BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?

No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!



BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MS v The Advocate General for Scotland [2016] ScotCS CSOH_160 (11 November 2016)
URL: http://www.bailii.org/scot/cases/ScotCS/2016/[2016]CSOH160.html
Cite as: [2016] ScotCS CSOH_160

[New search] [Help]

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 160

 

P803/15

OPINION OF LADY WOLFFE

In the Petition of

MS

Petitioner

against

THE ADVOCATE GENERAL FOR SCOTLAND

Respondent

Petitioner:  Bovey QC, McGuire;  Drummond Miller LLP

Respondent:  Webster;  The Advocate General for Scotland

11 November 2016

Introduction
[1]        The petitioner seeks to remain in the UK and has applied for leave to remain (“LTR”).  By letter dated 4 June 2015 (“the Decision Letter”) the Secretary of State for the Home Department (“the SSHD” or “the Secretary of State“) refused to treat the petitioner’s further submissions as a fresh claim;  she rejected his application based on family and private life within the Immigration Rules (“the Rules”);  and she also refused his application outwith the Rules.  This is a petition for Judicial Review of certain parts of the Secretary of State’s Decision Letter. 

 

Background
[2]        The petitioner is a citizen of Pakistan.  He arrived in the United Kingdom on 15 April 1998.  He claimed asylum the same day and was granted temporary admission.  The petitioner’s claim for asylum remained undetermined for six years, until he withdrew it in about 21 June 2004.  At that time the petitioner acquired a right to reside in the United Kingdom, following his marriage to a Spanish citizen.  He was issued with an EEA residence permit, valid until 21 June 2009 (“the EEA residence permit”). 

[3]        On 2 July 2012 the petitioner applied for indefinite leave to remain (“ILR”) in the United Kingdom on the basis of residency for a period of 14 years, and which was the required period for a person to be granted ILR (“the petitioner’s first application for ILR”).  On 12 July 2012 the period of presence required for the purpose of ILR was extended to 20 years.  On 20 August 2012 his application for ILR was refused.

[4]        On 18 September 2012 the petitioner made a further application for ILR (“the petitioner’s second application for ILR”).  That application was refused on 23 September 2013, with a right of appeal.  His appeal was heard by an immigration judge on 28 January 2014 and was dismissed on 10 February 2014.  The petitioner sought permission to appeal against the immigration judge’s decision to the First‑tier Tribunal (“FtT”) on 19 February 2014 but was refused permission to appeal on 30 April 2014.  The petitioner’s further application for permission to appeal on 12 May 2014 was refused on 11 June 2014.  His appeal rights were exhausted on 11 June 2014. 

[5]        On 18 July 2014 the petitioner was detained working in Tain without authority to do so.  Representations were made on the petitioner’s behalf on 4 August 2014 but were rejected in a decision dated 8 September 2014 (“the petitioner’s first fresh claim representations”).  The petitioner brought a Judicial Review to challenge that decision in about October 2014 (“the first Judicial Review”).  During the currency of those proceedings, the petitioner married and, as those matters could not be considered as part of the first Judicial Review process, he had his petition dismissed on the day of the first hearing, on 6 May 2015. 

 

Characterisation of the Different Periods of the Petitioner’s Presence in the United Kingdom
[6]        The petitioner entered the UK on 15 April 1998 and has been present in the UK since then.  The parties differed as to the characterisation of his status from time to time, that is, whether it was lawful, unlawful or precarious.  The question of characterisation is relevant in two respects:  first, because of the Strasbourg jurisprudence concerning family or private life established while one’s immigration status was precarious, and secondly because of the statutory disregard in Part 5A of the 2002 Act for any rights accrued (for the purposes of Article 8) during a period of unlawful or precarious residence.  The parties divided the petitioner’s presence in the UK into three periods, as follows: 

(a)        1998 to 2004:  Temporary admission:  The petitioner arrived in the UK on 15 April 1998.  He claimed asylum on arrival and he was granted temporary admission the same day.  His application for asylum was undetermined for six years, until it was withdrawn on 21 June 2004. 

(b)        2004 to 2009:  Marriage to an EEA national:  The petitioner married a Spanish national on 21 June 2004.  As the spouse of a national of a Member State of the EU he had certain rights associated with the free movement of person afforded to EU citizens.  As a consequence the petitioner was granted his EEA residence permit valid until 21 June 2009. 

(c)        2009 to present:  As noted above, at paragraph [4] to [5], after the petitioner’s EEA residence permit expired, he made two applications for ILR and he exercised the appeal rights associated with the second application for ILR.  He also submitted the first further representation and sought Judicial Review of the Secretary of State’s rejection, which proceedings were insisted on for a period of six months. 

[7]        Mr Bovey argued that periods (a) and (b) were lawful and only periods (a) and (c) were precarious.  Mr Webster argued that only period (b) was lawful, but even then it was precarious.  Mr Webster argued that periods (a) and (c) were precarious and unlawful.  To the extent that there was agreement, it was that the petitioner’s status in periods (a) and (b) were precarious.  The parties’ principal disagreement was as to his status in period (b). 

 

Decision Under Challenge
[8]        After dismissal of the first Judicial Review, the petitioner made further representations seeking to have these treated as a fresh claim and to be granted LTR on several bases within  the Rules;  and otherwise to be granted LTR outwith the Rules.  By a decision dated 4 June 2015 (“the Decision Letter”) the Secretary of State refused to treat his claim as a fresh claim and refused his application under and outwith the Rules.  It is the Secretary of State’s determination of those matters that is the subject matter of this petition. 

 

The Further Submissions and Supporting Documentation
[9]        The petitioner’s agents’ letter to the Further Submissions Unit of the Home Office dated 8 May 2015 (lodged as 6/2) identified (at page 3) what was said to be new material.  This was the information under the rubric “relationship”, and which narrated that the petitioner and his partner had been in a relationship since 2012;  that this had been conducted initially on a long‑distance basis but they began residing together on a permanent basis on 16 June 2014.  While they had planned to marry on 8 August 2014, this had not taken place due to the detention of the petitioner the preceding month after he had been found working illegally.  It was also stated that the petitioner and his wife (whom I shall refer to as “KI”) had married on 12 December 2014 in Edinburgh, and had resided together as man and wife since then.  Details of the various addresses where they had resided were provided.  It was also stated (on page 2 of 6/2) that the petitioner and his wife intended to live together permanently.

[10]      The Decision Letter sets out the documentary material provided.  Its summary of the new material, which is not suggested to be incorrect, is as follows: 

“You have submitted a letter from your representatives, Drummond Miller LLP, dated 08 May 2015.  You have married a British citizen on 12 December 2014 and submit your application on the basis of your family and private life. 

 

You claim a decision to refuse you leave to remain in the UK would breach your rights under Article 8 of the European Convention on Human Rights (ECHR).  You claim to be in a genuine and subsisting relationship and there are insurmountable obstacles to your family and private life continuing outside of the United Kingdom.”

 

[11]      It was noted that the petitioner had submitted the following documents: 

 

“ 1)         An email of support from your wife, [KI] dated 08 May 2015;

 

2)         An updated letter of support from [FI] and [AI] (your wife’s adult children);

 

3)         2 original bank statements for Ms [KI] dated 28 April 2015 and 01 May 2015;

 

4)         An annual mortgage statement from ‘The Mortgage Works’ dated 31 October 2014 in the names of Mr [II] and Mrs [KI];

 

5)         Principle statement of terms and conditions of employment from X‑Clusive Gaming in relation to a permanent part‑time contract dated 10 February 2015 addressed to Mrs [KI] …; 

 

6)         Original Bolton Council tax bill issued on 29 January 2015 in the name of Mrs [KI];

 

7)         Original Edinburgh council tax bill issued on 13 November 2014 in your name and Ms [KI];

 

8)         Photocopy of photograph page of UK passport and photograph side of driving license for [KI]; 

 

9)         Original extract of an entry in a Register of Marriages for [KI] and yourself;

 

10)       Letter and contract of employment from Brennand Schoolwear Ltd dated 01 May 2015 for Ms [KI] along with 13 wage slips dated between 26 February and 21 May 2015;

 

11)       A copy of your solicitors letter from 04 August 2014;

 

12)       Original P60 for year ending 5 April 2015 for [KI];

 

13)       9 wage slips from Remnant Kings Central Ltd dated between 25 September 2014 to 01 January 2015;

 

14)       Various photographs.” 

 

The Decision Letter
Determinations within the Rules

[12]      After noting this material, the Decision Letter continued:

 

“It has been decided that the decision of 23 September 2013, upheld by the Immigration Judge on 10 February 2014, should not be reversed and you do not qualify for asylum, Humanitarian Protection, limited Leave to remain on the basis of your private or family life;  or Discretionary Leave for the reasons above.

 

All your submissions have been considered previously.  They are not significantly different from the evidence that has previously been considered and therefore, they do not amount to a fresh claim.” (Emphasis added.) 

 

[13]      The Secretary of State determined that the petitioner’s submissions did not amount to a fresh claim.  She also required to consider the petitioner’s application from the perspective of Article 8 on the basis of his family and private life in the UK, under Appendix FM (qua partner and separately qua parent), and under paragraphs 276ADE(1) to DH of the Rules.  If the petitioner failed on those terms, the Secretary of State still required to consider for the purpose of Article 8, now considered outwith the Rules, whether there were “exceptional circumstances” to justify a grant of LTR. 

[14]      After stating the conclusion that the petitioner’s further representations did not amount to a fresh claim, the Decision Letter continued as follows:  

“Submissions that have not previously been considered but which do not create a realistic prospect of success

 

Article 8 – Family and private life based submissions

 

Your application has been considered on the basis of your family and private life in the UK under Appendix FM and to paragraphs 276ADE(1) – DH of the Immigration Rules, and outside the Rules on the basis of exceptional circumstances. (Emphasis added.) 

 

Family Life

 

Partner

 

You have stated that you are in a relationship with your partner, [KI].” 

 

(i) Determination of Family Life Application qua Partner

 

[15]      After setting out paragraphs R-LTRP.1.1, EX.1 and EX.2 of Appendix FM, the Decision Letter continued: 

“You do not meet the requirements of EX.1 and it does not apply in your case. 

 

You have provided a statement from your wife, [KI], in support of your application in which she claims that she is not in a position to move to Pakistan.  This is a statement only and we have not been provided with any substantive evidence to support that she is not in a position to relocate to Pakistan and that there are insurmountable obstacles to doing such.  (Emphasis added.)

 

You married on 12 December 2014 both knowing the precarious nature of your immigration status.  It is considered on the balance of probabilities and in the absence of any evidence to the contrary you are in a genuine and subsisting relationship, although you have provided a lack of evidence to support that you are cohabiting.  You have provided the mortgage statement for your wife which remains in hers and her ex‑husbands name.  You have provided 2 recent and original bank statements for your wife, which are in her name only.  You have provided a copy of a council tax bill for the property in which you currently reside however, this again is only in your wife’s name.  You have only produced one document, a council tax bill from City of Edinburgh council from November 2014 which is in both of your names.  There is a lack of evidence to support that you are currently cohabiting.  Therefore we will give consideration as to whether there are insurmountable obstacles to your family life continuing in Pakistan.  (Emphasis added.) 

 

It is noted your wife, [KI], is a British citizen.  You have submitted her UK passport and driving licence of which photocopies have been taken.  As your wife is a British citizen she is eligible to apply for a Pakistani visa on account of her relationship with you.   Consequently, there are no known barriers to her gaining entry to Pakistan. 

 

Both Ms [KI] and yourself speak English, which is the national language in Pakistan.  Therefore, it is considered that Ms [KI] will be able to communicate effectively in Pakistan so will not face any language barrier. 

 

It is noted both Ms [KI] and yourself have worked in the UK.  You have provided various documents in support of your wife’s employment history in the UK.  It is considered any skills and work experience you have both gained in the UK could assist you in gaining employment on return to Pakistan. 

 

By your own account you have family in Pakistan including your Mother, two sisters and three brothers who would help you reintegrate into society upon return. 

 

It is noted Ms [KI] has two adult children.  You have submitted a statement of support from your wife’s adult children, [FI] and [AI].  They state they cannot consider their Mother leaving the UK in order to pursue their relationship.  They claim they are a close knit family and the distance would demolish the main supporting unit to their strong family unit.  This is a statement only and no evidence has been submitted which would suggest that the adult children are financially dependent on their Mother or that their relationship extends beyond normal emotional ties.  It is considered any relationship can be maintained via modern communication methods for example telephone, email and Skype. 

 

Furthermore, you only briefly had a right to remain in the UK when your then wife was exercising EEA treaty rights, there is no subsequent evidence beyond the date of issue of the residence permit in 2004.  It is therefore considered the majority of your private life in the UK has been developed when you had no valid leave to remain and when your immigration status was precarious.  It would therefore be responsible to assume that you and Ms [KI] have considered relocation to continue your relationship. 

 

Taking into consideration all of the above points, it is considered that there are no insurmountable obstacles to you continuing your family life in Pakistan. 

 

Additionally, when in Pakistan you could pursue the correct avenue and apply for appropriate entry clearance to return to the UK as the husband of the British citizen. 

 

Consequently, it is not accepted that you meet the requirements of paragraph R‑TRP.1.1.(d)(iii) [sic]. 

 

Refusal Paragraph under Partner Rules

Your application on the basis of your family life as a partner is therefore refused under paragraph D-LTRP.1.3 with reference to R‑LTRP.1.1.(iii) of the Immigration Rules.” 

 

(ii) Determination of Family Life Application qua Parent

[16]      The Decision Letter then set out paragraphs 276ADE(1) and refused the petitioner’s application qua parent.  The Secretary of State’s refusal of the petitioner’s application qua parent, under R‑LTRPT.1.3 is not challenged in these proceedings. 

Determination of Application outwith the Rules

[17]      Having refused the petitioner’s application within the Rules, the Secretary of State proceeded to consider the petitioner’s application outwith the Rules.  The Secretary of State’s reasons for refusal on this ground are as follows:

“Exceptional Circumstances

 

It has also been considered whether your application raises 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 a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules. 

 

You have not raised any such exceptional circumstances, so it has been decided that your application does not fall for a grant of leave to remain outside the rules. 

 

Careful consideration has been given to whether your submissions amount to a fresh claim.  Although your submissions have been subjected to anxious scrutiny, it is not accepted that they would have a realistic prospect of success before an Immigration Judge in light of the reasons set out above, in particular; 

 

 

In accordance with the published Home Office Asylum Policy Instruction on Further Submissions, your human rights claim has been carefully reconsidered on all the evidence available, including the new further submissions and the previously considered material.  I have also taken into account any more recent relevant caselaw and any country information that may apply to your current situation. 

 

I have concluded that your submissions do not meet the requirements of Paragraph 353 of the Immigration Rules and do not amount to a fresh claim.  The new submissions taken together with the previously considered material do not create a realistic prospect of success.  This means that it is not accepted that should this material be considered by an Immigration Judge, that this would result in a decision to grant you asylum, Humanitarian Protection, limited leave to remain on the basis of your family and private life or Discretionary Leave for the reasons set out above. 

 

I have decided that the decision of 23 September 2013 upheld by the Immigration Judge on 10 February 2014 should not be reversed.” 

 

[18]      While parties did not analyse matters in this way, it may be helpful to identify the discrete determinations in the Decision Letter, as follows: 

1.   Determination that the Petitioner’s further submissions did not amount to a fresh claim for the purposes of Rule 353 of the Rules; 

2.   Determination that he did not satisfy the requirements of the partner category under R-LTRP1.1 of Appendix FM; in particular, that, on the material presented, he had not demonstrated the  “insurmountable obstacles” element in EX.1 of Appendix FM, as applied by paragraph  (d)(iii) of R-LTRP1.1, and as that phrase is defined in EX.2 (“the partner decision within the Rules”);

3.   Determination that he did not satisfy the parent category under R-LTRP1.3 of Appendix FM of the Rules; 

4.   Determination that he did not qualify on private life grounds under paragraph 276ADE(1) - DH of Appendix FM to the Rules;  and

5.   Determination that on the material presented the petitioner failed to demonstrate that there were exceptional circumstances such as to warrant the grant of LTR outwith the Rules for the purposes of respecting his Article 8 rights, as provided for in Rule 353B of the Immigration Rules (“the determination outwith the Rules”). 

[19]      The parties’ analyses of the stages in the Decision Letter, do not correspond with the several determinations I have set out.  They did not agree with each other in their respective analyses.  For his part, Mr Bovey suggested there were three stages:  (i) the petitioner’s application within the Rules;  (ii) the petitioner’s application outwith the Rules for the purpose of Article 8;  and (iii) whether there were “exceptional circumstances” for the purpose of Rule 353B of the Rules.  Mr Bovey did not explain how his stages (ii) and (iii) related to one another, or the statutory or other provisions that governed (ii).  Mr Webster disagreed with this three‑stage analysis.  (To assist in distinguishing the parties’ submissions on the number of stages, I shall use roman numerals to refer to Mr Bovey’s analysis of the number of stages (eg stages (i), (ii), and (iii)), and Arabic numerals to refer to Mr Webster’s stages.)  Mr Webster’s position was that Mr Bovey’s stages (ii) and (iii) were in reality the same stage.  On Mr Webster’s approach this was simply stage (2), being the determination outwith the Rules.  Mr Webster’s “stage (1)” encompassed all of the determinations within the Rules. 

[20]      It seems to me that there are several determinations within the Rules, of a sequential character, corresponding to (1) and (4) above.  Only determination (5) seems to me to be a decision “outwith the Rules” and a decision outwith the Rules is only necessary if an applicant fails to establish any grounds within the Rules.  Given the parties’ differences, I shall refrain from referring to the “stages” other than to record parties’ arguments.  Neither party, in their respective submissions, drew any distinction in respect of those parts of the Decision Letter under challenge and being determinations within the Rules. 

 

Scope of the Petitioner’s Challenge
[21]      The grounds and scope of the petitioner’s challenge to the Decision Letter are not readily discernible from the petition.  The petition contains 37 statements.  However, it contains no headings;  it does not distinguish between factual matters and legal grounds of challenge.  Statements 1 to 11 narrate events in the life of the petitioner as well as certain prior applications or proceedings, relating to the immigration status of the petitioner.  Indeed, the petition does not particularly identify which of the several determinations within the Rules is under challenge.  In some of the statements (12 to 31), individual parts of the Decision Letter are identified and criticised though, in the main, without relating those criticisms to a legal ground of challenge or identifying the particular determination challenged, and generally also without reference to the relevant provisions in the Rules.  The thrust of the criticisms is that the Secretary of State failed to meet the test of anxious scrutiny (not set out) or that, on her assessment, she left relevant matters out of account.  Mr Bovey made little reference to the petition.  I shall follow that approach and deal with the submissions as presented orally at the hearing. 

[22]      Mr Bovey initially indicated that he did not challenge determinations (3), (4) and (5) identified in paragraph [18] above.  However, it is fair to say that Mr Bovey’s position evolved over the course of the five days which this hearing ultimately occupied.  While this Judicial Review was originally set down for two days, it occupied five days in total, being heard on 14 and 15 January, 2 March, 31 May and 1 June 2016.  As a consequence, the arguments in this petition were presented on three occasions, spread over nearly six months.  Additional cases and outline submissions were lodged shortly before the second and third resumed hearings (on 2 March and 31 May respectively).  In total the petitioners lodged 35 cases and the respondents 28, although there was some duplication.  (By contrast, I note that only 12 cases were identified in the Statement of Issues lodged by the respondent.)  The foregoing circumstances did not assist parties in focusing their arguments.  As I have Mr Bovey’s final position noted, he appeared also to challenge the determination corresponding to his “stage (iii)”.  I understand this to be to determination (5), as set out in paragraph [18], above.  This is to the determination outwith the Rules.  The petitioner’s two further written outlines both concerned the meaning of “precarious”. 

 

The Applicable Law
(i) Fresh Claims:  Rule 353

[23]      It is here convenient to set out the provisions from the Rules and the 2002 Act, insofar as they were referred to in the Decision Letter, in the pleadings or in the submissions before me.  I set out some of the principles from the settled case law, to the extent that they appeared to be uncontroversial. 

[24]      Rule 353 of the Rules govern what are known as “fresh claims”.  So far as material, Rule 353 of the Immigration Rules provides that: 

“When a human rights or asylum claim has been refused … 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…”

 

The approach to applications under Rule 353 is now well settled.  On a proper construction of the Rule, in determining whether the new submissions amount to a fresh claim, the Secretary of State is required to consider whether there is a realistic possibility of an immigration judge reaching a different view from that which she has reached, ie whether there is a realistic possibility of such a judge deciding in favour of the applicant’s claim. 

If the Secretary of State accepts the submissions, the claim will be granted.  If the submissions are rejected, the Secretary of State must then consider whether the new material is nonetheless significantly different from the previous material and, taken with that previous material, creates a realistic prospect of success.  In respect of limb (ii), the “realistic prospect of success” test in Rule 353 is not a high test.  The prospects need only be “more than fanciful”:  per Laws LJ, paragraph 34 in R (AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855.

[25]      A decision on fresh claim representations also has procedural implications.  If the Secretary of State had determined that the petitioner’s further submissions amounted to a “fresh claim”, her rejection of a fresh claim would trigger rights of appeal to the Immigration and Asylum Tribunal (“IAT”) under section 82 of the Nationality Immigration and Asylum Act 2002 (as amended) (“the 2002 Act”).  If the petitioner’s submissions did not constitute a “fresh claim”, then there is no right of appeal to the IAT under that, or any other, provision.  In that case, the petitioner must proceed by way of Judicial Review proceedings.  Finally, the consequence of the Secretary of State having certified her decision to refuse to grant the petitioner leave to remain (“LTR”) is that there is no in-country appeal. 

 

Fresh Claims:  The Case Law
[26]      The law governing the proper approach to be taken by the courts in challenges to fresh claim decisions is also well settled.  The correct approach to be adopted by the court in a Judicial Review of a decision by the Secretary of State to refuse such a fresh claim may be summarised as follows:

1.         The test to be applied by the court in a judicial review of a refusal to treat further representations as constituting a fresh claim is the Wednesbury test:  Dangol v SSHD [2011] SC 560 at paragraph 7, citing WM (DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraph 9 and FO v The Secretary of State for the Home Department [2010] CSIH 16 at paragraph 22.

2.         The decision remains that of the Secretary of State and the court may not substitute its own decision:  Dangol v Secretary of State for the Home Department [2011] CSIH 20 at paragraph 7. 

3.         The court must ask itself two questions: 

(i)             Has the Secretary of State asked himself the correct question? – That is, whether there is a reasonable prospect of success, viewing matters from the perspective of an immigration judge applying the rule of anxious scrutiny;  and

(ii)            In addressing that question has the Secretary of State satisfied the requirement of anxious scrutiny?  See:  WM (DRC) at paragraph 11, FO at paragraph 22 and Dangol at paragraph 7. 

4.         The Secretary of State’s decision will be irrational if it is not taken on the basis of anxious scrutiny:  Dangol at paragraph 7;  and

5.         Anxious scrutiny means that the decision letter must demonstrate that no material factor that could conceivably be regarded as favourable to the petitioner has been left out of account in the review of the evidence:  Dangol at paragraph 9. 

6.         But anxious scrutiny does not mean the Secretary of State must show undue credulity to the petitioner’s account:  Dangol at paragraph 9.

7.         If, however, the court finds that there has been a failure to exercise anxious scrutiny on the part of the Secretary of State, it is then incumbent upon the court to consider the materiality of any failure to exercise anxious scrutiny.  That is the import of the observations of the Inner House in Ashiq, petitioner, 2015 SLT 306, [2015] CSIH 31, per  Lady Smith at paragraph 23 (commenting on the failure of the Lord Ordinary in that case to go on to consider materiality.)  In those circumstances, the court considers whether the error identified is material (ie if it gives rise to a realistic prospect of success) or it is immaterial (ie because, having regard to all the factors, the case would be bound to fail before an immigration judge).  For the purposes of that consideration, the court makes its assessment on the basis of the material before the decision‑taker.  It does not do so by substituting its own opinion.  It does not decide for itself whether there are reasonable prospects of success. 

 

(ii) Appendix FM of the Rules
[27]      One of the matters the Secretary of State had to consider was whether the petitioner satisfied the requirements for leave to remain on family law grounds as a partner, under paragraph R-LTRP 1.1 (a), (b) and (d) of Appendix FM of the Rules.  This paragraph states: 

“(a)      the applicant and their partner must be in the UK; 

(b)     the applicant must have made a valid application for limited or indefinite leave to remain as a partner;  and either

(d)     (i)         the applicant must not fall for refusal under Section S-LTR;  Suitability leave to remain;  and; 

(ii)        the applicant meets the requirements of paragraphs E-LTRP 1.2-1‑12 and E‑LTRP 2.1;  and

(iii)       paragraph EX.1 applies.”

 

[28]      The Secretary of State accepted that the petitioner met the suitability requirements of paragraph R-LTRP.1.1.(d)(i) and the eligibility requirements of paragraph R-LTRP.1.1(d)(ii).  She then had to determine whether the petitioner met the requirements of paragraph R‑LTRP.1.1.(d)(iii).  This refers to paragraph EX.1 of Appendix FM. 

[29]      Paragraph EX.1 of Appendix FM states: 

“EX.1.  This paragraph applies if: 

 

(a)          (i)       the applicant has a genuine and subsisting parental relationship with a           child who-

(aa)    is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied; 

(bb)      is in the UK; 

(cc)      is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application;  and

(ii)      it would not be reasonable to expect the child to leave the UK;  or

(b)          the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.”

 

[30]      Paragraph EX.2 defines “insurmountable obstacles” to mean: 

“the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”

 

[31]      As there is no challenge to the Secretary of State’s determination of the petitioner’s application qua parent under paragraph 278ADE(1) of Appendix FM of the Rules, I do not set out those provisions. 

 

(iii) Part 5A of the 2002 Act
[32]      In this case the petitioner’s spouse is a UK citizen.  As a consequence, some of the sections in Part 5A of the Nationality, Immigration and Asylum Act 2002, brought into force on 28 July 2014, are also relevant.  While in the answers there are two references to section 117B(1), 40 and 5 (sic) I assume this is meant to be subsections 117B(1)(4) and (5) of the 2002 Act. 

[33]      Part 5A is headed up “Article 8 of the ECHR:  Public interest considerations”.  Part 5A applies where a court or tribunal is required to determine whether a decision made under the Immigration Act “breaches a person’s right to respect for private life”:  section 117A(1)(a).  By section 117A(2) a court or tribunal is required when considering the “public interest question” to have regard in all cases to the considerations in section 117B.  (The direction to consider section 117C is not relevant in this case.)  The “public interest question” means the question whether an interference with a person’s right to respect for private and family life is justified under Article 8(2):  section 117A(B). 

[34]      The only considerations in section 117B referred to in submissions were those in subsections 117B(4) and (5), which provide as follows:   

" (4)   Little weight should be given to –

(a) a private life, or

(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5)   Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious."

 

Petitioner’s Submissions
The Petitioner’s Challenge to Determination within the Rules

[35]      In his first submission, Mr Bovey explained that only stages (i) and (ii) – on his analysis – of the Decision Letter were challenged.  There was no challenge to his stage (iii).  Nonetheless he said it was necessary to go through the part of the Decision Letter relating to his stage (iii) (ie determination (5), the determination outwith the Rules), in order to understand the Decision Letter.  A decision under Rule 353B was, he said, a long-stop against removal:  he cited paragraph 24 of Qongwane and Others v Secretary of State for the Home Department [2015] 1 NLR 213.  So far as I understood Mr Bovey’s submissions, he stated that Rule 353B was not a relevant consideration for his stages (i) and (ii).  In terms of Rule 353B, “exceptional circumstances” was narrowly defined.  It had no relevance to the earlier determinations, under the Rules.  The first error he identified was what he said was a conflation of the Rule 353B factors with the determinations under the Rules that were under challenge.  He argued that circumstances relevant to decisions under the Rules were broader than what was set out in Rule 353B.  So far as I have him noted, this criticism was based on the reference to “exceptional circumstances” at the end of the paragraph which I have set out at paragraph [14] above.  The test under EX.1 and EX.2 was “exceptional circumstances”. 

[36]      Mr Bovey referred to the second paragraph of the petitioner’s agent’s further representations letter to the Home Office, dated 8 May 2015, and lodged at 6/2.  This stated: 

“We wish to make further representations on behalf of our client with reference to paragraph 353 of the Immigration Rules and would ask that you look at this case outwith the Immigration Rules and in line with Article 8 ECHR if necessary.” 

 

This, Mr Bovey said, engaged both of his stages (i) and (ii).  He noted, from page 3 of the further representations letter, that the new matters included the fact that the petitioner and KI had married, and that they had lived together, first in Edinburgh and thereafter in Bolton.  Mr Bovey then referred to those parts of the Decision Letter I have set out above in paragraph [15].  Turning to page 5 of the Decision Letter, Mr Bovey argued that the first sentence in the paragraph dealing with this material (which is the second paragraph set out above, at para [12]), was incorrect.  This material had not been considered “previously”. 

[37]      In respect of his stage (i), which corresponds to determinations within the Rules, Mr Bovey submitted that the test to be applied was whether the Secretary of State could reasonably hold that the petitioner’s case had no reasonable prospects of success before an immigration judge.  The Secretary of State had to apply “anxious scrutiny”.  Applying that test of anxious scrutiny, Mr Bovey argued that one or more of the following matters demonstrated a lack of “anxious scrutiny” on the part of the Secretary of State.  This was presented as the legal basis for his criticisms of the Decision Letter’s determination of the petitioner’s fresh claim and the decision under paragraph EX.1 of Appendix FM.  

[38]      The first matter said to demonstrate a want of anxious scrutiny was what Mr Bovey said was an erroneous distinction drawn between “statements” and “evidence”.  At the point where the Secretary of State referred to the statement from the petitioner’s wife, [KI], to the effect that she was not in a position to move to Pakistan, the Secretary of State had effectively discounted this, stating that there was “no substantive evidence” to support this position.  (See the passage highlighted in para [15] above.)  This same error was repeated, a few paragraphs later in the Decision Letter, in respect of the statement from the petitioner’s wife’s daughter.  Mr Bovey noted the terms of paragraph 14(2) of the Tribunal Procedure Rules that a statement is admissible evidence before the Tribunal.  There was no exclusionary rule against this kind of evidence at the tribunal stage.  The Secretary of State had to bear in mind the wide scope of what might be admitted before an immigration judge.  This was not an intelligible or proper way to deal with this material.  The Secretary of State had failed to take into account relevant material, and this demonstrated a want of anxious scrutiny.

[39]      Next, and in reliance on Mirza v SSHD 2015 SC 572, especially paragraph 20 thereof, Mr Bovey argued that the Secretary of State had committed the same error of law identified in that case, namely of leaving out of account the position of the petitioner’s British wife that she was not in a position to move to Pakistan.  

[40]      In relation to his second criticism, he argued that the Secretary of State had simply disregarded the wife’s position, as if something more was required than knowledge of her position.  As Mr Bovey put it, the court could not be satisfied that the statement had been taken into account and anxious scrutiny applied. 

[41]      Mr Bovey then referred to paragraphs 2 to 4, 6 to 7, 13 to 15 and 21 to 22 of SSHD v Ting Tao an unreported decision of the Upper Tribunal (“the UT”), dated 8 September 2015 (IAC) (IA/05681/2015).  There was no particular passage founded upon, in terms of supporting the argument Mr Bovey was advancing, but I was invited to note that the First‑tier Tribunal judge’s decision had been described on appeal as “generous” and not to discount the possibility that another immigration judge might also be generous.

[42]      Mr Bovey next referred to Agyarko v SSHD [2015] EWCA Civ 440, an unreported decision of the Court of Appeal dated 6 May 2015.  Mr Bovey referred to the observations in paragraphs 23 and 24, to the effect that the phrase “insurmountable obstacles” had to be read in a sensible and practical, rather than a literal, way.  I was also asked to note the observation in that case that, while “insurmountable obstacles” was the precondition that had to be satisfied under section EX.1 of Appendix FM to the Rules, before any leave to remain could be granted, at the stage of an assessment for the purposes of Article 8 outwith the Rules, that criterion ceased to be an absolute criterion but was simply one factor among many.

[43]      Mr Bovey then turned to SSHD v Ibinola, ((2014) UKUT (IAC) (IA/11848/2014)) an unreported decision of the Upper Tribunal refusing the appeal by the Secretary of State against the decision of the FtT, in which the applicant’s appeal had been allowed on the basis that there were insurmountable obstacles to her husband and children returning to Nigeria with her.  Mr Bovey referred to paragraphs 3, 7 to 9, and 15 to 16.  Ibinola concerned a Nigerian women, with a British husband and several young children.  The applicant’s husband was financially responsible for the children.  His ability to provide for them would be severely compromised if he left the UK.  The case appeared to turn very much on its facts and the reasoning is shortly stated.  In response to a question as to what the court should take from this decision, Mr Bovey suggested that it illustrated that in order to succeed under paragraph EX.1 it was not necessary for it to be shown that a British spouse could not go to the petitioner’s country  of origin.  The unwillingness of the British spouse was, it was said, not fatal to a claim under EX.1. 

[44]      I was also referred to the unreported UT case of SSHD v Alexander, dated 21 August 2015 (UKUAT (IAC) (AA/09530/2014), (to paragraph 16 (only)), simply as an example of a favourable decision under Appendix FM.  Mr Bovey also referred to the decision given by Lord Reed in the Inner House in the case of KBO v SSHD, unreported, dated 1 April 2009.  This was not, in fact, to note any of the reasoning by the court in that case, but simply to note (at paragraph 5) the quotation from paragraph 17 of Lord Bingham in the House of Lords case of Razgar v SSHD [2004] 2 AC 368.  Razgar, it was said, was “the catechism” for what was required in Article 8 cases.  It also showed that removal from the UK involved Article 8 in a domestic context.  (I did not understand Mr Webster to argue to the contrary.)

[45]      At this point Mr Bovey referred to paragraph 25 of the petition.  This concerned “exceptional circumstances”.  Mr Bovey appeared at this point to shift his focus to the treatment of the petitioner’s application outwith the Rules.  Certainly Mirza v SSHD 2015 SC 572, to which he next turned, concerned a successful challenge to the Secretary of State’s refusal of a claim outwith the Rules.  Mr Bovey simply referred to the first part of paragraph 20 thereof, which recorded the court’s finding that the Secretary of State had proceeded on the basis that the petitioner’s wife in that case would go to live with the appellant in Pakistan.  In ignoring the rights flowing to Mrs Mirza, who was a citizen of the UK, the court had held that there had been an error of law.  Mr Bovey suggested that the Secretary of State had fallen into the same error here.

[46]      Mr Bovey next referred to Beoku-Betts v SSHD [2009] 1 AC 115, especially paragraphs 5, and 41 to 43 thereof, as vouching the proposition that the impact of a decision on all of the relevant family members may relevantly be taken into account.  Notwithstanding the age of that case, and the legislative changes they observed that there was “only one family life” remained. 

[47]      Mr Bovey accepted that by virtue of section 117B(5) of the 2002 Act ,“little weight” should be given to the private life established by a person at a time when his immigration status is “precarious”.  However, in his reply, Mr Bovey suggested that section 117B(4) and (5) was simply a starting point and did not bind the decision taker.  Mr Bovey argued that this was a “far cry” from attaching “no weight”.  Furthermore, in relation to the petitioner’s claim outwith the Rules, the Secretary of State’s analysis was flawed.  She proceeded on the basis that her consideration under the Rules sufficed in terms of the assessment of the position outwith the Rules.  It was said that her consideration under the Rules was “segmented” by the requirement of Appendix FM.  In other words, under the Rules she had considered as separate matters the position of the petitioner’s wife and the duration of his stay in the UK.  However, when she came to consider matters outwith the Rules she had failed to reconsider these individually, or to consider them cumulatively, or with other features that might be favourable to the petitioner.

 

The Length of the Petitioner’s Presence in the UK

[48]      Under reference to statements 28 and 29 of the petition Mr Bovey then turned to the issue of the length of the petitioner’s stay in the UK.  This engaged Rule 353B(iii), which referred to the length of time a person was in the UK.  The petitioner had been present in the UK for 17 years.  On Mr Bovey’s approach the petitioner’s residence during 11 of those years was lawful, and six of those had been spent awaiting the determination of the original asylum application.  Here, the Secretary of State had stated that she had given “no weight” to this matter.  It was, Mr Bovey said, inconceivable that no reasonable immigration judge would fail to give this some weight.  There was a failure to weigh this in favour of the petitioner.  He referred to the passage in the speech of Lord Bingham at page 1189A to E in EB (Kosovo) v SSHD [2009] 1 AC 1159.  This was for part of the observations that the issue of delay in the determination of the decision-making process in immigration matters was not necessarily irrelevant to the decision.  In that case Lord Bingham had observed that the delay may be relevant in three ways.  Mr Bovey referred to the first two of these:  the first being the development of deeper roots in the community, and secondly, that even in the context of a relationship established during a period when the immigration was “precarious”, nonetheless, as the delay stretches to months and years, the tentative or impermanent sense of that relationship will fade.  

[49]      Mr Bovey also referred to paragraphs 1, 2, 3, 6, 9, 18 and 19 to 25 of the decision of the Upper Tribunal in Benyoucef v SSHD ((AA/13844/2009)), as an example of delay being a factor in an extreme case.  In that case the applicant had been in the UK for 19 years, for 14 of which he had been awaiting an asylum decision. 

[50]      Mr Bovey then turned to Jeunesse v The Netherlands [2015] 60 EHRR 17 (referring to paragraphs 100, 103 and 102) and to BV v Sweden (page 9).  He argued that the ECtHR’s observations in those cases (that one could not build (or have an expectation of) family life for the purpose of Article 8, where that family life was established while one’s immigration status was precarious), were made in cases where there was no unexplained or prolonged delay.  Those cases were, he said, free of the delay experienced here.  Accordingly, those decisions fell to be distinguished.  The case of AHM v UK (No 67792/10) was offered as an illustration of a case involving delay. 

 

The Emerging Issue of when a Person’s Immigration Status was “precarious”
[51]      Mr Bovey’s positon was that, apart from the period when the petitioner had rights derived from his first wife, an EEA national, the petitioner’s stay was precarious.  However, his position was that the petitioner’s immigration status was nonetheless “lawful” during the six years he had waited for the Secretary of State to issue a decision on his asylum claim (that was never issued), and during the period he was in the United Kingdom on the basis of the EEA residence permit.  Cumulatively, that was not a brief period and, in leaving that out of account, the Secretary of State was irrational and proceeded in a manner an immigration judge would not.  In failing to have regard to what an immigration judge could conclude, the Secretary of State left out of account relevant matters.  It was wrong of the Secretary of State to say that this was to be accorded “no weight” and that no immigration judge would give any credit for this. 

[52]      At this point Mr Bovey returned to the fresh claim determination.  He again referred to 6/2, at pages 2 and 3.  The new matters were the petitioner’s marriage;  that at the time of the first further representations (in August 2016) the petitioner and [KI] had only been co‑habiting for two months.  In addition, the petitioner and [KI] had resided together as man and wife and had then moved to Bolton to be closer to [KI’s] adult children and family. 

 

Miscellaneous Criticisms
[53]      Mr Bovey then referred to a number of other criticisms.  It was accepted that these did not amount to free‑standing grounds of challenge.  These criticisms were: 

“(i) The Secretary of State asserts that ‘the absence of criminality alone does not add enough weight to justify a grant of leave’.  The Secretary of State in so stating acknowledges the absence of criminality adds weight to the petitioner’s case (albeit not enough).  An Immigration Judge might well take a different view of the weight to be given to that matter, where the period concerned amounts to in excess of 17 years.  In failing to so recognise the Secretary of State erred in law. 

 

(ii) In any event an Immigration Judge being as favourable as possible to the petitioner would not inevitably reach the same conclusions, particularly in respect of the petitioner working when not authorised to do so.  Reference is made to ZH (Bangledesh) v SSHD [2009] EWCA Civ 8.” 

[54]      Under reference to paragraphs 2.3.4 and 2.3.5 of the Home Office Country Guidance for Pakistan (No 6/11) Mr Bovey argued that English was not a national language of Pakistan, it was a language of officialdom.  (This criticism corresponds to statement 18 in the petition.  ) 

[55]      Mr Bovey then referred to statements 19, 20 and 21 of the petition.  KI’s children were not forisfamiliated.  Under reference to statement 22, which referred to the passage in the Decision Letter about maintaining communications via modern means, Mr Bovey argued that the Secretary of State failed to exercise anxious scrutiny.  She never moved beyond her own views regarding long distance relationships. 

[56]      He next turned to the reference in the Decision Letter to “correct avenue”.  This was to overlook that an application via Appendix FM is a “correct avenue”, too.  He referred to ZH v SSHD especially paragraph 17 thereof from the Opinion of Sedley LJ.  Skipping back to statement 21 of the petition, he argued that even unlawful residence was relevant to Article 8. 

[57]      Finally Mr Bovey noted that as the Secretary of State certified her decision, the petitioner is not entitled to appeal against that decision whilst in the United Kingdom.  The only remedy available to the petitioner was to bring a Judicial Review to this court.  In addition, the Secretary of State had also concluded the petitioner had not made a fresh claim for asylum on Human Rights grounds.  The test for both certification and whether a fresh claim has been made are assessments of the petitioner’s prospects of success if his case were considered by an immigration judge.  The test for whether the petitioner has made a fresh claim (realistic prospect of success) was, Mr Bovey argued, very marginally higher than the test for certification (no prospects of success).  If the petitioner succeeds in securing reduction of the “fresh claim” decision the certification will inevitably also fall to be reduced. 

[58]      In summary, Mr Bovey’s position was that the Secretary of State had singularly failed to go beyond her own view of the facts and therefore has not applied anxious scrutiny.  An immigration judge being as favourable as possible to the petitioner without being perverse would be entitled to conclude the petitioner should be granted leave to remain.  In failing to conclude this, the Secretary of State erred in law.  Et separatim where a person (a) has lived in the United Kingdom for 17 years;  (b) has an accepted on‑going genuine and subsisting relationship with a British citizen, (c) where the British citizen has an 18 year old child, (d) who has moved to Scotland to be with him, and (e) with the consent of the Secretary of State has moved back to Bolton as a couple as well as all of the other factors relevant in this case, the petitioner is entitled at least to be told in a lawful decision why he is to be removed.  Mr Bovey said that has not occurred in the Decision Letter. 

 

Submissions in Reply on Behalf of the Secretary of State
[59]      Mr Webster’s reply on behalf of the Secretary of State consumed about four days in total, starting before lunch on 17 January, continuing on 2 March, on 31 May and concluding in the afternoon on 1 June 2016.  Mr Webster began by summarising what he saw as the main points relied on for the petitioner, which were his marriage to [KI] and the length of time he has been in the UK.  In relation to the latter, he went through elements of the background, which I have set out above at paragraphs [2] to [5].  On his analysis, the only lawful period of residence for the petitioner was during the currency of the petitioner’s EEA residence permit, from 2004 to 2009.  The remainder of the petitioner’s presence in the UK was, he said, properly characterised as “precarious”.  Parts of that presence might also be said to be unlawful.  

[60]      Mr Webster next turned to consider certain amendments to the Rules and the 2002 Act, including inter alia the introduction of Part 5A (“Article 8 of the ECHR: Public Interest Considerations”), and to look at what they replaced. It is not necessary to repeat that submission in full here, as the thrust of it was that pre-Part 5A cases had to be treated with caution.  Mr Webster also explained that the purpose of the amendment had been to embed within the Rules themselves the relevant considerations and balancing of factors, as required for Article 8-compliant decision making.  Reference was made to section 117A(2), (3);  to section 117B (1), (4) and (5) and to the definition of “qualifying partner” in section 117D of the 2002 Act.  Reading section 117B short, which set out the public interest considerations applicable in all cases, “little weight” was to be attached to private life or a relationship formed with a qualifying partner established at a time when the applicant was in the UK unlawfully (section 117B(4)) or to private life where a person’s immigration status was “precarious” (section 117B(5)). 

[61]      Mr Webster also referred to the introduction of Appendix FM to the Rules and to the observations on those rules in SSHD v Congo [2015] EWCA Civ 387 at paragraphs 3, 5, 9 to 11 and 14 to 16.  Mr Webster suggested that if the Rules reflected the Strasbourg jurisprudence, and the Rules stipulated that little weight was to be attached to family or private life established while the immigration status was “precarious”, then the prospects of there being a meritorious case surviving the rules was going to be (as he put it) “pretty thin”. 

[62]      Mr Webster characterised the decision taking under the Rules as “stage 1”.  His reiterated that, for the purpose of the consideration outwith the Rules (his “stage 2”), if every factor advanced had been considered in the course of stage 1 and if stage 1 was Strasbourg-compliant, then little more required to be said by the decision taker for the purpose of stage 2.  He made reference in passing (but did not at this point take the court to) the cases of MS, and Ashiq and Butt.  He took issue with Mr Bovey’s characterisation of the stages of decision taking as being (i) applying the Rules, (ii) an Article 8 assessment, and (iii) the consideration of exceptional circumstances outwith the Rules.  Mr Webster argued that Mr Bovey’s stages (i) and (ii) were not distinct, because the matters relevant to Article 8 were now encompassed within the Rules. 

[63]      He next referred to Appendix FM.  This, he said, gave effect to Part 5A of the 2002 Act.  Appendix FM was said to be consistent with the over-arching principles in Part 5A of the 2002 Act, which had been introduced in 2014.  He referred to EX.1 and EX.2 of Appendix FM. 

[64]      Mr Webster then turned to the petitioner’s previous application, included as part of the large bundle lodged at No 6/8 of process and described as “previous productions”.  He referred to paragraphs 23 and 27 of No 6/4 of process (as contained within 6/8 of process for these proceedings).  If an applicant’s partner was British, then the application will be assessed against Appendix FM to the Rules.  This had been done in this case.  The petitioner would have applied through R-LTRP1.1.  However, the effect of these provisions was that an applicant with a British spouse had to show “something more” than the fact that he had a British spouse.  Simply being married, which was the substance of the petitioner’s further submissions, was not enough.  That fact was catered for in paragraphs EX.1 and EX.2 of Appendix FM.  An applicant had to show that there were “insurmountable obstacles” to family life continuing outwith the UK.  This was not a free-standing test, but one contained within stage 1 of the decision-taking (not stage (ii), as Mr Bovey would have it).  This aspect of the Rules gave effect to the Strasbourg jurisprudence. 

[65]      For the purpose of illustrating features of what Mr Webster characterised as “stage (2)”, that is consideration outwith the Rules, Mr Webster referred to the observation at the end of paragraph  5 of Ashiq v SSHD 2015 SC 602;  [2015] CSIH 31, to the effect that there will be no need to conduct a full separate examination of the facts on an application of Article 8 outwith the Rules if all of the relevant considerations have been taken into account under the Rules.  Mr Webster also referred to the unreported case of SB [2015] CSIH 72, at paragraphs 27 to 32 and 44 to 45.  Albeit SB concerned a decision before sections 117A and 117B of the 2002 Act were in force, the Inner House had refused a reclaiming motion against a Lord Ordinary’s refusal of a petition.  In SB, as here, significant reliance had been placed on the fact of the applicant having a British spouse and on the earlier case of Mirza v SSHD [2015] CSOH 28 (in which that factor had weighed with the court in that case).  Mr Webster referred to the observations of Lady Smith in SB that sections 117A and 117B were in accordance with the Strasbourg case of Jeunesse v The Netherlands (2015) 60 EHRR 17 at paragraph 107.   

[66]      Mr Webster also noted the observations in SB at paragraphs 31 and 32, that the Secretary of State was entitled to place little weight on private life which had been established while an applicant’s immigration status was precarious.  Under reference to paragraph 33 of SSHD v Dube [2015] UKUT 00090 (IAC), Mr Webster invited me to note the court’s criticism of the immigration judge’s failure to pay due regard to section 117B(4) and (5), although I note that that paragraph appears to be recording counsel’s submissions to the court. 

[67]      Mr Webster posed the question:  when does Part 5A of the 2002 Act kick in? This, he said, was addressed by the court in SSHD v Bossade, another unreported decision of the UT, [2015] UKUT 00415 (IAC) at paragraphs 26 to 34.  Under the heading “Interrelationship between sections 117A-D considerations and the Immigration Rules”, the Upper Tribunal noted (at paragraph 28 and 29) that there was an overlap between sections 117A-D and the Rules, and it re‑affirmed the need for a two-stage test, namely one within the Rules and one outwith them (para 30).  Mr Webster also referred to paragraph 34, when the Tribunal expressed the view that Part 5A of the 2002 Act was not a complete code but, in substance, a further elaboration of question 5 of the Razgar questions. 

[68]      When matters resumed on 2 March, Mr Webster turned to R (Razgar) v Home Secretary [2004] 2 AC 268, and the five questions set out at paragraph 17.  The fifth question was to ask whether any interference was proportionate to the legitimate public end pursued.  The Razgar questions were sequential ones.  Mr Webster noted the observation at the end of paragraph 20 of Razgar that decisions taken pursuant to immigration control will be proportionate in all but “a small minority of exceptional cases”.  This did not, however, introduce an extra test of exceptionality.  

[69]      This test of insurmountable obstacles was, Mr Webster said, the embodiment of the Strabsourg jurisprudence into the Rules.  He illustrated this under reference to Jeunesse v Netherlands, cit. supra, at paragraphs 107 and 108.  On the basis of that case he submitted that if an applicant formed private or family life at the time his immigration status was precarious, then it would only be very rarely that removal of the non-national spouse wold constitute a breach of Article 8.  Marriage was not a “trump” card, as Mr Webster put it.  However, that test was only one among many factors.  In any event, the Secretary of State required to consider the position outwith the Rules, too. 

[70]      Mr Webster repeated his submission that, for the purpose of the consideration of Article 8 outwith the Rules, if all of the factors relied on at that stage (his stage 2) had been considered already in stage 1, then the decision taker did not need to say much more about them:  Ashiq at paragraphs 2 to 5;  Butt at paragraphs 27 to 32.  He emphasised that sections 117A-B of the 2002 Act were enacted to ensure that decision takers gave an appropriate low weight to any family life established with a British partner while the applicant’s status was precarious or illegal.  If that family life had begun while that immigration status was precarious (or illegal), then the applicant had “no legitimate expectation” of being granted permanent residence in the UK:  Butt at paragraph 32 per Lady Smith.  While Lady Smith was there applying Jeunessse, and not Part 5A of the 2002 Act, her words applied with equal force to those provisions because they were enacted to reflect that same jurisprudence.  

[71]      Turning to consider the petitioner’s own circumstances, Mr Webster argued that the only non-precarious period of residence of the petitioner was during the five years he had the EEA residence permit.  Prior to the commencement of that, his status was precarious.  After the expiry of that, on 21 June 2009, the petitioner’s status became unlawful.  Mr Webster offered an alternative analysis, to the effect that even in relation to the period during which the petitioner had an EEA residence permit, his position might still be regarded as “precarious”.  He referred again to the same passages in Bossade as had been referred to previously, and to sections 117A-D of the 2002 Act. 

[72]      Accordingly, even in relation to the period that the petitioner was present in the UK during the currency of the EEA residency permit, Mr Webster suggested that was “parasitical”.  It was derived from his then EEA-national spouse and dependent upon her remaining in the UK.  Even that status might be described as precarious.  In any event, the petitioner’s status from June 2009 was, he said, both precarious and unlawful.  (I did not understand Mr Bovey to contest this characterisation of the petitioner’s period of residence from June 2009.) 

[73]      Mr Webster returned again to paragraphs 33 and 34 of Bossade in respect of the interrelationship between the Rules and Part 5A of the 2002 Act.  He skipped to paragraph 43, and the observation that Part 5A was indirectly relevant to the Rules.  Mr Webster did not seek to relate this more specifically to the circumstances of this case.  So far as I could follow this part of his submission, it was to repeat the effect of Part 5A: namely, that Parliament had directed that little weight be given to a specified consideration.  This, he said, was indirectly relevant to an assessment within the Rules and for that purpose any assessment of insurmountable obstacles.  He repeated the submission that the primary relevance of section 117D was outwith the Rules. 

[74]      He then referred to Deelah and Others v SSHD [2015] UKUT 515 (IAC), one of a number of additional cases lodged by the petitioner since the last hearing, and especially paragraphs 28 to 33 thereof.  While the observations there recorded would appear to be obiter, the Immigration and Asylum Chamber of the Tribunal rejected the contention that “precarious” was synonymous with “unlawful” (para 33).  In coming to that conclusion, it adopted (at para 30) the observation of the UT in the case of AM (S117B)(Malwai) [2015] UKUT 260 (IAC) at paragraph 32 that a person’s status is “precarious” if “continued presence in the UK will be dependent upon their obtaining a further grant of leave”.  The Tribunal in Deelah also noted comments to similar effect in BM and Others (Returnees- Criminal and non-criminal) DRC CG [2015] UKUT 293 (IAC) and which were made in relation to a person granted only limited leave to remain.  At paragraph 31 of Deelah, the Tribunal set out the observations of the Strasbourg court in Jeunesse v the Netherlands at paragraph 103, and which it regarded as supportive of the Tribunal’s analysis.  It concluded that a person on a limited visa, such as a student, for a time-limited period was aware, from the outset, that the permission to reside in the UK would expire on a specified date.  In those circumstances, there was no expectation of a continued or renewed grant.  Such a person’s status was therefore “precarious”. 

[75]      Mr Webster then turned to SSHD v Treebhawon and Others [2015] UKUT 674 (IAC), being a case that considered Deelah.  At paragraph 17, the Tribunal emphasised that, where they fall to be applied, subsections 117B(4) and (5) of the 2002 Act contained an unequivocal direction that the statutory factors are to be considered and to be given little weight.  All of this meant that, where the consideration was outwith the Rules, there was no discretion afforded and the terms of section 117B(4) and (5) were mandatory.  This led Mr Webster to summarise his position as follows:  (1) the Decision Letter was adequate in its terms;  (2) esto it was not, the question was whether any deficiency was material;  and (3) for that purpose, this court was itself bound by section 117B(4) and (5). 

[76]      At this point Mr Webster referred to paragraphs 9 to 11 of the petitioner’s second outline submission, No 16 of process, and lodged shortly before the resumption of the hearing for its third day on 2 March 2016.  Mr Bovey’s second outline was directed to section 117A-B.  The tenor of Mr Bovey’s argument in the second outline was that, properly construed, these provisions from Part 5A did not require “strict adherence” by a tribunal.  These provisions required a tribunal to consider them but not to follow them.  Provided a tribunal has regard to all of the material factors, Mr Bovey argued in this written submission, it was free to give those matters whatever weight it saw fit, or none at all.  In support of that proposition, he referred in the second outline to the well-known observation of Lord Hoffmann in the planning case of Tesco Stores v Secretary of State for the Environment and Others [1995] 1WLR 759 at paragraphs 56 to 57.  Mr Webster criticised this approach as an impermissible watering down of the clear terms of sections 117A-B.  He referred again at some length to the same passages he cited previously from Deelah, and what he said was the unambiguous interpretation of section 117B(4) and (5), and to Treebhawon.  In reply to Mr Bovey’s reliance on the planning cases, Mr Webster argued that the difference between the two regimes was that in the planning context there was no legislative direction to a court or tribunal about the weight to be attributed to a particular factor.  In the immigration context there was such a statutory direction in section 117A-B.   

[77]      Mr Webster then turned to Rule 353 and what constitutes a fresh claim.  Mr Webster referred to Dangol, cit supra in part as a corrective to the Outer House case of RUS v SSHD [2015] CSOH 19 relied on by Mr Bovey, and which Mr Webster said had been superseded by Dangol.  He also mentioned the case of DM, cit supra.  He stressed that it was not for the court to substitute its own views and that courts had to afford the Secretary of State a reasonable scope for decision making.  He stressed, too, that the onus was on the petitioner to place the information before the Secretary of State. 

[78]      As Mr Webster was unable to complete his submissions, a further two days were allocated and matters resumed some two months later.  When matters reconvened, on 31 May 2016, Mr Webster looked at Appendix FM, R-LTRP1.1 and EX.1 and EX.2, the terms of which I have set out above.  He submitted these parts of the Rules now reflected the Strasbourg jurisprudence, such as Jeunesse.  As a consequence, the fact that an applicant was married did not dictate where he could live.  The length of stay in the host country was only a factor to be considered.  If the applicant had created family life while that presence was precarious, then little weight was to be accorded to that.  Outwith the Rules the test was “exceptional circumstances”.  What precisely that meant was within the discretion afforded to the Member State. 

[79]      Mr Webster returned to section 117B of Part 5A of the 2002 Act and he submitted that this was how Article 8 was accommodated with the Rules.  It contained the expression “public interest”.  When making an assessment for the purpose of Article 8 outwith the Rules, that could be informed by the Article 8 assessment undertaken within the Rules.  Where the factors were the same, then at the stage of the consideration outwith the Rules, this need not be lengthy.  He referred to what had been said about this by Lady Smith in Butt. 

[80]      Mr Webster then turned to the recent case of Khan v SSHD [2016] CSIH 13, which had been decided by the Inner House a few months earlier.  Khan was an appeal from the tribunal.  It was a matter of agreement in that case that Mr Khan did not qualify within the Rules.  The issue was focused on the consideration outwith the Rules.  Mr Webster referred to paragraphs 12 to 22 in Khan.  He relied on the court’s observation (at para 14), based on Jeunesse, that Article 8 does not impose on the Member State a general obligation to respect a married couple’s choice of their country of residence.  The Inner House set out non‑exhaustively the kinds of factors likely to be relevant to an Article 8 assessment outwith the Rules (see para 15).  It emphasised the position, derived from the Strasbourg jurisprudence, that where family life had been established while the immigration status of the applicant was precarious, it was likely to be only in exceptional circumstances that removal from the host state would violate Article 8.  

[81]      Mr Webster also noted the treatment by the court in Khan of the earlier decision of Mirza and on which Mr Bovey had placed considerable reliance.  Mirza was now confined to its own facts.  The court in Butt v SSHD [2015] CSIH 72 had said as much, at paragraph 44. 

Mr Wesbter returned to Rule 353.  He referred to the decision of the Court of Appeal in R (YH) v SSHD [2010] 4 All ER 448, in particular paragraphs 15 and 16.  In the passage Mr Webster referred to, the Court of Appeal was addressing the question of whether, in the gate‑keeping exercise of determining a possible appeal, the Secretary of State stood in the shoes of a hypothetical immigration judge or should apply his own judgement to that question.  In that case, the court eschewed the notion of the “hypothetical immigration judge”.  Rather, Mr Webster said, the court reviews the material on the basis of what was before the Secretary of State.  It does not approach matters on the basis of what might have been argued before an immigration judge.  If the material before the Secretary of State was lacking, so be it.  The court should not substitute its own view of the material.  It could only interfere if the decision of the Secretary of State was perverse. 

[82]      Mr Webster turned to consider the Decision Letter and to respond to Mr Bovey’s criticisms thereof.  In respect of the criticism that the Decision Letter was erroneous when it stated that “all submissions had been considered previously”, Mr Webster argued that the word “previously” at the end of that sentence was superfluous.  (The passage under discussion is set out in para [10] above.)  If that word was treated as pro non scripto there was no error, as suggested by Mr Bovey. 

[83]      Mr Bovey’s next criticism was that the reference to “exceptional circumstances”, at the end of the next paragraph in the Decision Letter, was also misconceived.  (This paragraph of the Decision Letter is set out at paragraph [12], above.)  That phrase was shorthand for EX.1 in which that phrase appeared.  This reference does not mean that the author of the Decision Letter imported some test of exceptionality into the determination within the Rules. 

[84]      In relation to the criticisms made about the treatment of the statements, Mr Webster’s response was as follows.  It is clear reading the rest of this part of the Decision Letter that the Secretary of State had engaged with the nature of the relationship between the petitioner and his wife.  Furthermore, the author of the Decision Letter was looking at matters in a practical way, for example, by considering whether it was reasonable for the petitioner’s wife to remain in the UK.  It was not just assumed that the petitioner’s wife would leave.  (That was the error made in Mirza and corrected in Khan.)  If there were not significant difficulties in the petitioner’s wife going with the petitioner to Pakistan, this was relevant.  By implication this informed the weight to attach to her view or to any separation.  In that circumstance, her decision to remain in the UK, if this is what she did, would reflect her own choice. 

[85]      As regards the line in the Decision Letter that there was no basis to say that they were co-habiting, Mr Webster’s response was that this was not a conclusion.  (The relative passage is in para [13], above.)  It was a comment on the paucity of the evidence to support that conclusion.  There was an absence of co-obligations.  This was not demonstrating irrationality.  In relation to the views expressed about there being no language barrier, the Secretary of State was accepting that English was a language used in Pakistan and so the petitioner’s wife, if she went, would be able to communicate. 

 

The Characterisation Question
[86]      Mr Webster returned to his argument that, apart from during the currency of the EEA residence permit, the petitioner’s status was unlawful. During the period of the EEA residence permit, this was, Mr Webster said, equivalent to LTR.  Even if this was lawful, he suggested it was nonetheless precarious.  The petitioner’s position was akin to a student on a visa, which was the circumstance of the applicant in Khan. 

[87]      Mr Webster then turned to address himself to the arguments made in Mr Bovey’s further (ie third) submission (No 17 of process) and the three additional cases (now numbers 33 to 35 of the petitioner’s bundle), lodged since the reconvened hearing in March.  The focus of this further (third) submission was also on the meaning of “precarious” in the context of section 117B of the 2002 Act.  In this submission, Mr Bovey had taken issue with the observation at paragraph 28 of the Upper Tribunal decision in Deelah (referred to above, at para [74]) and, within that decision, with  the UT case of AM [2015] UKUT 260 (IAC).  In his third submission, Mr Bovey argued that the UT in the latter case had erred in its understanding of the case there relied on, of Arvelo Aponte v the Netherlands (28770/05).  When looking at the case of Aponte, the UT in AM  had assumed that the Strasbourg court had proceeded on the basis that the claimant’s status was “precarious”, including (i) the period of time the claimant was in the Netherlands on a tourist visa, (ii) the subsequent period of time during which the claimant had a residence visa issued to enable her to make an application for a permanent residence permit, and (iii) the subsequent period when she remained in the Netherlands after refusal of that permit.  Mr Bovey’s argument was that the UT in AM misread Aponte.  On a correct reading of Aponte, he said, the Strasbourg court regarded only (iii) as precarious.  Furthermore, Mr Bovey had argued in this third submission that there was no instance of a case from the ECtHR in which a person with LTR had been described as precarious. 

[88]      In reply to all of this, Mr Webster referred to the footnote to paragraph 108 of Jeunesse and the reference there to the unreported case of Mitchell v UK (40447/98).  In that case, the Strasbourg court had declared inadmissible a claim brought by the British wife of a Jamaican man who had been deported back to Jamaica after he overstayed and was subsequently found to be engaged in criminal conduct.  Mr Mitchell had initially been admitted as a visitor for a six month period.  He began cohabiting with his wife (as she was later to become) during that six month period.  Mr Webster relied on the fact that while the first six months of Mr Mitchell’s presence in the UK had been permitted as a visitor, the Strasbourg court had not distinguished between that initially lawful period and the subsequent unlawful period (once he was an overstayer).  Mr Webster said that the court in Mitchell had treated this all as precarious.  He relied on the observation in the peni‑penultimate paragraph of that case that “[A]t no stage prior to her marriage does the court consider that the applicant could have reasonably held any expectation that Mr Mitchell would be granted leave to remain in the UK.”  This, he said, was a case that disproved Mr Bovey’s assertion that there had never been a Strasbourg case in which someone with leave to remain was regarded as precarious.  In Mitchell the Strasbourg court had not distinguished between other forms of leave, other than indefinite leave to remain.  Jeunesse relied on Mitchell when articulating the court’s position on the consequences of an applicant’s immigration status as being precarious. 

[89]      Turning to Aponte v The Netherlands (application 28770/05), Mr Wesbter referred to paragraphs 56 and 59.  This case concerned a Venezuelan national who entered the Netherlands on a tourist visa in 2000.  She met and started a relationship with T.  She was granted permission in the form of a provisional residence permit to enter the Netherlands to apply for a residence permit for the purpose of family formation with Mr T.  In the course of that application, made in 2001, the fact that she had previously been convicted and imprisoned in Germany for drugs offences became known.  She was told in August 2001 of the intention to declare her an undesirable alien and to make an exclusion order.  As a consequence, her application for a residence permit was rejected in March 2002.  A 10 year exclusion order was imposed upon her.  It was also a criminal offence for her to remain in the Netherlands from that point in time, although no criminal proceedings were instigated. 

[90]      On the facts, the Strasbourg court in Aponte took the view that the applicant was aware from August 2001 that there was a serious possibility that an exclusion order would be imposed upon her.  This was before she married Mr T or the birth of their child.  Her presence after refusal of the residence permit was described as being ”tolerated” by the Netherlands.  This toleration could not, however, “be equated with lawful stay where the authorities explicitly grant an alien permission to settle in their country”.  As a consequence, the Strasbourg court held that the “total length of her stay” could not be given the weight attributed to it by the claimant.  On the basis of this, Mr Webster argued that her status was regarded as precarious, even though periods of it were lawful.  So far as I understood him, Mr Webster assumed that the Starsbourg court had disregarded all of the periods of residence, even though some of this was lawful.  By implication, he said the Strasbourg court had regarded all of this as precarious. 

[91]      Finally, in this context, Mr Webster referred to Nunez v Norway (2014) 58 EHRR 17.  The facts of that case are somewhat involved, but it suffices to note that the applicant had secured a residence permit after she re-entered Norway using a false passport and married a Norwegian.  Mr Webster referred just to the observation in para 0II-2 in the dissenting opinion of several of the judges.  The dissent was on other matters.  The observation was a parenthetical aside, in the context of describing the applicant’s status from day one as “precarious”, which was said to be “a term normally applied to non-nationals who are granted permission to remain in a country for a definite period of time”.  This, Mr Webster said, supported his analysis that, in UK terms, anything less than indefinite LTR was precarious.  No other passage in Nunez was referred to by either Mr Bovey or Mr Webster. 

[92]      Mr Webster then turned to consider the criticism levelled at the reference in the Decision Letter to the applicant pursing the “correct avenue”.  (This is the third last paragraph, set out in para [15] above.)  Under reference to paragraph 101 of Jeunesse, he said that this was no more than a reflection of what the Strasbourg court said at that passage.  After referring to an applicant’s failure to comply with the rules of the member state to obtain a provisional residence visa from abroad before seeking permanent residence, the court in Jeunesse had reiterated the right of member states to require aliens to “make the appropriate request from abroad”. 

[93]      Mr Webster then passed over the private life aspects of the Decision Letter, from page 7 to mid-way down page 8, as there was no challenge to that aspect of the decision.  (This corresponds with determination (4):  see para [18] above.)  In relation to “stage 2”, which he said corresponded with the bottom half of page 8 of the Decision Letter (under the heading “exceptional circumstances”), Mr Wesbter simply said that this was permissibly short in its expression.  Mr Webster then turned to “stage 3”, from page 9.  (It was not entirely clear what he meant by this stage, which he had not previously identified as a distinct stage, nor by his passing reference to Rule 353.)  He did not dwell on what was the appropriate legal context but proceeded to refer to the six year “delay” (as Mr Bovey characterised it) that occurred at the outset of the petitioner’s stay in the UK.  It was, he said, clear that the Secretary of State had had regard to this factor.  There was no failure to do so.  It was considered not to carry sufficient weight to justify a grant under Rule 353B. 

[94]      Mr Webster than submitted that the petitioner had made a Human Rights Act claim in 2012.  Matters had been considered at that time.  For the purpose of the decision or decisions now under challenge, the Secretary of State was entitled to approach matters consistent with the determination of that claim in 2012.  This did not mean that the Secretary of State had “closed her eyes” to the petitioner.  The petitioner had presented a weak case for consideration outwith the Rules.  No exceptional circumstances had been presented. 

[95]      Mr Webster was not able to conclude his submissions, which therefore resumed on a fifth day.  When matters resumed Mr Webster returned to the issue of precariousness.  He referred to A v SSHD [2016] CSIH 38, in which the Inner House had issued its decision a few days prior to the resumed hearing in this case.  A concerned a refugee and a challenge inter alia to the equiparation of the status of such a person to that of an illegal immigrant.  In the context of that issue (and the several others that arose) the court in A had stated the following (at para 71): 

“We would observe that in none of the cases cited to us in which the term ‘precarious’ has been applied was that term applied to the immigration status of a refugee with 5‑year limited leave to remain.  Family life established by a refugee pre‑flight and which lawfully subsists post-flight cannot be compared to family life established post-flight and in the full knowledge that one of the parties has no right to stay at all.”

After that passage, the court noted that the observations in Deelah (from paras 30 to 33 in that decision) were obiter and, in any event, inapposite to a refugee.  In respect of A, Mr Webster argued that the status of a refugee was sui generis.  The court in A went no further than to say that Deelah was not appropriate to cases concerning refugees.  On that basis, the observations in A themselves fell to be distinguished.  A was an unusual case.  In a case such as the petitioner’s, Mr Webster argued, Deelah remained good law. 

[96]      Mr Webster said that examples of non-precarious grants under the Rules included ILTR and an EEA permit, so long as the EU national was exercising free movement rights.  Here, the petitioner’s rights under the EEA residence permit had been defeated by the departure of his EEA national spouse.  Therefore, Mr Webster said, his position was always precarious.  

[97]      Mr Webster referred again to the case of Mirza.  The error identified by the court in that case had not been repeated here.  In any event, there had been no discussion in Mirza of the Strasbourg case of Jeunesse.  Further, no subsequent Inner House case had followed Mirza.  It had been confined to its own facts.  

[98]      Mr Webster then turned to the three cases of SSHD v Tao, SSHD v Ibinola and SSHD v Alexander, relied upon by Mr Bovey.  The additional factors in those cases had included the dependency of the UK partner’s parents on the UK spouse, due to serious ill-health, or the dependency of minor children accepted as children of the family life founded upon by the applicant, or the reliance placed by the working UK spouse on the help of the applicant in caring for a dependent child.  However, he said, in contrast to the facts of those cases, here the petitioner had presented only a very weak case for consideration outwith the Rules.  The only factor relied upon was that the petitioner had married KI.  There were no dependent children and no minor children.  There was no other dependent family member.  There were no health issues of any kind concerning the petitioner, KI or the wider family.  There were no educational or religious issues.  The only emotional dependence concerned adult children.  There were no significant language barriers.  There was no significant emotional or financial dependency of adult children of KI.  There were no children from the marriage between KI and the petitioner.  KI was not financially dependent upon the petitioner, who was not allowed to work in the UK.  There were no employment issues for the petitioner in Pakistan.  The petitioner had family in Pakistan.  The petitioner’s marriage to KI was of short duration.  There was nothing, therefore, in this petitioner’s circumstances to make it unusual or exceptional.  

[99]      Finally, in relation to the length of time the petitioner had been in the UK, Mr Webster argued that there was no delay in the processing of the any of the petitioner’s applications since 2012 (that is, the petitioner’s first and second applications for LTR or the petitioner’s first fresh claim).  There was no delay by the Secretary of State in relation to the EEA residence permit.  That family life had ended.  The petitioner’s first application for ILR had been heard and rejected by the tribunal.  That dealt with all periods of the petitioner’s residence in the UK, apart from the first six years.  But that was of no relevance to the present application.  The petitioner did not rely on any private life factor referable to that first six year period.  Accordingly, nothing had been provided to the Secretary of State to make the length of the petitioner’s stay of any relevance.  The case of Benyoucef, relied upon by Mr Bovey, was materially different.  In any event, since Parliament had enacted Part 5A of the 2002 Act, it was questionable whether there was any relevance to the issue of delay. 

[100]    In summary, Mr Webster argued that the Decision Letter demonstrated an approach consistent with the foregoing jurisprudence.  The Secretary of State had identified the correct test ab ante.  The evidence presented is considered in the context of the Rules.  Where there is an issue to be weighed, the Secretary of State undertook a weighing exercise.  The Secretary of State did not exclude evidence on the basis of it being a statement.  The Secretary of State weighed the petitioner’s wife’s interests as well as the petitioner’s and other family members’ interests in the assessment of insurmountable obstacles.  The Secretary of State considered the further representations outwith the Rules.  As the petitioner raised no distinct issue not covered in the Rules, the treatment of Article 8 outwith the Immigrations Rules is acceptably brief.  Having regard to the public interest consideration, the decision reached by the Secretary of State was within the bounds of reasonable decision-making:  R(Iran) v Secretary of State for the Home Department  [2005] EWCA Civ 982. 

 

Reply on Behalf of the Petitioner

[101]    Mr Bovey began his reply by referring to Dangol at paragraph 7, and the reference therein to WM.  If there was a want of anxious scrutiny or if the Secretary of State had not asked the correct question, then this judicial review had to succeed.  Under reference to Absalom v SSHD [2010] CSOH 109, Mr Bovey said that there should be no ex post facto rationalisation of the Decision Letter, such as Mr Webster sought to do.  It was not good enough, he said, for the Secretary of State to try to read out the word “previously”, as Mr Webster invited the court to do. 

[102]    Under reference to the Home Office’s “Asylum Policy Instruction:  Further Submissions” (No 6/10 of process), Mr Bovey noted that the starting point was the final determination in any previous appeal.  In the petitioner’s case, that had been in June 2014.  Since then he had begun cohabiting with KI (from June 2014) and they had married (in December 2014).  These factors post-dated the last consideration by the immigration judge.  It was not correct, therefore, to say that little had changed in respect of the petitioner’s second fresh claim representations.  

[103]    In relation to the Secretary of State’s treatment of the petitioner’s application under the Rules, Mr Bovey argued that Article 8 had not been dealt with in an intelligible way or adequately.  The petitioner had founded on his length of time in the UK and on his marriage to KI.  Mr Bovey referred to Jeunesse at paragraphs 113, 114 and 115.  In that case the Strasbourg court had found that the applicant’s length of residence was an important factor.  It looked at the length as a whole.  This the Secretary of State had failed to do.  She had failed to look at matters “in the round”, as Article 8 required.  There was, he said, insufficient consideration of the length of the petitioner’s presence in the UK.  If that was the case for her consideration within the Rules, she repeated this error in her consideration outwith the Rules.  There was no adequate consideration of the petitioner’s family life or the length of his residence within the UK.  She had only considered matters “slice-by-slice”, not collectively.  

[104]    In respect of Mr Webster’s reliance on Khan to the detriment of Mirza, Mr Bovey argued that in Khan the Inner House had said that it was a broader assessment for the purpose of Article 8 outwith the Rules.  There was none of this in the Decision Letter.  Further, Mirza had not been overruled by the Inner House in Khan;  separately, that court couldn’t do so.

[105]    Mr Bovey next turned to his second and third outline submissions (No 16 and 17 of process).  Both of these addressed the issue of precariousness.  As I have referred to the substance of these in the course of Mr Webster’s submissions, at the points when he was replying to them, it is not necessary to repeat the outline submissions.  Mr Bovey adopted those submissions.  He referred to paragraphs 5 to 9, and 11 to 15 of Treebhawon, not because this was relevant to the issue of precariousness (which does not appear to have been under discussion in that case), but as an illustration of how a tribunal deals with a weak case.  (Parenthetically, I note that the paragraphs Mr Bovey referred to are in the first part of the Tribunal’s decision allowing the SSHD’s appeal on the basis that there was an error by the immigration judge in the context of section 276ADE.  I note that there is no live issue in this case concerning that provision.)  So far as I have his submissions noted, Mr Bovey did not refer to the latter part of the decision in Treebhawon, which Mr Webster founded on for its interpretation of section 117B as being an “unambiguous Parliamentary direction” requiring that certain factors “be considered and given little weight” (emphasis in original). 

[106]    Mr Bovey then turned to the case of GS v SSHD [2005] UKAIT 2001, one of the additional cases lodged.  This is a short decision.  Mr Bovey referred to paragraph 12, which reads as follows: 

“In our view it is common sense that the extent of the public interest may vary in cases which fall outside the normal or the ‘general run’. … Considering appeals on a ‘case by case’ basis, as Razgar enjoins, would be a meaningless if, irrespective of particular facts relating to the past approach of the Secretary of State to a case, the interests of a state in the effective maintenance of immigration control were unfailingly a ‘trump card’ because it always had a fixed weight.”

 

[107]    Mr Bovey relied on this passage as support for the proposition that the public interest is not fixed.  This, he said, undermined Part 5A of the 2002 Act.  As a consequence, the reference in section 117B “to have regard” was the overriding factor and this was not imposing a burden to give “little weight” to certain factors.  The Parliamentary intent behind section 117B was, Mr Bovey argued, to do no more than require that regard was had to certain factors.  

[108]    In relation to Mitchell v UK, this did not support the contention that it was appropriate to describe a limited leave as “precarious”.  He referred to Jeunesse at paragraph 108 and cautioned against describing any limited leave as precarious.  In any event, he argued that Deelah was wrongly decided.  In Strasbourg parlance “precarious” meant a person without any leave.  So, the petitioner’s status during the currency of the EEA residence permit was not precarious.  (Mr Bovey accepted that during the other periods of the petitioner’s presence in the UK, his status was properly described as precarious.  He also accepted that the period since 2009 was also unlawful.)  The court had to take care with Khan, because it was simply a matter of assumption in that case that the applicant’s status was precarious.  Finally, the case of A did not assist either party. 

 

Discussion
The Challenge to the Determination within the Rules Based on the Petitioner’s Family Life

[109]    The first issue for determination is whether the Secretary of State erred in law in her determination of the petitioner’s application under the Rules based on family life, and if any error identified was material.  The test I have to apply is a standard Judicial Review test.  In respect of the challenges to the determinations within the Rules, it is not for this court to substitute its own view on the matter.  The first question to be asked is whether the Secretary of State asked herself the right question, namely whether there was a realistic prospect of an immigration judge, applying the rule of anxious scrutiny, finding in favour of the petitioner.  I have no doubt that she did ask the right question.  Mr Bovey did not suggest otherwise.  His attack was on the next step, namely, whether, in addressing that question, the Secretary of State has herself satisfied the requirement of anxious scrutiny both in respect of her evaluation of the evidence and the facts and in respect of the legal and other conclusions to be drawn from those facts. 

 

Has there been a want of Anxious Scrutiny on the Part of the Secretary of State?
[110]    In considering the petitioner’s challenge to the Secretary of State’s determination in respect of family life under paragraph EX.1 of Appendix FM, it is important to bear in mind what an applicant must establish in order to satisfy this part of the Rules.  Assuming all other applicable requirements of the Rules are met in respect of family life for the purpose of paragraph R‑LTRP.1.1 of Appendix FM (which they were in this case), the applicant must nonetheless show that there are “insurmountable obstacles” to the continuation of family life outside of the United Kingdom.  It was not disputed that that formulation reflects the jurisprudence of the Strasbourg court.  Both parties referred to Jeunesse v the Netherlands (at para 107) as illustrating that jurisprudence.  The most recent authoritative treatment of this issue by the Inner House of the Court of Session is to be found in Dangol.  

[111]    Accordingly, in terms of the Strasbourg jurisprudence and of paragraph EX.1 of Appendix FM to the Rules, hardship faced in the exercise of the petitioner’s family life (including its impact on his wife) is in itself unlikely to suffice.  It is a necessary implication of the Strasbourg jurisprudence that, in cases falling short of insurmountable obstacles, there is likely to be disruption to  or, perhaps more accurately, interference with family life.  That is, in a sense, a permissible disruption or interference, so long as it is not disproportionate in an Article 8 relevant sense.  Indeed, it is the fact of that interference that brings into play the proportionality assessment (however “proportionality” may be understood).  That is why “something more” (as Mr Webster put it) is required, than the fact of that interference, and which amounts to an insurmountable obstacle.  However, it was not actually argued that on the facts of this case there were insurmountable obstacles or, indeed, what they were, but that the Secretary of State failed to exercise anxious scrutiny in certain respects. 

[112]    The principal criticisms forming the petitioner’s challenge to this part of the Decision Letter were those set out above, at paragraphs [35], [38] and [39]. 

[113]    Mr Bovey argued that the decision taker disregarded the petitioner’s wife’s statement, because it was “a statement only”.  While on a first reading of this sentence of the Decision Letter that might appear to be so, I am not persuaded that that is a fair reading of the Decision Letter construed as a whole.  This particular criticism would have force if it were shown that the decision taker thereafter ignored the subject matter or substance of this statement.  The import of the statement from the petitioner’s wife, as recorded in the Decision Letter, is that “she is not in a position to relocate to Pakistan and that there are insurmountable obstacles”.  It was not suggested in any of the submissions before me that this was not the substance of her statement.  (Neither party referred to her statement in submissions and it does not appear to have been lodged as a production.)  Further, there was no suggestion there was a particular circumstance within any of these statements that was favourable or relevant, and which had been disregarded by the author of the Decision Letter.  Looking at the next six paragraphs of the Decision Letter (set out in para [15], above) it is clear that what is being considered are the factors going to the issue of whether or not KI was unable to relocate.  In other words, the decision taker was engaging with the very proposition which was the substance of KI’s statement, and was endeavouring to assess it in the light of the documentary materials produced. 

[114]    Furthermore, the reference to the “statement only”, which the decision taker contrasts with “substantive evidence” to support KI’s contention is, in my view, an illustration of one of the Dangol principles above, namely, that the Secretary of State must not proceed with undue credulity.  The application of anxious scrutiny cuts both ways. The sentence criticised is consistent with that:  the decision taker is not simply accepting the ipse dixit of the petitioner’s wife, but is testing this in a practical way against the other factors referred to in this part of the Decision Letter.  This is in accordance with the observation of Sales LJ in Agyarko at paragraph 23, referred to by Mr Bovey.

[115]    The next criticism, of the penultimate sentence in the next paragraph, concluding that there was “a lack of evidence to support that the [petitioner was] currently cohabiting”, was said to ignore the requirement of the Secretary of State that the petitioner required to reside with his wife.  That conclusion, however, has to be read against the other material considered and set out earlier in that paragraph.  At the outset of this part of the Decision Letter it is stated that it is accepted that the petitioner and his wife are in a genuine and subsisting relationship.  The rest of the paragraph considers the documentary material produced to vouch that they were cohabiting.  For the reasons stated, namely, that there is only one document (the council tax bill from November 2014), it was observed that there was a lack of evidence to support that the petitioner and his wife were currently cohabiting.  I accept Mr Webster’s submission that this was no more than a comment on the paucity of evidence.  Having regard to the documentation, that comment does not indicate a lack of anxious scrutiny.  More importantly, for the purpose of applying anxious scrutiny, that comment was not used to undermine the acceptance that the relationship between the petitioner and KI was a genuine and subsisting one.  Indeed, it is by reason of the acceptance of the genuineness of that relationship (and which is the core of the family life the petitioner invokes), that the decision taker proceeded to consider the overarching question, which is whether the petitioner had demonstrated that there were insurmountable obstacles.  Had the author not accepted the genuineness and subsistence of the petitioner’s relationship with KI, such a consideration would be otiose. 

[116]    The remainder of the petitioner’s challenge to the determination under the Rules in respect of his family life claim qua partner, concerned the fact that KI was a British citizen spouse and what was said to be her inability to join the petitioner in his country of origin.  Consistent with that argument, Mr Bovey founded strongly on the case of Mirza.  It must immediately be noted, however, that Mirza was a challenge to a decision outwith the Rules:  see paragraph 27 thereof.  At issue, therefore, was the proportionality or otherwise of the decision to refuse the applicant’s application outwith the Rules.  The material error identified in that case was the disregard of the rights flowing from the applicant’s UK spouse.  Mirza must, of course, be read subject to the treatment of that case in Khan, another case concerned solely with a refusal outwith the Rules.  While Mirza  might be regarded as the high water mark as regards the importance of the attitude and rights of the UK-citizen spouse, I accept Mr Webster’s submission that Mirza has been confined to its own facts by subsequent cases such as Khan (see the discussion at paras 17ff) and Butt (see para 44).  In any event, even on the assumption that Mirza is relevant to the determination within the Rules, I do not accept that a “like error” as was identified in that case has been committed by the Secretary of State in the Decision Letter.  The Decision Letter does not disclose any fixed assumptions of what KI will do, but is testing the substance of KI’s statement against other known facts for the purpose of assessing whether there are insurmountable obstacles.

[117]    I return to the question: has it been demonstrated that there was a want of anxious scrutiny on the part of the Secretary of State? Anxious scrutiny concerns the generous reach of the factors that could conceivably be favourable to an applicant.  Putting it another way, there is considerable breadth in the factors that might conceivably be favourable, and therefore relevant.  That opens up the possibility that if the Secretary of State leaves out of account such a factor, that itself may demonstrate a want of anxious scrutiny, though that is not the nature of the criticisms made in this case.  It has not been argued here that she failed to have regard to a relevant factor.  Anxious scrutiny also means that the Secretary of State is bound to consider all of the relevant material carefully, that is with anxious scrutiny.  That does not mean, however, that she is bound to find in favour of an applicant.  It is not a relevant ground of challenge simply to express disagreement with the weight attributed by the Secretary of State to one or more factors.  It is incumbent upon the petitioner to establish a want of anxious scrutiny in this second sense.  In my opinion, he has failed to do so in this case.  In my view, on a fair reading of the Decision Letter it is clear that the Secretary of State asked herself the right questions and reached a view that was within the range of decisions open to her on the material placed before her. In particular, it was open to her to conclude that, on the material presented, it had not been shown that there were insurmountable obstacles to the continuation of family life outwith the UK and that there was no reasonable prospect of an immigration judge concluding otherwise.

 

Miscellaneous Criticisms

[118]    Mr Bovey advanced a number of miscellaneous criticisms, though he accepted that these were not sufficient to establish a want of anxious scrutiny or to form a discrete ground of challenge.  Is there are any merit to these criticisms?  As is apparent from this part of the Decision Letter, after each of these observations the author of the Decision Letter goes on to consider in a practical way the possible hurdles to family life continuing in Pakistan, the petitioner’s country of origin.  It is in that context that there is the assessment about the language issue, the transferability of work skills, and the ability of the petitioner’s family in Pakistan to assist with integration of the petitioner and his family into that society.  In respect of the statement from the petitioner’s adult children, the author of the Decision Letter proceeds to consider the impact of the petitioner’s wife returning to Pakistan with him, and the effect on family life.  What follows the passage criticised is the author of the Decision Letter weighing the known factors and noting the absence of features that might have made this separation an insurmountable obstacle, eg by reason of some particular financial, physical or emotional dependency.  It is not suggested that there was any other factor that was omitted from the Decision Letter.  It is not suggested that the conclusion at the end of the following paragraph, that KI must have considered relocation to continue their relationship, was unjustified or in error.  

[119]    I turn briefly to consider Mr Bovey’s conflation argument (recorded at para [35], above).  I do not accept the submission that the reference to “exceptional circumstances” at the point in the Decision Letter identified by Mr Bovey constitutes a conflation of the test outwith the Rules (of exceptional circumstances) with the consideration of the petitioner’s application within the Rules (and, specifically, whether there were insurmountable obstacles).  That is not borne out by the relative parts of the Decision Letter: the correct test is identified and applied in respect of each stage of the several determinations made.  Looking at the paragraph which Mr Bovey criticises, it is in substance signposting, as it were, the different stages or determinations to be made.  I reject this ground of challenge.

[120]    For the foregoing reasons, in my view the criticisms levelled at the Decision Letter do not establish a want of anxious scrutiny on the part of the Secretary of State.

 

Materiality of any Error

[121]    Lest I be wrong on that conclusion, I should express my view as to whether any failing as identified by Mr Bovey is material.  As I observed at the outset of my consideration of this ground of challenge, at paragraph [110] to [111] above, it is helpful to bear in mind that the test to be satisfied is that there are insurmountable obstacles.  In my view, even if I had accepted Mr Bovey’s criticisms about the treatment of the statements or the documentary evidence about cohabitation, I would not have regarded any error as material.  This is because, on a fair reading of the Decision Letter, the author did not use these matters to disregard the issue to be determined:  whether there were insurmountable obstacles.  The conclusion that there are no insurmountable obstacles would, in my view, have been undisturbed by any finding that one or more of the criticisms Mr Bovey identified was justified. 

 

Fresh Claim
[122]    One of Mr Bovey’s criticisms was a short one, to the effect that the author of the Decision Letter erred in stating that all of the submissions had been considered previously. See paragraph [36], above.  Mr Webster’s reply is noted at paragraph [82].  The argument was not developed beyond these submissions.  In my view, there is no force in this criticism once this sentence is read in the context of the rest of the Decision Letter.  Had the author of the Decision Letter concluded that the same material had been presented previously and that there was nothing new, then the next sentence in the Decision Letter would not have been necessary.  That sentence states that the further submissions “are not significantly different from the evidence that has previously been considered…”.  

[123]    More fundamentally, approaching the matter as one of substance, it is notable that it was not argued that thereafter in the Decision Letter the author failed to take into account any of the new matters founded upon (eg such as the petitioner’s marriage to KI or the contention that they were cohabiting).  In point of fact, those additional matters were considered in the Decision Letter.  The marriage and the subsistence and genuineness of the relationship with KI are accepted.  The question of current cohabitation is considered, although there are observations on the paucity of the material the petitioner provided to substantiate this.  The fact that the author of the Decision Letter proceeded to consider whether the further submissions amounted to a fresh claim is reinforced by the heading that next appears:  “Submissions that have not previously been considered but which do not create a realistic prospect of success”.  (To see this in context, see para [14], above.)  That is the very matter that must be addressed in determining whether the further submissions amount to a fresh claim.  Again, this would be redundant if the author of the Decision Letter had simply rejected the further submissions out of hand as containing nothing new.  That the further submissions were considered in substance to see whether they amounted to a fresh claim is further reinforced by the conclusions about this stated at the end of that part of the Decision Letter dealing with the determinations under the Rules (set out above, at para [17], being the third unnumbered paragraph quoted) and also in the overall conclusion (being the penultimate unnumbered paragraph quoted in para [17], above).  This ground of challenge also fails. 

 

Certification

[124]    The petition contains a challenge to the certification decision.  No separate argument was advanced about this, save to argue that it stood or fell with the other determinations.  I shall approach it on that basis.  Having rejected the petitioner’s challenge to the substantive decisions under and outwith the Rules, this challenge also fails. 

 

Challenge outwith the Rules

[125]    I proceed on the basis that the Mr Bovey’s submissions did extend to a challenge to determination (5), as I described it in paragraph [18] above, being the Secretary of State’s determination outwith the Rules.  I accept Mr Webster’s submission that this encompasses the determination outwith the Rules and the Article 8 rights of the petitioner.  This corresponds with Mr Webster’s stage 2 and Mr Bovey’s stages (ii) and (iii).  

[126]    Mr Bovey did not challenge the cases relied upon my Mr Webster to vouch the proposition that where every factor that could be relied on outwith the Rules had been accommodated on a determination within the Rules, that little more required to be said by the decision‑taker.  I accept Mr Bovey’s submission, as well as the correctness of the observation, that, by the time the Secretary of State came to consider the petitioner’s application outwith the Rules, the test of whether there were insurmountable obstacles to the continuation of family life outside the UK was no longer determinative, but simply one factor among the others to be considered (per Sales LJ at para 24 in Agyarko).  It was not suggested that the Secretary of State erred by treating the determination within the Rules as conclusive in respect of the petitioner’s application outwith the Rules.  In any event, in respect of the determination outwith the Rules the Decision Letter did not fall into this error.

[127]    In order to succeed on an application outwith the Rules, an applicant whose status was precarious at the time family life was established must show that there are exceptional circumstances such that any interference with his particular family life is disproportionate.  I assume that it was in this context that Mr Bovey invited me to distinguish cases such as Jeunesse because, he says, they were not cases in which there was the kind of delay experienced by the petitioner in this case.  On the facts of Jeunesse this is not correct.  The applicant in that case had been in the Netherlands for 16 years.  Furthermore, I do not accept the premise of Mr Bovey’s contention.  I am not persuaded that any “delay” which pre‑dates 2005 has any relevance to the family life founded upon in this case.  In my view, the proper focus is the period of time from the expiry of the petitioner’s EEA residence permit in June 2009.  The petitioner did not establish his family life with KI until 2012. In any event, there was no “toleration” of the petitioner’s presence in the sense described by the Strasbourg court in Jeunesse and which was regarded as of such significance in that case.  For all of these reasons, I do not accept that Jeunesse falls to be distinguished as not concerning a case of inordinate delay.  In any event, Rule 353B requires consideration of “exceptional circumstances”.  Accordingly, the test of exceptional circumstances, as set out inter alia in Jeunesse and Rule 353B, falls to be applied to the petitioner’s application outwith the Rules.  The Decision Letter did in my view consider matters afresh, as it were, and did not simply confine itself to the conclusions on the determinations within the Rules.  

[128]    It was in the context of the determination outwith the Rules, seemingly, that the parties engaged in detailed arguments about the proper characterisation of the petitioner’s immigration status, during the period of 2004 to 2009 when he held the EEA residence permit.  This is curious in several respects and it invites the question: what is the relevance of the petitioner’s immigration status pre‑2009?  In this case, the petitioner does not found upon any family life established during the initial six‑year period pending the determination of his asylum claim (from 1998 to 2004).  Nor does he found upon any family life established during the currency of the EEA residence permit (from 2004 to 2009).  So far as there is any information, it suggests that the petitioner divorced from his first wife, the EEA national from whom his EEA residence permit was derived, at some point within that five‑year period.  (For the purposes of the argument before me, it has been assumed that the end of that family life coincided with the expiry of the EEA residence permit in June 2009. That approach is the most favourable to the petitioner.)  

[129]    However, in these proceedings, the petitioner relies on the family life established with his wife, KI.  While they married in December 2014 that relationship had begun at some point in 2012.  It is the petitioner’s immigration status during that period that, in my view, is the relevant one to assess.  It was common ground that the petitioner’s immigration status since 2009 was, at the very least, precarious.  It may also have been unlawful.  (For the purposes of section 117B, it matters not whether the petitioner’s status was precarious or unlawful, because the result is the same in terms of the statutory direction to attribute “little weight” to family life established in either of these circumstances.)  But it was accepted that the family life founded upon was only established from about 2012 onwards.  It was not contended that the petitioner’s immigration status was not precarious during the period that the family life founded upon was established.  Nor was it argued that the petitioner’s admittedly precarious status from 2009 onwards was somehow affected by the existence of the EEA residence permit he had previously held.  Accordingly, the characterisation of the petitioner’s immigration status during the currency of the EEA residence permit is of little discernible relevance to the issues in this case.  Nonetheless, extensive argument was advanced in relation the characterisation of his immigration status during that time.  It prompted the petitioner’s second and third outline submissions as well as reference to the cases of Deelah, AM, Mitchell, Treebhawon, Aponte and Jeunesse.  For the purposes of this case, however, it is not necessary to resolve the characterisation question as regards the petitioner’s immigration status during the currency of his EEA residence permit. 

[130]    The fact that the petitioner’s immigration status was precarious at the time he established the family life founded upon is, it seems to me, significant in two respects.  First, it means that the petitioner must show exceptional circumstances in order to succeed outwith the Rules.  Secondly, it also bring into operation Part 5A of the 2002 Act and the statutory requirement to give “little weight” to family life established during a period which was accepted by both parties to be (at least) precarious. 

[131]    What, then, of Mr Bovey’s submission as to the meaning of section 117B?  Under reference to the planning cases on materiality and the old case of GS (see paras [76] and [106], above), Mr Bovey had contended that “public interest” was not fixed;  that section 117B did not impose a requirement to attribute “little weight” to family life; but that it did no more than require  that ”regard was had” to the fact that family life was established while the applicant’s status was precarious.  In my view, there is no merit in this argument.  The planning cases arise in a very different context and where there is a well-established jurisprudence about material conditions.  Furthermore, the nature of the decision taking in the planning context (including the recognition of the role of planning judgment) renders any direct read across from those cases, such as Mr Bovey seeks to do, inapposite.  Further, Mr Bovey’s submissions runs contrary to the clear words of section 117B, and to the decision of the UT in Deelah.  Mr Bovey did not address the terms of section 117B.  He did not address the passages founded upon by Mr Webster.  (As noted, parenthetically above, at para [105], Mr Bovey referred to those parts of Deelah dealing with a decision under section 276ADE, which is not in issue here.)  He contended that Deelah was wrongly decided.  I disagree.  Even if not technically binding, I find the reasoning in that case cogent and persuasive.  The decision was given by the President of the UT, McCloskey, J.  Considering the language and structure of section 117B, the statutory imperative to attribute “little weight” to family life established at the time an applicant’s status is precarious or unlawful in the context of the assessment of the “public interest”, could not be more clearly stated.  

[132]    In any event, there is a certain disconnect in Mr Bovey’s argument in relation to section 117B.  That provision concerns the attribution of “little weight” to family life if established in certain circumstances (which are present here).  However, the focus of Mr Bovey’s criticism of the decision outwith the Rules was the attribution of “no weight” to the length of the petitioner’s residence, which is a different factor from his status at the time family life was established.  Section 117B is not, in fact, directed to the length of residence. A challenge to the attribution of “no weight” to the length of the petitioner’s residence in the UK, based on section 117B (or on Mr Bovey’s particular reading of it), to argue that “little weight” is a far cry from “no weight” is, in my view, misconceived.  I turn now to consider the arguments about the length of the petitioner’s presence in the UK and the issue of delay. 

 

The Relevance of the Petitioner’s Prolonged Presence in the UK and the Issue of Delay

[133]    Mr Bovey’s principal challenge was to the treatment of the length of time the petitioner had been in the UK.  In contrast to the attribution of little weight to this for the purposes of the determinations under the Rules, at this stage the decision taker attributed “no weight” to the length of the petitioner’s stay.  (Parenthetically, it might be observed that that difference in treatment of the same factor is an example of the decision taker not being bound by the determinations under the Rules when coming onto consider the application outwith the Rules.)  While Mr Bovey did not put matters this way, the logic of his argument is that the sheer length of time, considered simply on its own, is an exceptional circumstance. 

[134]    There is no challenge to the paragraphs in this part of the Decision Letter setting out the background (and which I have set out in paras [2] to [5] of this Opinion.)  The passage challenged is as follows: 

“You only briefly had a right to remain when your then wife was exercising treaty rights and you adduced no evidence that this continued beyond your residency permit being issued.  It is considered no weight can be attached to your length of residency in the UK.  Any delays by the Home Office are not considered significant enough to justify any grant of leave”.  (Emphasis added.)

 

Mr Bovey did not challenge the observation recorded at the second part of the first sentence.  There was no information about the duration of the petitioner’s first marriage to the EEA national.  In my view the observation about the lack of evidence to establish the duration of the petitioner’s first marriage is unremarkable.  However, Mr Bovey founds on the two features of this:  that there is an implicit acknowledgement that there has been delay.  But Mr Bovey founded more strongly on the petitioner’s overall period of residence amounting to some 17 or more years.  Mr Bovey argues that the attribution of “no weight” is indefensible. 

[135]    Mr Bovey founds on the totality of the petitioner’s presence in the UK since 1998.  Mr Bovey’s principal criticisms of the determination outwith the Rules are (1)  that the Secretary of State failed to consider the length of the petitioner’s presence as a whole, but looked at this in a segmented fashion, and (2)  her attribution of “no weight” to the length of the petitioner’s residence in the UK.  These criticisms are, in substance, the same.  Mr Bovey founds, in a general manner, on the length of time that the petitioner has been in the UK.  It was in this context that he referred to the observations of Lord Bingham in EB (Kosovo), see above at paragraph [48].  However, on a close reading, that passage is not about the length of time in the UK per se, but whether, by reason of delay, an application’s expectations might change.  How does that dictum fall to be applied in the present case? 

[136]    Was there delay in a relevant sense from 2009?  Nothing was placed before the court in respect of the petitioner’s actions or whereabouts for the period from 2009 to 2012.  It was not suggested that the UK Border authorities were aware of his address but refrained from taking any steps to remove him, such as to bring into play the issue of toleration referred to by the Strasbourg court in Jeunesse.  It is not suggested that he was in the UK after that point for reasons “beyond his control”, for the purposes of Rule 3535B(iii).  It was not suggested that the petitioner was seeking to regularise his immigration status between 2009 and 2012, and which was precarious from June 2009 (that being a position common to Mr Webster and Mr Bovey). 

[137]    In my view, given the particular circumstances of this case, there is no scope for the kind of expectation referred to by Lord Bingham:  there was nothing placed before the court to support the inference that the relevant authorities were aware of the petitioner’s whereabouts but refrained from exercising any powers of removal.  What were the petitioner’s expectations (in the EB (Kosovo) sense), for the period from 2012 to the date of the Decision Letter?  As noted above at paragraphs [3] to [5], during this period the petitioner’s first and second applications for LTR and his first fresh claim representations were rejected.  He exhausted the appeal rights associated with the former, and abandoned his Judicial Review proceedings in respect of the latter.  Against that background, and in the absence of some sustained delay within that period on the part of the Secretary of State, in my view he could not have had the kind of expectation envisaged by Lord Bingham in EB (Kosovo) in respect of the period from 2009 onwards.

[138]    In my view, in the Strasbourg jurisprudence, a prolonged presence in the host member state is not itself determinative.  Most pertinent to the assessment about a lengthy period of presence in the host Member State is to ask whether relevant Convention rights, such as those under Article 8, have been established.  Those are not abstract rights, but specific to the particular circumstances of the applicant.  Again, that invites a closer consideration of the concrete family life established and which the challenged decision is said to infringe in a disproportionate way.  The petitioner does not rely on the acquisition of family life established during the six‑year period awaiting determination of his asylum.  Nor does he found on any family life established during the currency of the EEA residence permit.  That family life with his first wife was ended by divorce. 

[139]    The authorities suggest a more nuanced approach to determine the relevance of a migrant’s length of presence in the host state.  In determining the relevance of a lengthy period of residence the case law suggests it is necessary to consider a number factors, which are likely to include (but may not be restricted to):  the petitioner’s immigration status during that time, whether that changed (and if so, why);  whether there were any ongoing legal processes directed to clarifying or establishing his immigration status;  whether there was delay by the requisite authorities in respect of these matters;  and what the petitioner’s expectations were at the time he established any family life subsequently founded upon for the purposes of remaining in the host state.  

[140]    While Mr Bovey laid stress on the first six years during which the petitioner was awaiting the determination of his asylum application, and while Mr Webster did not particularly seek to explain that delay, the impact of that delay (in any Convention-relevant sense) on the petitioner’s present application is not obvious.  If the petitioner had established his family life or private life claim during that period, and that was the foundation of his present claim, then Lord Bingham’s observations in EB (Kosovo) might have some force.  But that is not the position in the petitioner’s case.  Once the petitioner established a family life with his first wife, and that family life was ended by divorce, it is difficult to see why what occurred prior to the ending of that family life has any relevance.  It was not suggested that any issue of delay arose during the currency of the EEA residence permit or was referable to the period from 2004 to 2009.

[141]    For these reasons, in the circumstances of this case the overall period of the petitioner’s residence cannot be looked at as a monolith, as Mr Bovey contends.  Such an approach would not be consistent with Rule 353B(iii) (which refers to length of time spent in the UK “for reasons beyond the migrant’s control after the ….claim has been submitted or refused”), with EB (Kosovo) or with Jeunesse.  For the purposes of a family life claim under Article 8, an applicant’s length of residence is relevant to the extent that that residence facilitated the formation of the family life which is the subject matter of the claim.  I am not persuaded that there is any merit in Mr Bovey’s criticism of a segmented approach.  I do not accept that in reaching the determination outwith the Rules the author of the Decision Letter approached that matter with a closed mind or did so on the basis that the determinations within the Rules were determinative. 

[142]    In relation to Mr Bovey’s reliance on the totality of the petitioner’s presence in the UK, as explained above, the monolithic approach is uninformative as regards how it has affected the acquisition of family life which the petitioner now seeks to protect.  On the facts of this case, I am not persuaded that the determination that the length of the petitioner’s stay in the UK be accorded “no weight” is perverse or Wednesbury unreasonable.  It might be otherwise if the family life sought to be protected from interference was referable to all, or a significant proportion, of a long period of residence in the UK.  On the facts of this case, it is not.  The petitioner’s relationship with KI is not a long one and the married part of that is of relatively short duration.  There are no children of the marriage.  Neither KI nor her adult children are dependent on the petitioner.  In all of those circumstances, the Secretary of State’s determination to afford “no weight” to the petitioner’s length of stay is intelligible.  It is not Wednesbury unreasonable.  The challenge to the Decision Letter’s determination outwith the Rules fails. 

 

Disposal

[143]    For these reasons the petitioner’s challenges to the Decision Letter fails and his petition falls to be refused.  I shall put the matter out By Order for discussion of the terms of the interlocutor.

[144]    I shall reserve the question of expenses meantime.  

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2016/[2016]CSOH160.html