the petitioner could not succeed under the rules on this aspect of his claim.

[47] The new rules are designed to address the issue of the proportionality of decisions on immigration matters and provide a basis on which "the caseworker assesses whether interference in an individual's family or private life is proportionate to the legitimate public policy objective to be achieved" (see the letter to the Hon. Mr Justice Blake of 24 October 2012 page 2). Those objectives are the maintenance of immigration control, protecting the economic wellbeing of the UK, ensuring efficiency and consistency of decisions and preventing arbitrary decision making. In Appendix FM Section GEN 1.1, as quoted above, the stated aim is to strike a balance between the right to respect for both family and private life and the legitimate aim of protecting inter alia the economic wellbeing of the UK and the protection of the rights and freedoms of others. The way in which it does that in the context of the right to family life is to preclude an applicant from obtaining leave to remain if he is in the UK in breach of immigration law unless he has a genuine and subsisting relationship with a UK citizen and there are insurmountable obstacles to family life with that partner continuing outside the UK. In this case the petitioner failed at the first hurdle in that the respondent was not satisfied that he had a relationship of the nature required.

[48] Mr Forrest further argued that the respondent ought to have proceeded to consider the question of whether the petitioner had established a family life and a private life outwith the context of the new rules. However, having accepted that those rules were not incompatible with the Convention and standing the explanation of the purpose of those rules set out above, I do not understand how it can be argued that such an exercise required to be carried out. Those rules are said to be designed to strike the balance between the public interest and the private right. In any event, the respondent would have been entitled to conclude that the material placed before her which purported to constitute the establishment of family life fell well short of the "irreducible minimum" to which Lord Justice Sedley referred in Kugathus.

[49] Mr Forrest also contended that the respondent ought to have dealt with the question of whether the order was proportionate outwith the rules in much greater detail and submitted that there was no proper consideration of that issue in the decision letter. He referred to the case of Huang v Home Secretary 2007 2 AC 167 at 187 paragraphs 19 and 20 in which the court emphasised the need to strike a fair balance between the rights of the individual and the interests of the community. He also referred to three cases of the European Court of Human Rights, Boultie v Switzerland 33 EHRR 50 page 1179, Uner v Netherlands 2007 Imm AR 303 and Rodrigues DA Silva, Hoogkamer v Netherlands 2007 44 EHRR 34 page 729.

[50] These cases concerned the approach taken by the court in assessing the proportionality of an order to expel an alien from a host country.

[51] The first and second of these cases involved applicants who had been convicted of criminal offences in the host country and all three involved applicants who had partners and/or children in that country. While some of the criteria identified in these are relevant in the present case, others are not. Clearly, where, as in Rodrigues, there are children of a union who have citizenship in the host country, such a factor will be of material importance in the balancing exercise to be carried out. But that is not a consideration here. Even if such a consideration does apply, it appears that the state retains a margin of appreciation in assessing all the relevant factors. Among those identified in the cases cited to me were whether the person involved in the family life knew of the applicant's immigration status (Rodrigues para 39) and the seriousness of the difficulties which the spouse is likely to encounter in the country of origin (though this will not be determinative and there were no such difficulties identified here) (Boultie para 48).

[52] In addition, the first two cases concerned what were termed "settled migrants" who had been legally resident in the host country when they committed criminal offences. Boultie had married a Swiss citizen and held a residence permit. Uner had lived in the host country from the age of 12 and also had a residence permit. In Da Silva the first applicant had lived in the host country since 1994 and her daughter, the second applicant, was a national of the host country. Here the petitioner was in the UK illegally.

[53] I have already said that I cannot reach a concluded view on whether or not the new rules are compatible with the Convention. However, it is apparent from the terms of paragraph 12 of the decision letter that, having concluded on the evidence placed before her that the petitioner had not established family or private life under the rules, the respondent went on to consider a second position. That was upon the assumption that the petitioner "did enjoy family or private life" in the UK. It was concluded on that basis that he did not qualify under the rules since the petitioner had failed to show that there were any insurmountable obstacles to any such family or private life continuing outside the UK. Reasons are given for that conclusion. The last sentence of paragraph 12 then goes on to state that:

"It is not accepted that it would be so unreasonable to expect him to return to India that it would amount to a disproportionate interference with his rights under article 8 and so breach our obligations under the ECHR."

[54] That appears to me to show that the respondent conducted an exercise balancing the petitioner's family and private circumstances as presented to her (on the assumption that he had established such rights) against the aims of the UK's immigration policy stated above and concluded that it would not be disproportionate for him to return to India. While, as submitted, there is no mention of the above aims in the decision letter, standing the fact that they are set out in the rules themselves, that is not a valid criticism. Accordingly and given the nature of the evidence presented to the respondent, this consideration of the issue of proportionality seems to me to be adequate.

[55] It also appears that the respondent gave consideration to whether what Mr Webster termed "exceptional circumstances" were present in this case. That exercise is to be seen in the terms of paragraph 13 of the decision letter where it is stated that:

"In deciding whether there are exceptional circumstances which mean that removal from the UK is not appropriate, consideration is given to paragraph 353B and the following factors".

Those factors include at (iv) "Any representations received on the person's behalf".

[56] In the various sources of guidance on the new rules there is reference to "exceptional cases" which might be decided in favour of the applicant although the rules dictated that his claim be refused (see for example the Explanatory Memorandum to the Statement of Changes in immigration rules (number 7 of the Petitioner's Authorities para 7.2). Mr Webster submitted that in identifying such cases, the effect on the claimant of a refusal of leave to remain ought to be examined and if that was "harsh" then an outcome different from what the rules indicated might be arrived at. The respondent concluded that there were no exceptional circumstances in this case. Having regard to the material presented to the respondent, I am of the view that that conclusion cannot be faulted. In any event it is plain that the respondent did not decide this matter solely on the basis of the new rules but, as Mr Webster submitted, exercised a residual discretion along the lines set out in the case of Razgar at paragraph 20 and Huang at paragraph 20.

[57] The starting point must be that the petitioner was in the UK in breach of immigration law. This was accepted. In those circumstances, the weight to be placed on any family or private life which could be said to have been established would properly be regarded as being less than if the claimant was in the UK legally.

[58] Further, the respondent had, in my view, legitimately concluded that the petitioner's relationship with Ms C was bogus and therefore there was no reasonable basis for concluding that he had any family life within the UK. As to private life, there was no evidence presented to the respondent of any close social ties which the petitioner had developed anywhere in the UK.. If his relationship with Ms C was to be ignored due to its bogus nature, then there remained only the evidence in the affidavit from Mr RS who purported to be a friend of the petitioner, in which he failed to mention Ms C by name. In those circumstances little, if any, weight fell to be placed on the private life of the petitioner as developed in the UK. In any event, as was pointed out in the decision letter, the petitioner could maintain contact with any (unidentified) friends in the UK by the use of modern communication methods. Added to this was the absence of any suggestion that the petitioner's family or private life in India was impaired in any way, for example by long absence from his country of origin. Nor was there any suggestion that his human rights would be breached if he was to return to India.

[59] Mr Forrest also submitted that there was no treatment at all of the position of the petitioner's "fiance" and her rights ought to have been accounted for. However, the respondent had found that the relationship with Ms C was bogus and thus her position did not require to be accounted for. In any event, the position of Ms C can be said to have been taken into account in paragraph 12 to the extent that the petitioner would be able to maintain contact with any friends he may have made by electronic means. If he genuinely wanted to pursue any relationship with Ms C then that could be done outwith the UK.

[60] Standing these considerations, I conclude that the respondent was justified in concluding that a decision to return the petitioner to India was not a disproportionate interference with his rights under article 8 and there were no exceptional circumstances present in the information provided to the respondent which would justify any outcome different to that arrived at under the rules. I consider that the respondent gave sufficient consideration to the petitioner's rights to respect for his family and private life and was entitled to refuse leave to remain. I am of the view that there was no proper basis for any conclusion that the petitioner's article 8 rights outweighed the legitimate interests in refusing leave to remain to the petitioner who was here illegally.

[61] In addition, I consider that in all the circumstances the respondent was entitled to certify that the petitioner's claim was clearly unfounded. There were proper grounds for being "reasonably and conscientiously satisfied" that the claim must fail.

[62] I will therefore sustain the respondent's pleas in law, repel those of the petitioner and refuse the petition.