Tentative Guidance from Court of Appeal as to meaning of “very significant obstacles to integration” in an inadequately prepared application

“ I wish to add that this Court sees too many cases in which applicants for leave or their advisers – particularly in cases depending on article 8 outside the Rules – devote their energies to setting out extracts from the case-law rather than to demonstrating a compelling case based on the details of the applicant’s particular circumstances. The latter exercise may require more work, but it is what the Secretary of State, and if necessary the Tribunal, will be more concerned with. Cases of this kind generally turn on their facts, and the applicable law does not require elaborate exposition”.   So said the Court of Appeal in Parveen v The Secretary of State for the Home Department [2018] EWCA Civ 932 (25 April 2018)

This is clear criticism by the Court regarding the practice of advancement of inadequately or  poorly prepared Article 8 applications.

Such applications  clearly need to be particularised as to  circumstances, buttressed   by relevant supportive evidence. Generic  and vague cover letters will not suffice more so where it is  subsequently sought to  mount future challenges in the higher courts.

 

Summary Background

The Appellant, a Pakistani national  entered the UK on 25 May 2000 on a spouse visa by virtue of her marriage to a British national.  Her leave expired on 25 May 2001 however she  failed to apply for leave to remain before that date. She eventually made such an application, on 11 November 2014. The application was refused on 27 January 2015. She applied for permission to apply for judicial review of that decision, but permission was refused on the papers  and at a hearing. The Appellant then appealed to  the Court of Appeal.

 

The relevant law:

Appendix FM– In order to qualify for leave under the “partner route” the Appellant had to satisfy paragraph EX.1, and specifically limb (b). This applies where:

“… 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 …, and there are insurmountable obstacles to family life with that partner continuing outside the UK”.

Paragraph 276ADE – The relevant provision of paragraph 276ADE is sub-paragraph (1) (vi) which applies where an applicant has lived continuously in the UK for less than 20 years and “there would be very significant obstacles to their integration in the country of return”.

 

Whether previous caselaw had  properly interpreted   the phrase , “very significant obstacles to integration

The Court of Appeal did not consider that there had a been a proper  judicial stab  as to the meaning and construction  of  this phrase in its proper context.

The Court in Parveen noted that the meaning of the phrase “very significant obstacles to integration”,  was considered  previously by  the Court of Appeal  not  in paragraph 276ADE (1) (vi) but as it appears in paragraph 399A of the Immigration Rules and in section 117C (4) of the Nationality Immigration and Asylum Act 2002, which relate to the deportation of foreign criminals. In Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813, [2016] 4 WLR 152, Sales LJ said, at paragraph  14 of his judgment:

“In my view, the concept of a foreign criminal’s ‘integration’ into the country to which it is proposed that he be deported … is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life.”

The Court in Parveen considered however that the passage focused more on the concept of integration than on what is meant by “very significant obstacles”.

Reference was  also made to  Treebhawon v Secretary of State for the Home Department [2017] UKUT 13 (IAC). At paragraph 37 of its judgment the Upper Tribunal  said:

“The other limb of the test, ‘very significant obstacles’, erects a self-evidently elevated threshold, such that mere hardship, mere difficulty, mere hurdles and mere upheaval or inconvenience, even where multiplied, will generally be insufficient in this context.”

The Court of Appeal  did not find that a very useful gloss on the words of the rule. The  words “very significant” connote an “elevated” threshold, and  the test will not be met by “mere inconvenience or upheaval”.  The Court  however  did not agree with saying that “mere” hardship or difficulty or hurdles, even if multiplied, will not “generally” suffice added  anything of substance.  It was considered that the task of the Secretary of State, or the Tribunal, in any given case is simply to assess the obstacles to integration relied on, whether characterised as hardship or difficulty or anything else, and to decide whether they regard them as “very significant”.

 

Why the Secretary of State  refused the application:

The material part of the Secretary of State’s decision letter stated as  follows:

  • It is not accepted that there would be very significant obstacles to your integration into Pakistan, if you were required to leave the UK. Whilst it is accepted that you may have some initial difficulty upon your return to Pakistan, it is noted that you are a healthy female aged 42 and whilst the material quality of your life in Pakistan may not be at the same level as it is in the United Kingdom, this does not give rise to any right to remain here. ……….Although you may experience a degree of temporary hardship, it is expected that these difficulties could be overcome, bearing in mind your common language and in particular, your familiarity with Pakistani customs and culture. Having spent 27 years in your home country and in the absence of any evidence to the contrary, it is not accepted that there are significant barriers preventing you from returning and integrating to your home country and therefore the Secretary of State is not satisfied that you can meet the requirements of Rule 276ADE(1)(vi).”

 

The problem with the original application  prepared on the  Appellant’s behalf:

The following criticism are evident from the Court of Appeal’s judgement:

  • The application form itself, was considered to contain nothing of substance.
  • The covering letter from  the solicitors did not in fact rely primarily on paragraph 276ADE, formulating the claim rather as being based on Appendix FM, alternatively on article 8 outside the Rules.
  • The covering letter summarised the Appellant’s immigration history and developed  at some length, with almost no particularity, on the degree of her integration into British society, the depth and extent of her friendships and social networks, and her law-abidingness and positive contributions to society; on the basis of all of which it was  said that her life would be turned upside down by having to return to Pakistan.
  • Despite one passing reference to paragraph 276ADE, there was no explicit attempt to address the requirements of sub-paragraph (1) (vi)
  • The legal representatives sent a short pre-action protocol letter, the gist of which was that “exceptional and compelling circumstances have been set out in [the original application]” and that they should have led to a grant of leave. Nothing was said about paragraph 276ADE (1) (vi) and no new factual material was submitted.
  • In reference  to how the inadequately prepared application affected Counsel’s submissions, the Court of Appeal noted that   “ there was almost no straw in the original application with which he could make the necessary bricks”.

 

What needed to be shown for the application to have some chance of success under the Rules:

The Court stated as  follows:

  • The starting-point must be to identify the evidence put forward by the Appellant in her initial application to the Secretary of State which might potentially show the existence of very significant obstacles to her reintegration in Pakistan.
  • It was observed that the argument on the Appellant’s  behalf was that the  covering letter satisfied the requirement under paragraph 276ADE (1) (vi) to show very significant obstacles to the Appellant’s reintegration in Pakistan, or in any event that it required a more elaborate assessment than was given in the passage from the decision letter.  The Court of Appeal  however could  not accept that submission. It was considered that the bare assertion that the Appellant had “lost all connections” with Pakistan and had no-one there who  could support her was  plainly insufficient,
  • If that was indeed the case, the Secretary of State was entitled to expect some particularised explanation of how it had come about, and why, in consequence, she would face such problems on return. The Court of Appeal stated the following considerations would apply:
  • It would be important to know about the Appellant’s  life in Pakistan before she came to this country, where she lived, what family and friends she had, whether she worked and what her educational or other qualifications were.
  • It would also be important to know what had become of her family and friends and how, despite what the Secretary of State tends to call “modern methods of communication”, she had lost touch with them.
  • The Court observed that nothing of this kind was provided in the original application, nor was it  provided at any stage in the course of the litigation. Without it, the Secretary of State was justified in finding that the Appellant had not demonstrated the existence of very significant obstacles to (re-)integration in Pakistan.

 

What needed to be shown for the application to have some chance of success outside  the Rules:

The Court of Appeal considered as follows:

The  Secretary of State must in principle consider whether, even if an applicant cannot satisfy the provisions of paragraph 276ADE or Appendix FM, he or she may nevertheless have a claim under article 8 “outside the Rules”.

The  real question in the case was whether the Upper Tribunal  was right to find that there was no arguable case that the Secretary of State had erred in rejecting the claim under article 8 outside the Rules.

Neither the Secretary of State nor the Upper Tribunal had been given sufficient evidence to make a properly informed decision.

The Court made it clear that in an  application of this kind  it would be  expected that  the Secretary of State would want to consider at least the following points:

(a) whether the Appellant would, if she had made an application before the expiry of her leave to enter in May 2001, have been entitled to leave to remain and, in due course, indefinite leave to remain;

(b) whether there was a good, or at least venial, reason for her failure to make such an application;

(c) whether she continued to satisfy the substantive requirements for leave to remain as a spouse; and

(d) whether it would cause real disruption for her to have to leave the country to make now from abroad the application that she should have made before 25 May 2001 and which would (if point (c) is correct) be certain to succeed.

The  Court stated that elements (a)-(c) were  simply not covered in the application or the subsequent evidence.

The Court did  not know why the Appellant did not apply for leave to remain before 25 May 2001.

It would still be material to know what the delays would be in making an application through the Entry Clearance Officer in Islamabad and what problems it might cause the Appellant (and her husband) for her (and perhaps him) to have to be away for that time.  The Court stated that it was simply not good enough to leave the Secretary of State, or  the Upper  Tribunal, in the dark on these questions.

The Court made it clear that it was not saying  that the Appellant would have to tick all of boxes (a)-(d) in order for it to be right for her to be granted leave to remain outside the Rules. However, if she could  do so  she would have a very strong case. It was  hard to see how it could be right to insist on the empty but disruptive formality of leaving the country in order to correct a venial administrative error made thirteen years previously.

The Court considered that the Appellant might  well have a good case for leave to remain outside the Rules, but she did not in her application give the Secretary of State the material with which to make an informed judgment. It was stated that if she applied  again, dealing fully with the circumstances of her case, the Secretary of State would no doubt give the application careful consideration.

 

Conclusion

When preparing  supportive representations  in an Article 8  claim, it is worthwhile  doing so seeking to ensure to a very  good degree that they will, where relevant,  withstand scrutiny in the higher  Courts.

Supplementing  upon  the evidence and the applicant’s circumstances  right until a decision is made by the Home Office, will assist in ensuring  a review intended to plug any deficiencies  related to  the application.

It is  regrettable that  just when it was thought the phrase “very significant obstacles to integration”, would elicit clear and firm guidance  from the Court  of Appeal, a not so strong case was chosen as the vehicle  through the Court  sought to put forward some seeming  half- finished guidance apparently  driven by the particular  circumstances of this case.

It  has been nearly 5years since the 2012 Rules  became effective.  The Court of Appeal’s guidance on the relevant  phrase does not appear  to be  too relevant as of wider applicability. Perhaps the  Upper Tribunal, in focusing upon an appropriate  future case  will  shortly delve further into the issues and provide more helpful  guidance.

Harsh lesson: Court of Appeal punishes the Home Office for not accepting defeat in a deportation appeal

The Court of Appeal came down hard on the Secretary of State last week. And rightly so.

It is high time that the Secretary of State learns the harsh way that it is not every allowed appeal against deportation that must be pursued  to the death in the higher courts.

Not only did the Court of Appeal in Secretary of State for the Home Department v Barry [2018] EWCA Civ 790 (17 April 2018) maintain the decision of the First Tier Tribunal allowing an appeal against deportation but awarded costs on an indemnity basis to the intended deportee. This was on account of the conduct of the Secretary of State which was found by the Court of Appeal to be “indeed unreasonable to a high degree”.

In effect, the Secretary of State persuaded the Court of Appeal to grant permission to appeal on one basis but during the course of proceedings veered off into another direction without any explanation.

In seeking permission to appeal, the Secretary of State had suggested that the present case was not an isolated instance but potentially raised a “systemic” failure on the part of the Upper Tribunal to correct obvious errors of law by the First Tier Tribunal ( FTT). The Secretary of State had argued that there may be a “systemic failure” by the Upper Tribunal when applying paragraphs 398 and 399 of the Immigration Rules.  What became glaring obvious however, as noted by the Court was that despite the Secretary of State having access to statistical and other information which would tend to support or refute that suggestion of a systemic problem, there was a failure to place any such evidence before the Court.

The Court of Appeal stated that the well known criteria for a second appeal are much more stringent than for a first appeal. The Court of Appeal found it troubling that, having obtained permission to appeal to the Court (and, in particular, having done so in a case in which the stricter criteria for a second appeal needed to be satisfied), the Secretary of State did not in fact pursue the argument that there is a systemic failure by the Upper Tribunal in determining cases such as the present one. The Court of Appeal found that in truth the appeal before them was advanced on the basis of the particular facts of the case and raised no issue of general importance. It was clear that, on the facts of the case, there was no issue of general importance other than the suggestion that there was a “systemic” problem in the Upper Tribunal. This was an unusual allegation and a serious one and that was clearly the basis on which the Court granted permission to the Secretary of State. Having obtained permission on that basis, the Secretary of State failed either to make the submission good with evidence or to pursue the argument. She abandoned it without even explaining why.

 

What gave rise to the Secretary of State’s complaint?

In short, the Secretary of State took issue with the fact that :

  • Despite the potential deportee( Mr Barry) having been convicted of unlawful wounding with intent to cause grievous bodily and receiving a sentence of three years imprisonment, the First Tier Tribunal nonetheless allowed his appeal against deportation. Mr Barry had relied upon his family life with his British wife and British children.

The Secretary of State’s appeal to the Upper Tribunal was on the basis that the FTT had placed insufficient weight on the seriousness of the offence when weighing up whether there were exceptional circumstances outweighing the public interest in deportation.

To the Court of Appeal, the Secretary of State argued that the FTT concluded that on the facts of the appeal, and applying Rule 398 of the Immigration Rules (in their old form), there existed ‘exceptional circumstances’ which outweighed the public interest in deportation. The ‘exceptional circumstances’ relied upon were not even compelling enough to meet the lower threshold set out in Rules 399(a) and 399(b) of the Immigration Rules and thus the Tribunal approached the test on the wrong basis. This was an error of law and not simply a disagreement with the ultimate conclusion of the FTT and the Upper Tribunal failed to address this.

The Secretary of State submitted that the amendment to paragraph 398 makes it clear that “exceptional circumstances” means more exceptional than the circumstances described in paras. 399 and 399A. It was difficult to see on what basis it could be said that the circumstances were compelling or exceptional over and above the circumstances described in paragraph 399.

 

When previous concessions made by Secretary of State come back to haunt her:

  • The  Court of Appeal observed that the Secretary of State made significant concessions before the FTT regarding the relationships between Mr Barry and his wife and children. She accepted that removal of the father was not in the children’s best interests and that they could not be expected to accompany their father to Guinea.
  • Most of the facts were noted to have been accepted by the Secretary of State. The FTT found that neither parent had other relatives in the UK, that Mr Barry  had performed a significant role in the children’s upbringing and that they formed a strong family unit . The FTT also found that there were insurmountable obstacles to Mr Barry’s ‘s wife relocating to Guinea, because that would leave the children without a primary carer.

 

What the First Tier Tribunal did right:

The Court of Appeal observed as follows in its considerations:

  • The reasons set out by the FTT in its determination were lengthy, careful and thorough.
  • On the basis of the concessions made by the Secretary of State, the FTT directed itself that the core issue was whether there were “exceptional circumstances” which would render Mr Barry ‘s deportation a disproportionate interference with Article 8 rights.
  • The FTT found that the index offence committed by Mr Barry was less serious than it might have been because of the presence of significant mitigating factors and that the risk of further harm to the public was low.
  • The FTT directed itself that Mr Barry would have to identify “very compelling reasons” against deportation following the decision of the Court in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544 and that, in cases of automatic deportation like this one, a “very strong claim indeed” would be required before removal would breach Article 8: SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550; [2014] 1 WLR 998 (Laws LJ).
  • The FTT set out factors in favour of and against Mr Barry. It noted the statutory public interest in deportation, as well as the public interest in deportation to express revulsion and deter other foreign nationals from committing crimes.
  • However, the FTT concluded that there were exceptional circumstances which outweighed the public interest in deportation. It also emphasised that this was a “very strong” Article 8 claim and that it was a “rare case”.

 

The Court of Appeal’s considerations:

The Court of Appeal considered as follows:

  • Nowhere in the judgments of the Supreme Court in Hesham Ali is there any reference to the suggested “primacy” of any factor. To the contrary, there is reference to the need for a balancing exercise to be conducted, which will take into account on one side of the balance the strong public interest in deportation of foreign criminals. The judgment of Lord Thomas CJ makes it clear that a “balance sheet” approach may be helpful in this context as it is in the context of extradition.
  • On the facts of the present case, it was clear that the FTT was well aware of the strong public interest in Mr Barry’s deportation. That is a matter to which it made constant reference in its determination.
  • The Court of Appeal did not agree that questions of mitigation were totally irrelevant to the balancing exercise which the FTT had to perform. It was noted that questions of mitigation would already have played their part in arriving at the appropriate sentence for the underlying offence. However, it must be borne in mind that the three categories which are set out in the Immigration Rules are broad categories. In particular, the most serious category applies to any offender who has been sentenced to a sentence of imprisonment of at least 4 years. However, that can cover a wide range of cases. Although they are all serious, they can vary in degrees of seriousness. In an appropriate case, the Court could see no reason in principle why either aggravating factors or mitigating factors might not be taken into account by the FTT in assessing the seriousness of the offence in question and, accordingly, the strength of the public interest in deportation.
  • In the circumstances of the present case, the fact was that Mr Barry was not merely a student at all relevant times. He married a British citizen in 2009. Although that would not have guaranteed him the grant of leave to remain, and other provisions in the Rules would have had to be satisfied, nevertheless, that factor did entitle the FTT to take the view that Mr Barry’s position was not entirely precarious. Further, the FTT was careful to draw a distinction between the situation at the time of the marriage and the birth of the first child, on the one hand, and what happened later, at the time of the birth of the second child, on the other, when Mr Barry’s situation was indeed precarious.

 

The factors in Mr Barry’s favour:

In the Court of Appeal’s view, the determination by the FTT was a particularly careful and comprehensive one, in which the various factors to be weighed on each side of the balance were clearly and fairly set out. The factors in Mr Barry’s favour were as follows:

  • The best interests of the two children lay very firmly with the family unit remaining together. Those best interests were to be given “very significant weight” in this particular case.
  • The Secretary of State had conceded that the children could not be expected to leave the UK and this was “an important” consideration. The FTT gave “very significant weight” to the fact that the family unit would be separated and that this would be “wholly contrary to the children’s best interests”
  • Mr Barry would also be separated from his wife, with whom he had a genuine and loving relationship. The FTT attached “significant weight” to this consideration.
  • The family unit was not established entirely in precarious circumstances.
  • The FTT saw a public interest in keeping nuclear family units together, subject to other relevant considerations.
  • The FTT took into account the circumstances surrounding the index offence, which it had considered in detail earlier in its determination. They had “particular regard” to the sentencing remarks of HHJ Richardson and placed “significant weight” both upon his view of the offence and upon their own findings in respect of what happened and why. Without such favourable observations by the sentencing judge, their ultimate conclusions might very well have been different: the FTT gave careful consideration to a psychiatric report by Dr El-Fadl, which had been before the sentencing judge. The FTT found that report “to be a reliable source of expert evidence to which we attach significant weight”. It was clear from that report that, at the time of the offence, Mr Barry had been suffering from “substantial anxiety and distress”. The FTT noted that Mr Barry had been admitted to hospital for assessment under section 2 of the Mental Health Act 1983.
  • The FTT found the risk of re-offending to be low.
  • The FTT  was reasonably entitled to come to the conclusion that Mr Barry’s appeal be allowed on the basis that there were exceptional circumstances under Paragraph 398 of the Immigration Rules and that his deportation would be a disproportionate interference with his family life. It could not be said that the determination was irrational.

 

Conclusion

Without the  concessions made by the Secretary of State as well as the meticulous care applied by the FTT in its reasoning process leading to allowing of the appeal, as well of course as the intense preparatory work undertaken by the relevant legal representatives, the outcome in Barry might have been different. There is however no excuse for the behaviour of the Secretary of State: where an Appellant might ultimately be forced to accept defeat following dismissal of an appeal so too should the Secretary of State when an appeal against deportation is allowed by the FTT. As reiterated by the Court of Appeal in Barry: “What is sauce for the goose should also be sauce for the gander. It is not only where the Secretary of State wins before the Tribunals that such an approach is appropriate. Sometimes the Secretary of State loses before the Tribunals and can expect no more favourable treatment in this Court than she would expect to be given to immigrants and asylum claimants when they have lost.”

 

Getting a raw deal: When lodgement of an EEA residence card appeal does not prevent removal

Imagine the following scenarios:

  • Persons seeking to assert a right of residence as extended family members of EEA nationals exercising treaty rights in the UK;
  • Those the Home Office assert are party to a marriage of convenience with an EEA national with the result that, so far as the Home Office is concerned, the applicant is not a family member of an EEA national

This is what can happen when such persons are served with refusal decisions or following lodgement of appeal against such a refusal:

  • Detention with a view to removal and service of a “notice of removal window” (RED.0004 (fresh)). The notice of removal window is usually accompanied by a One-Stop Notice under section 120 of the Nationality, Immigration and Asylum Act 2002 . Section 120(2) provides that the serving of the One-Stop Notice requires the recipient to provide a statement, setting out his or her reasons for wishing to remain in the United Kingdom, and any other grounds on which he or she should be permitted to remain, together with any grounds on which he or she should not be removed from or required to leave the United Kingdom.

An applicant and their EEA national spouse may attend at the Home Office for a marriage interview. Following such interview, if a Home office decision maker concludes that the applicant’s marriage is one of convenience, with an applicant who has overstayed their leave, such a person may have their residence card application refused. Not only that but immediate detention might ensue also with service of a notice of a decision to remove, pursuant to section 10 of the 1999 Act.

Although such a person may lodge an appeal  against the refusal of the EEA residence card application, that statutory right of appeal does not have the effect of suspending the Secretary of State’s power to remove them from the United Kingdom. The person may be lawfully removed from the United Kingdom pending the determination of their EEA residence card appeal.

 

How the problem arises from the statutory provisions – a look at the 2006 EEA Regulations:

Where the Secretary of State decides to remove a person as an overstayer, the power to do so is given by section 10(1)(a) of the 1999 Act.

The 2006 EEA Regulations will continue to apply to some appeals for some time, in particular those appeals which had substantive consideration suspended   by the Tribunal from 2016 pending resolution of the Sala litigation,  ie the resolution of whether EEA extended family members have a right of appeal following refusal of a residence card application. With the decision in Khan v SSHD [2017] EWCA Civ 1755  in the Court of Appeal deciding that the Tribunal does have jurisdiction, more and more of these types of appeals are now being listed to be heard substantively by the Tribunal.   In such cases, the governing Regulations will therefore be those of 2006.

The refusal of an EEA residence card is a “EEA decision” within the meaning of paragraph 2(1)(b) of the 2006 Regulations, which define an EEA decision thus:

“‘EEA decision’ means a decision under these Regulations that concerns a person’s—

(a)entitlement to be admitted to the United Kingdom;

(b)entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, document certifying permanent residence or permanent residence card; or

(c)removal from the United Kingdom.”

The right of appeal against an EEA decision, including the refusal of a residence card, is given by Regulation 26(1)c of the 2006 Regulations.

Regulation 19 of the 2006 Regulations provides that certain appeals under the Regulations are to have suspensive effect.

Regulation 29 of the 2006 Regulations provides in part:

“(1) This Regulation applies to appeals under these Regulations made to the First-tier Tribunal or the Upper Tribunal.

(2) If a person in the United Kingdom appeals against an EEA decision to refuse to admit him to the United Kingdom, any directions for his removal from the United Kingdom previously given by virtue of the refusal cease to have effect, except in so far as they have already been carried out, and no directions may be so given while the appeal is pending.

(3) If a person in the United Kingdom appeals against an EEA decision to remove him from the United Kingdom, any directions given under section 10 of the 1999 Act or Schedule 3 to the 1971 Act for his removal from the United Kingdom are to have no effect, except in so far as they have already been carried out, while the appeal is pending.”

Regulation 2(1) of the 2006 Regulations defines three classes of EEA decision, of which a decision on an application for a residence card is the second, appearing at Regulation 2(1)(b). Regulation 29(2) gives suspensive effect to an appeal against an EEA decision of the kind set out at Regulation(2)(1)(a) and Regulation 19(3) gives such effect to an appeal against an EEA decision of the kind set out at Regulation 2(1)(c). But no suspensive effect is given to a Regulation 2(1)(b) EEA appeal against the refusal of a residence card.

Section 82(1) of the 2002 Act confers a right of appeal against what is there described as an “immigration decision.  Section 78(1) prohibits the removal from the United Kingdom of certain section 82(1) appellants (see section 78(4)) from the United Kingdom while their appeals are pending. Certain provisions of the 2002 Act are by Schedule 1 to the 2006 Regulations to have effect in relation to appeals under those Regulations; but section 78 is not one of them.

 

What is the Upper Tribunal and Court of Appeal’s approach? the 2006 EEA Regulations :

R (on the application of Bilal Ahmed) v Secretary of State for the Home Department (EEA/s 10 appeal rights: effect) IJR [2015] UKUT 436 (IAC):

  • The fact that an applicant who is not an EEA national has a right of appeal under the Immigration (European Economic Area) Regulations 2006 against an EEA decision to refuse him a residence card does not have the effect of precluding the Secretary of State from removing him under section 10 of the Immigration and Asylum Act 1999.
  • Section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002 (as it was before the changes made by the Immigration Act 2014) does not afford an applicant an in-country right of appeal against the section 10 decision, where the issue of whether the applicant is a member of the family of an EEA national is a matter of dispute.
  • The factual issue of whether the applicant is a family member falls to be determined by the First-tier Tribunal on appeal by the applicant against the EEA decision and/or the section 10 decision, whether or not the applicant may by then be outside the United Kingdom. A judicial review by the applicant of the decision to remove and/or the setting of removal directions will not succeed where the applicant’s application is based on marriage to an EEA national, if the Secretary of State reasonably suspects the applicant of being a party to a marriage of convenience.
  • The Upper Tribunal observed that it was submitted on the Secretary of State’s behalf that a judicial review challenge on the decision to remove should be based on normal public law principles, characterising the test as being whether, on the material available to the Secretary of State the applicant was a person “reasonably suspected” of being party to a marriage of convenience. The Upper Tribunal agreed that the applicant’s judicial review could succeed only if the Secretary of State’s categorisation of the marriage as one of convenience was found to be unlawful on public law principles. The Upper Tribunal could see no reason to depart from those principles in this type of judicial review. It was however stated that , any greater intensity of review beyond that advocated by the Secretary of State risks the very abuse which European and domestic lawmakers have been at some pains to avoid.
  • In the present case, the fact that the Secretary of State had a reasonable basis for taking the view that the applicant’s marriage was one of convenience was unarguable. The reasons for refusal letter went into considerable detail regarding problematic aspects of the answers given at interview by the applicant and his wife respectively. The interview record had also been adduced, which provided a basis for the Secretary of State ’s conclusion regarding the nature of the marriage. There was, in short, no irrationality or other public law unlawfulness in the decision to remove.
  • The Upper Tribunal observed that, where Parliament provides for a matter to be determined by appeal, albeit out-of country, there need to be “special or exceptional factors” before a court or tribunal will permit a substantive challenge to a removal decision pursuant to section 10 of the 1999 Act. The rationale is that the appeal affords an adequate alternative remedy. This principle has been trenchantly re-stated in R (Mehmood) and others v Secretary of State for the Home Department [2015] EWCA Civ 744. The Upper Tribunal could not begin to see any such factors in the present case.
  • It followed that although, the applicant remained in the United Kingdom, where his appeal to the First-tier Tribunal had been heard, the decision-making challenged in this judicial review was not unlawful. The applicant had no legal entitlement to remain in the United Kingdom for the purpose of pursuing that appeal.

 

The case of Bilal Ahmed was upheld in the Court of Appeal- Ahmed v Secretary of State for the Home Department [2016] EWCA Civ 303:

  • The right of appeal against an EEA decision, including the refusal of a residence card, is given by Regulation 26(1) of the 2006 Regulations. It is common ground that there is no provision which forbids such an appeal to be brought while the appellant remains within the jurisdiction. But the question is whether the law confers on such an appellant a positive right not to be removed until his appeal has been determined. The Upper Tribunal held (paragraph 26) that: “The basic flaw in the applicant’s case is to conflate the absence of a statutory prohibition on the bringing of an appeal from within the United Kingdom with the existence of a right to be so present in order to bring such an appeal and to prosecute it to its conclusion.”
  • There is nothing in the statutory provisions to give the appellant’s appeal against the refusal of a residence card suspensive effect so as to prevent his removal from the United Kingdom while the appeal is pending. On the contrary, the conferment of suspensive effect on appeals relating to EEA decisions listed at Regulation 2(1)(a) and (c) but not (b) raises the plain inference that it was the specific intention of the subordinate legislator to deny a 2(1)(b) appeal against refusal of a residence card any suspensive effect whatever.
  • At paragraph 26, the Upper Tribunal accepted in terms that there is no “prohibition on the bringing of an appeal from within the United Kingdom” but rightly contrasts this uncontentious fact with the very different proposition that there is a right to be present to bring and prosecute such an appeal. The fact that an in-country appeal in relation to a residence card is not prohibited is simply neutral.
  • The Appellant’s appeal against the refusal of a residence card had no suspensive effect, nor is there any provision conferring upon him a right not to be removed from the United Kingdom during the time provided for the giving of notice of appeal against a refusal of the residence card.
  • Section 92(4)(b) of the 2002 Act refers to a person who is a family member of an EEA national, not a person who claims to be such. The appellant had never sought to appeal the decision to remove him, and his marriage in the event had been definitively held to be one of convenience. He was not a family member of an EEA national(With effect from April 2015, the 2014 Act has substituted an entirely new version of section 92, in which there is no equivalent of former section 92(4)(b)
  • It was for the appellant to establish his EEA claim. That is done in such a case as this by application to the Secretary of State with a right of appeal thereafter, for which however the appellant has no right to be present in this country.

 

Has the position changed following the 2016 EEA Regulations?

Shote, R (On the Application Of) v Secretary of State for the Home Department [2018] EWHC 87 (Admin) :

On 27 February 2017, acting pursuant to Regulation 7 the 2016 EEA Regulations the Secretary of State refused an application made by the claimant on 5 June 2016 for a residence card as confirmation of a right of residence in the United Kingdom as the dependent family member of an EEA national, her Finnish mother. The refusal was on the ground that the Secretary of State was not satisfied that the claimant was genuinely dependent upon her EEA family member. The notice of decision informed the claimant: (a) that she should make arrangements to leave or could be the subject of enforced removal; and (b) she had rights of appeal and to submit a further EEA application if able to demonstrate an EU right of residence. The claimant filed an appeal on 8 March 2017.

The Secretary of State then generated a notice of fresh removal window (form RED.0004) dated 14 March 2017, addressed to the claimant and informing her that her new removal window commenced after 7 days of receipt of the notice (counted as being two working days after posting) and remained in force up to three months, in which time window she could be removed without further notice. When the claimant attended the immigration reporting centre in Croydon on 30 March 2017, in accordance with the terms of her bail, she was served with a letter dated 21 March 2017, notifying her of removal directions for 22:30 on 30 March 2017. She was detained, and served with a notice of immigration detention (form IS91R).

Relevantly the Court considered and concluded as follows:

  • It was submitted on the claimant’s behalf that the appeal against the refusal of a EEA residence card, filed on 8 March 2017, was in law a suspensive in-country appeal, which barred removal action.
  • The Judge could   not accept the claimant’s argument. It was considered that Regulation 36 of the 2016 EEA Regulations provides for the relevant appeal rights. Regulation 37 identifies which appeals can only be pursued out of country, and does not include an appeal against an EEA decision to refuse a residence permit. Regulation 40(2) and (3) identify the situations in which directions for removal are to have no effect while an appeal is pending. Regulation 33(1)(a) and (2) identifies a further situation in which an extant appeal restricts the giving of removal directions, absent certification.
  • These are express, carefully designed protections and the claimant could not demonstrate that she fell within them. The fact that she was not required to appeal only from abroad (Regulation 37) did not mean she was entitled, on having commenced an appeal, not to be removed. That would be to “conflate the absence of a statutory prohibition on the bringing of an appeal from within the United Kingdom with the existence of a right to be so present in order to bring such an appeal and to prosecute it to its conclusion”, which was the “basic flaw” identified in R (Ahmed) v SSHD [2015] UKUT 436 (IAC) at §26, in a passage endorsed by the Court of Appeal [2016] EWCA Civ 303 [2016] Imm AR 869 at §10.
  • Regulation 2 defines “EEA decision” as including “a decision under these Regulations that concerns … (b) a person’s entitlement to be issued with … a … residence card”. That covered this case, but was not a species of EEA decision covered by Regulation 40(2) or (3). Regulation 36(10) and Schedule 2 mean that certain provisions of the Nationality Immigration and Asylum Act 2002 have effect to EEA appeal rights; but those provisions do not include section 78 of the 2002 Act (which prohibits removal from the United Kingdom in certain situations).
  • As Laws LJ (for the Court of Appeal) explained in Ahmed (see [2016] EWCA Civ 303 at §13) – a case which concerned the previous 2006 EEA Regulations (the Immigration (European Economic Area) Regulations 2006) – the “plain inference [is] that it was the specific intention of the subordinate legislator to deny … suspensive effect” to an appeal against refusal of an EEA residence card. The claimant in the present case was unable, in the Court’s judgment, to point to any material distinction between the 2006 and the 2016 EEA Regulations, nor was the Judge shown any conflicting binding authority or overriding and inadequately-domesticated EU right.
  • Also relied upon by the claimant was the argument that she could not be removed pursuant to section 10(1) of the Immigration and Asylum Act 1999 (as amended by the Immigration Act 2014), that being the removal power relied on by the Secretary of State in this case.
  • The claimant’s argument involved the following: (1) Section 10(1) only empowers removal of a person who “requires leave to enter or remain in the United Kingdom but does not have it”. (2) A person who can demonstrate, objectively, that they meet tests of eligibility under the 2016 EEA Regulations so as to have a right to a residence permit (here, as a “family member” through being a “dependant”: Reg. 7) has thereby an entitlement to residence in the UK (Reg 14(2)) and so does not need leave to enter or remain. (3) Where the Secretary of State has wrongly failed to recognise that eligibility, the person asserting it, and able objectively to demonstrate it, is irremovable under section 10(1). (4) That position is given effect by means of the judicial review Court having a precedent fact function, to determine the factual questions of eligibility, in order to determine the legality of removal
  • It was noted that the claimant accepted that this argument would not have been available prior to the 2014 Act amendments to section 10. That is because the pre-2014 Act wording was applicable to a person who previously had leave to enter or remain but had remained beyond the time limited by that leave. That description would have applied to the claimant in the present case, who from August 2005 had been an overstayer.
  • The Court could not accept the claimant’s argument. A person whose claimed eligibility under the 2016 EEA Regulations has been rejected, and who wishes to contest that conclusion through a legal remedy, has statutory appeal rights. In the present circumstances, they are not suspensive. It would subvert that statutorily non-suspensive character if removal could prospectively be challenged on judicial review by determining the merits of that eligibility.
  • The correct analysis, was as follows. A person who claims eligibility under the 2016 EEA Regulations, and whose claim has been rejected by the Secretary of State but is appealable, is a person who “requires” and “does not have” leave to enter or remain for the purposes of the section 10(1) removal power. Eligibility under the 2016 EEA Regulations is not a precedent fact for the purposes of judicial review of the section 10 removal power, nor for the purposes of judicial review of immigration detention. It follows that, on the premise that steps (1) and (2) are correct, steps (3) and (4) are not.
  • The Court of Appeal in Ahmed held that, even where the statutory provision governing removability (section 92(4)(b)) used the express description “a member of the family of an EEA national”, that did not apply (see [2016] EWCA Civ 303 at §24) to “a person who claims to be such”. The Court went on to refer to it being for the individual “to establish his EEA claim”, using the statutory mechanism of “application to the Secretary of State with a right of appeal thereafter” (§27). It was stated if anything, the argument in the present case was harder for the claimant than was the argument in Ahmed. That is because section 10(1) does not use an express description of an EEA family member. The Court of Appeal’s logic was at least as compelling here. An individual cannot avoid the description of a person who “requires leave to enter or remain” by reason of a claimed eligibility, rejected by the Secretary of State and yet to be determined on appeal.

 

Can service of the notice of removal window (Form RED.0004 (fresh)) be appealed?

Ahmad (scope of appeals) Pakistan [2018] UKUT 84 (IAC) (23 January 2018):

  • The Upper Tribunal observed that at  the First-tier Tribunal appeal hearing an argument was advanced on behalf of the appellant, relying upon regulations 2 and 26 of the 2006 Regulations in submitting that a right of appeal did lie in respect of the notice of removal window. Attention was drawn to the definition of “EEA decision” in regulation 2. Such a decision is there defined as “a decision under these Regulations that concerns – “… (c) a person’s removal from the United Kingdom … .” It was submitted to the First Tier Judge that the notice in Form RED.0004 concerned the appellant’s removal from the United Kingdom. It was argued that the notice of removal window constituted an EEA decision, falling within regulation 2. This meant that regulation 26 operated to give the appellant a right of appeal against the EEA decision.
  • The Upper Tribunal rejected these submissions. It was stated that the reason why the notice of removal window does not constitute an EEA decision, within the meaning of regulation 2, is not to do with whether the notice concerns a person’s removal from the United Kingdom. Plainly, the notice of removal window does concern removal.
  • The notice of removal window is, in reality, no more than a statement of a person’s liability to removal from the United Kingdom. That liability arises from the fact that the person in question falls within the ambit of section 10 of the Immigration and Asylum Act 1999, as being a person who requires leave to remain in the United Kingdom, but does not have it. The notice of removal window is not, therefore, a EEA decision, as defined by regulation 2.
  • In any event, even if the notice of removal window could be said to constitute a decision, in the present case, it was manifestly not made under the 2006 Regulations, as required by the definition in regulation 2
  • Regulation 19 contains powers of removal in respect of EEA nationals and their family members. There was no suggestion that, in the present case, that the Secretary of State had decided to remove the appellant pursuant to the powers of regulation 19. The appellant could not, in any case, fall within regulation 19(3), as he was not the family member of an EEA
  • As is clear from the judgment of the Court of Appeal in Ahmed v Secretary of State for the Home Department [2016] EWCA Civ 303, that where the Secretary of State concludes that a person has no EU right to be in the UK; for example, because his marriage is regarded as one of convenience, the Secretary of State may act under section 10 of the 1999 Act to remove the person concerned. The Secretary of State does not and cannot use the power of removal contained in the 2006 Regulations because that person does not fall within the terms of regulation 19. The Secretary of State was  not seeking to remove the person as an EEA national or the family member of such a national.

 

Can Article 8 arguments of the appellant be addressed by a Judge in the residence card appeal?

Ahmad (scope of appeals) Pakistan [2018] UKUT 84 (IAC) (23 January 2018):

  • It was submitted on the Appellant’s behalf that his Article 8 arguments should have been addressed by the Judge in the residence card appeal.
  • It was noted by the Upper Tribunal that this set of submissions depended on a close analysis of regulation 26(7), paragraph 1 of Schedule 1 to the 2006 Regulations, section 85 of the 2002 Act and section 120 of that Act.
  • On the appellants behalf it was put forward that regulation 26(7) states that the provisions of or made under the 2002 Act, referred to in Schedule 1, have effect for the purposes of an appeal under the Regulations, in accordance with that Schedule. Paragraph 1 of Schedule 1 has the effect that the sole permitted ground of appeal under section 84 of the 2002 Act is that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom.
  • It was noted by the Upper Tribunal that Section 85 governs the matters to be considered in an appeal. In an EEA appeal, paragraph 1 of Schedule 1 provides that the references to a section 120 statement (One-Stop Notice) in section 85 include references to a statement under that section, as applied by paragraph 4 of Schedule 2 to the Regulations. Accordingly, it was submitted on the Appellants’ behalf that section 85 of the 2002 Act applied to his EEA appeal. This had two consequences First, section 85(1) required the First-tier Tribunal Judge to consider the Secretary of State’s refusal of 12 July 2017 of the appellant’s human rights claim (which, was certified under section 94). Secondly, it was submitted that, in any event, the appellant had made a statement under section 120 of the 2002 Act and the First-tier Tribunal Judge was required to consider the matters raised in that statement.
  • The Upper Tribunal noted that even though the refusal of the human rights claim was certified, the appellant had a right of appeal, albeit that the certification meant the right was not exercisable until the appellant had left the United Kingdom. However, it was stated that this took the appellant’s case nowhere. Section 92 provided in terms that a claim certified under section 94 must be brought from outside the United Kingdom. Accordingly, the effect of sections 92 and 94 was that the appellant could not pursue before the First-tier Tribunal Judge an appeal against the refusal of his human rights claim. Section 85(1) has to be read in that light.
  • The notice of removal window included a One-Stop Notice under section 120 of the 2002 Act. It was submitted that the appellant’s grounds of appeal to the First-tier Tribunal in respect of the residence card appeal constituted a statement for the purposes of section 120(2). Accordingly, regardless of sections 92 and 94, it was submitted that the service of the One Stop Notice meant that the appellant could, in fact, advance his human rights appeal before the Judge. Reliance was placed upon Paragraphs 36 to 39 of Amirteymour v Secretary of State for the Home Department [2017] EWCA Civ 353
  • The Upper Tribunal considered that the judgment in Amirteymour did not assist the appellant. That case said nothing about certification. It was certainly not authority for a proposition that the mere service of a One-Stop notice had any material effect on the Secretary of State’s power of certification under section 94.
  • Even if the appellant had responded to the One-Stop Notice of 5 July 2017 by providing a statement under section 120 that raised Article 8 grounds, the Upper Tribunal did not consider that – given the certification of the human rights claim – the First-tier Tribunal Judge could have entertained an appeal which involved the claim which had been refused and certified.
  • The reference to Article 8 in the appellant’s grounds of appeal regarding the residence card decision did not constitute “a statement under section 120”. The contents of the grounds were inadequate. The grounds merely asserted, without giving any reasons, that “the decision is a breach of his Article 8 rights” (paragraph 18(2)). However, the clear effect of section 120(4) and (5) is that a statement in response to the notice will only have effect insofar as it constitutes a supplementary statement containing additional reasons or grounds. The appellant’s bare reference to Article 8 did not meet this requirement.
  • Any statement required to be made under that section has to take the form of a statement made to the Secretary of State or an Immigration Officer, as the case may be. Section 120(5) makes this requirement express in the case of subsequent statements; that is to say, where a section 120 notice has been subsequently served.
  • One of the essential purposes of section 120 is to provide a mechanism whereby the Secretary of State can, where appropriate, respond positively to the statement, for example, by granting the person concerned international protection and/or lifting a threat of removal from the United Kingdom. If a person could make a section 120 statement only in his or her grounds of appeal to the Tribunal, the scope for that Tribunal to become the primary decision-maker would be significantly expanded. Thus, the statement has to be given to the Secretary of State or her Immigration Officer.
  • That this is the proper construction of section 120 is, underscored by the distinction drawn in section 85(2) between a “matter raised in the statement” and a “ground of appeal of a kind listed in section 84 against the decision appealed against”. Thus, a section 120 statement, even though not formally repeated in the grounds of appeal, must be considered by the Tribunal. If, as the appellant contended, the grounds of appeal could themselves constitute the statement, one would have expected the statutory provisions to say so.
  • The Upper Tribunal concluded that the First-tier Tribunal Judge was correct to find that, in the circumstances of the appellant’s case, the appellant’s residence card appeal did not require the Judge to address Article 8 of the ECHR.

 

Conclusion

The Secretary of State’s decision to remove is susceptible to judicial review.

One way to obtain an in-country right of appeal, that does not focus upon the non-suspensive EEA residence card appeal, is to respond to the One Stop Notice driving forward a well prepared family life Article 8 claim capable of withstanding the Section 94 certification  procedure. If the human rights claim is accepted, well and good however where an in-country right of appeal is given following a refusal decision, in such circumstances it is possible to obtain some respite whilst being able to remain in the UK to pursue such an appeal through to conclusion.

It may also be possible to obtain a deferral of removal directions without pursuing a judicial review claim: where the Secretary of State has for example refused a residence card application for an extended family member on the basis that insufficient evidence of dependency has been provided, a claimant may seek to cure the defects of the original residence card application by responding to the One Stop Notice and presenting stronger evidence and representations supportive of a new residence card application in the hope that following consideration, a right of residence might be granted on the strength of the new application.

The 7year Rule and parental misconduct: Overstaying, failed asylum claim and use of false documents not fatal to claim decides the Upper Tribunal

Despite the formalisation and introduction of the 7year provisions into the Immigration Rules, in practice the Home Office seem to abhor the very Rule that Government has entrenched into the legal framework.  Where applications placing reliance upon the 7year Rule are refused, at appeal, Home Office Presenting Officers rarely take issue with establishment of fact of the child’s UK residence itself but fervently seek to sustain an attack focused upon the parent’s past conduct and behaviour, with the intended result that the public interest in removal becomes stronger.

The ancestry of Paragraph 276 ADE (1)(iv) is well set out between paragraphs 8 to 17 of PD and others v Secretary of State for the Home Department [2016] UKUT 108 (IAC).   In PD, the Upper Tribunal clarified at Para 12 of their judgement “…….in applications for leave to remain based on Article 8 private life, it has not been sufficient for a child applicant to have accumulated seven years continuous residence in the United Kingdom. Rather, the applicant has also had to demonstrate that he or she could not reasonably be expected to leave the United Kingdom”.

A previous blog post, Children’s residence in the UK: Facets of the 7Year Rule, clarifies as follows:

It is important to note however that the following considerations can be taken into account by the Home Office or a Tribunal Judge  as relevant  when having  regard to the 7year Rule, in particular when applying the  “reasonableness  test”:

  • Parental misconduct taking the form of illegal entry, unlawful overstaying or illegal working
  • Private life formed or developed during periods of unlawful or precarious residence in the UK
  • The child’s best interests may be to remain in the UK, but they could be refused leave to remain, in particular in circumstances where their parents are taken to have shown a disregard of immigration laws, by remaining illegally in the UK

A parent’s adverse behaviour in the UK can therefore at times defeat reliance upon the 7year Rule however hope might lie in a recent Upper Tribunal decision which, very much like the case of PD, seeks to adopt a common sense approach in cases where a parent’s behaviour can be viewed as “run of the mill immigration offending”: MT and ET (child’s best interests; ex tempore pilot) Nigeria [2018] UKUT 88(IAC) (1 February 2018)

 

Summary Background:

MT, the mother and a Nigerian citizen arrived in the United Kingdom with ET, the daughter in July 2007. MT made several applications for leave to remain on Article 8 grounds, which were refused. At some point an appeal was dismissed by the First Tier Tribunal in January 2011.

MT then applied for asylum in 2011, which was refused and certified. Following a successful judicial review by the Home Office made a new decision, carrying an in-country right of appeal. ET appealed to the First-tier Tribunal and her appeal was dismissed by First-tier Tribunal Judge Baird in November 2012.

MT at some stage, received a community order for using a false document to obtain employment.

Further applications ensued, leading to the Home Office decisions in August 2016 to refuse the appellants’ human rights claims.   The appellants appealed to the First-tier Tribunal.  On 6 July 2017, their appeals were heard by Upper Tribunal Judge Martin, sitting in the First-tier Tribunal. She dismissed the appellants’ appeals in an oral (ex tempore) decision delivered at the hearing and subsequently reduced to writing. Permission to appeal was granted by the Upper Tribunal on 26 September 2017.

 

Why Judge Martin erred in dismissing the Appellants’ appeals:

  • It was noted that the appellants’ appeals were dealt with as part of the “Proof of Concept for the Extempore Judgment Pilot 2017”, in relation to which the relevant procedure was described by the Upper Tribunal.
  • The Upper Tribunal however was satisfied that Judge Martin fell into legal error, both as regards the way in which she conducted the Proof of Concept pilot hearing and otherwise. Before the Upper Tribunal, the Home Office Presenting Officer accepted that such errors had occurred.
  • The Proof of Concept letter and the directions issued with it made it clear that the Home Office was expected to identify the factual issues which, if determined in favour of the appellants, would lead to their appeals being allowed. The Upper Tribunal found that it was quite apparent from the Statement of Issues and Response of 15 May 2017, read with the reasons for refusal letter of 16 August 2016, that the Home Office case on Article 8 depended upon Judge Martin finding, as a fact, that ET’s best interests lay in moving to Nigeria with her mother.
  • The Upper Tribunal noted that importantly, there was no indication in the letter that the Home Office was seeking to support the case that, even if ET’s best interests now lay in remaining in the United Kingdom, the particular immigration history of MT was such that the Article 8 proportionality balancing exercise nevertheless fell to be struck in favour of the Home Office, on public interest grounds.
  • It should, therefore, have been apparent to Judge Martin on 6 July 2017 that the decision of the Home Office Presenting Officer to put before the Judge and to seek to rely upon the determination of First-tier Tribunal Judge Baird from 2012 represented a material shift on the Home Office’s part, from her stance as indicated in the Statement of Issues and Response of some seven weeks earlier.
  • The Upper Tribunal considered that it was nothing to the point that the “starred” case of Devaseelan v Secretary of State for the Home Department [2002] IAT 702 requires a judicial fact-finder to take a previous judicial finding of fact in respect of an appellant as the starting point for consideration of that appellant’s current case. Nor was it anything to the point that appellant MT and her advisers could be expected to know about the 2012 determination.
  • The approach taken by the Proof of Concept exercise depended upon the Home Office being willing to state to the First-tier Tribunal that, if certain matters were found in favour of the appellants, then the Home Office accepted that the appeal fell to be allowed. On the facts of the present case, that manifestly did not enable the Judge to embark upon a proportionality balancing exercise that placed weight upon (a) findings from 2012 regarding the reliability of ET’s evidence to Judge Baird; (b) the fact that MT had made “an unfounded asylum claim and was found to be a dishonest witness” in 2012; (c) that she had committed “an offence of fraud”; and (d) that MT had “neither mentioned the previous determination of Judge Baird nor did she mention her education qualifications”.
  • The Upper Tribunal stated that at the very least, what the Judge should have done was to consider whether, in the interests of the overriding objective, the Home Office should have been permitted to change her stance. There was no indication that she considered this point. Were she to have done so and to have decided to allow the Home Office to do so, then the appeal should have been removed from the Proof of Concept programme, so as to enable the appellants to have a fair opportunity of responding.

 

Reference to MA(Pakistan):

The Upper Tribunal noted what the Court of Appeal in MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705  had to say regarding parental conduct at Paragraphs 43 of that Court’s decision:

“But for the decision of the court of Appeal in MM (Uganda),…………I would have focused on the position of the child alone, as the Upper Tribunal did in MAB”,

And Paragraph 45,

However, the approach I favour is inconsistent with the very recent decision of the Court of Appeal in MM (Uganda) where the court came down firmly in favour of the approach urged upon us by Ms Giovannetti, and I do not think that we ought to depart from it. In my judgment, if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the “unduly harsh” concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6)………It seems to me that it must be equally so with respect to the reasonableness criterion in section 117B(6), It would not be appropriate to distinguish that decision simply because I have reservations whether it is correct. Accordingly, in line with the approach in that case, I will analyse the appeals on the basis that the Secretary of State’s submission on this point is correct and that the only significance of section 117B(6) is that where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted.

The Upper Tribunal also observed what the Court of Appeal stated in MA(Pakistan) at Paragraph 46,

“Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise”. Elias LJ then referred to the guidance of August 2015 in the form of Immigration Directorate Instructions entitled “Family Life (as a partner or parent) and Private Life: 10 Year Routes”. There, it is “expressly stated that once the seven years’ residence requirement is satisfied, there need to be ‘strong reasons’ for refusing leave (para 11.2.4)”,

And at Paragraph 49,

“However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child’s best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary.”

 

The Upper Tribunal’s considerations and conclusion:

Having found that Judge Martin’s decision contained errors which were such as to require the Upper Tribunal to set her decision aside, it was decided to proceed to re-make a decision in the appeal, noting that they were not bound by the constraints of the Proof of Concept process.

    • The Upper Tribunal found the fact that ET’s best interests did so lie in the United Kingdom to be manifest. In this regard, the Upper Tribunal agreed with and endorsed the FTT Judge’s findings on this issue in her decision.
    • The Upper Tribunal noted that ET had been in the United Kingdom for over ten years. She arrived in the when she was only 4. She was well advanced in her education in this country. As a 14 year old, she could plainly be expected to have established significant social contacts involving friends in school and outside (such as at church). She had embarked on a course of studies leading to the taking of GCSEs.
    • It was observed that ET had no direct experience of Nigeria. Whether or not there is a functioning education system in that country, her best interests, in terms of section 55 of the 2009 Act, manifestly lay in remaining in the United Kingdom with her mother rather than, as the Home Office contended, returning to Nigeria with her mother.
    • The Upper Tribunal however made it clear that a much younger child, who had not started school or who had only recently done so would have difficulty in establishing that her Article 8 private and family life has a material element, which lies outside her need to live with her parent or parents, wherever that may be. This position, however, changes over time, with the result that an assessment of best interests must adopt a correspondingly wider focus, examining the child’s position in the wider world, of which school will usually be an important part.
    • The Upper Tribunal concluded that this was why both the age of the child and the amount of time spent by the child in the United Kingdom will be relevant in determining, for the purposes of section 55/Article 8, where the best interests of the child lie.
    • It was made clear by the Upper Tribunal that on the present state of the law, as set out in MA, they needed to look for “powerful reasons” why a child who has been in the United Kingdom for over ten years should be removed, notwithstanding that her best interests lie in remaining.
    • The Upper Tribunal found that on the present case, there were no such powerful reasons. The Tribunal acknowledged that the public interest lay in removing a person, such as MT, who had abused the immigration laws of the United Kingdom. Although the Home Office Presenting Officer did not seek to rely on it, the Upper Tribunal took account of the fact that, as recorded in Judge Baird’s decision, MT had, at some stage, received a community order for using a false document to obtain employment. But, given the strength of ET’s case, MT’s conduct in the Upper Tribunal view came nowhere close to requiring the Home Office to succeed and the Presenting Officer did not strongly urge the Upper Tribunal to so find.
    • It was noted by the Upper Tribunal, that on the appellants behalf it was submitted that, even on the findings of Judge Martin, MT was what might be described as a somewhat run of the mill immigration offender who came to the United Kingdom on a visit visa, overstayed, made a claim for asylum that was found to be false and who has pursued various legal means of remaining in the United Kingdom. In response the Upper Tribunal stated that none of this was to be taken in any way as excusing or downplaying MT’s unlawful behaviour. The point was that her immigration history was not so bad as to constitute the kind of “powerful” reason that would render reasonable the removal of ET to Nigeria.
    • The Upper Tribunal found that the decision of the First-tier Tribunal contained a material error of law, set it aside that and substituted a decision of their own, allowing the appeals on human rights grounds (Article 8).

 

 

Conclusion

The decision of the Upper Tribunal is very much welcome and is one to most certainly rely upon in cases where the child’s parents have overstayed in the UK, made several unsuccessful claims or worked illegally in the UK.

Not intending however to put a damper on matters, it is important to observe that the particular facts relevant to MT and ET’s case are such that a Home Office Presenting Officer,  at appeal might be in a position to raise such facts with a view to distinguishing them from a particular instant case so as to convince a Tribunal Judge to dismiss an appeal:

  • The initial Judge could have made a finding that it was not in ET’s best interests to remain in the UK. Although Judge Martin ultimately found that it was reasonable to expect ET to go to Nigeria with her mother, she had however made a finding that ET’s best interests are clearly to live with her primary carer who is her mother and to be in the UK. … [ET] has been in the UK from the age of 4 till the age of 14 and has no memory of Nigeria. She is well integrated in school and socially”.  This finding enabled the Upper Tribunal to readily carry forth that finding, agreeing with and endorsing Judge Martin’s findings on this issue in her decision.
  • What also counted in ET ‘s favour was not just that she had resided in the UK for at least 7years but had in fact lived here for much longer. The Upper Tribunal noted her lengthy residence and observed to her favour that she had resided in the United Kingdom for over ten years( of course if she had been born in the UK and resided here continuously for 10years , she would have been eligible as a child to apply for registration as a British citizen).
  • The Upper Tribunal also observed that there was no indication in the refusal letter that the Home Office was seeking to support the case that, even if ET’s best interests now lay in remaining in the United Kingdom, the particular immigration history of MT was such that the Article 8 proportionality balancing exercise nevertheless fell to be struck in favour of the Home Office, on public interest grounds.  Increasingly however, most refusal letters do now rely upon a parent’s adverse immigration history and it is unlikely that currently Home office decision makers would omit inclusion of such adverse factors in cases where the 7year rule is concerned. The fact that the Home Office did not initially rely upon such matters however enabled the Upper Tribunal in MT to state at paragraph 23 of their decision, The stance of the Presenting Officer on 6 July 2017 was, we consider, analogous with the situation where the respondent seeks to withdraw a concession, previously made in appellate proceedings. In MSM (journalists; political opinion; risk) Somalia [2015] UKUT 413, the Upper Tribunal explained that a judge needs to adopt a broad approach to the issue of whether the respondent should be allowed to withdraw a concession. Amongst other matters, fairness to the litigant will need to be considered (paragraph 24). At the very least, what the Judge should have done was to consider whether, in the interests of the overriding objective, the respondent should have been permitted to change her stance. There is no indication that she considered this point. Were she to have done so and to have decided to allow the respondent to do so, then the appeal should have been removed from the Proof of Concept programme, so as to enable the appellants to have a fair opportunity of responding”.
  • The case of MA(Pakistan) can also be relied upon by the Home Office Presenting Officer to negative effect in particular having regard to paragraph 45 of that decision as it relates to the acceptance that, “the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the “unduly harsh” concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6)…”   This also includes paragraph 47 of MA(Pakistan) which states, “Even if we were applying the narrow reasonableness test where the focus is on the child alone, it would not in my view follow that leave must be granted whenever the child’s best interests are in favour of remaining. I reject Mr Gill’s submission that the best interests assessment automatically resolves the reasonableness question. If Parliament had wanted the child’s best interests to dictate the outcome of the leave application, it would have said so. The concept of “best interests” is after all a well established one. Even where the child’s best interests are to stay, it may still be not unreasonable to require the child to leave. That will depend upon a careful analysis of the nature and extent of the links in the UK and in the country where it is proposed he should return. What could not be considered, however, would be the conduct and immigration history of the parents”.
  • Following on from the above, a Home Office Presenting Officer might also rely upon the case of AM (Pakistan) & Ors v Secretary of State for the Home Department [2017] EWCA Civ 180 to negative effect. It was accepted by the Court of Appeal in AM(Pakistan) that the two teenage children relevant to the case,  were qualifying children who satisfied the seven year rule, and that the parents had a genuine and subsisting parental relationship with them. Notwithstanding that the children’s best interests were to remain in the UK, the First Tier Judge held that they should be refused leave to remain.  The reason was that their parents had shown a blatant disregard to the immigration law, choosing to remain illegally on the expiry of their visas. They did not seek to regularize their status for many years, and even when they did, they remained illegally in the country after their applications had been refused. It was noted that in reaching her conclusion the  FTT judge followed guidance given by the Court of Appeal in EV (Phillipines) and others v Secretary of State for the Home Department [2014] EWCA Civ 874 as to how the balancing exercise should be carried out.  On appeal, the Upper Tribunal was however satisfied that when properly construed, section 117B(6) and paragraph 276ADE(1)(iv) required the court to ask whether it was reasonable or not only from the point of view of the qualifying child.  On that analysis,  the Upper Tribunal concluded that the appeals of the two teenage boys had to succeed in the light of the findings of the FTT judge. The Court in AM(Pakistan) however concluded that it was bound by the decision in MA (Pakistan) as to the proper construction of the provisions in issue, and decided that necessarily it followed that the decision of the Upper Tribunal could not stand.

Overall, it is important to note that as regards the 7year Rule, on appeal the Tribunal will reach different decisions in individual cases, based upon different factual considerations having applied the relevant legal framework and principles arising out of established caselaw.  No two cases are alike.

 

 

Adult Dependant Relatives: Court of Appeal confirms the Rules are “rigorous and demanding”

How old, ill, disabled or bereft of emotional support does an elderly parent have to be in order to satisfy the requirements of the Adult Dependant Relatives Rules?

From recent judgments in the higher courts and in practice generally, it seems that evidence provided in support of applications under this Rule can never be good enough nor sufficient.

In dismissing the appeal, the Court of Appeal in Ribeli v Entry Clearance Officer, Pretoria [2018] EWCA Civ 611 (27 March 2018), has very recently confirmed what most already know- that the Adult Dependant Relatives Rules are “rigorous and demanding”.  The Appellant found no refuge by relying upon Article 8 family life arguments in the alternative.

The Court observed that the Rules were challenged by way of judicial review in the case of BritCits.  The claim failed in the High Court.  It was also noted that the Court of Appeal in R (BritCits) v Secretary of State for the Home Department [2017] EWCA Civ 368; [2017] 1 WLR 3345, dismissed the appeal by the Claimant organisation and held that the changes made to the rules in 2012 had been lawfully made. It was observed at the appeal hearing in Ribeli that the application for permission to appeal in BritCits was subsequently refused by the Supreme Court.

 

Summary Background:

The Appellant in Ribeli , a South African national was born on 8 August 1953.  She suffered from a variety of medical conditions, including a degenerative back disease, osteoarthritis and fibromyalgia. Her application for entry clearance was sponsored by her daughter, a British citizen (but formerly a citizen of South Africa).

The application was refused by the Entry Clearance Officer because he was not satisfied that the Appellant could not obtain necessary care and support in South Africa, as required by Paragraph E-ECDR.2.5, which is part of Appendix FM to the Immigration Rules. The conclusion by the Entry Clearance Officer was that without substantiated evidence that care could be provided locally, he was not satisfied that the Appellant was unable to obtain the required level of care in South Africa.

Following refusal of her application, the First Tier Tribunal( FTT) allowed her appeal. The Entry Clearance Officer  applied for permission to appeal. Following the grant of permission, the Upper Tribunal set aside the FTT decision and dismissed the Appellant’s appeal. The appeal then proceeded to the Court Appeal upon the Appellant’s application.

 

Relevant Rules in Summary – Appendix FM:

E-ECDR.2.1, requires that an applicant be the-

(a) parent aged 18 years or over;

(b) grandparent;

(c) brother or sister aged 18 years or over; or

(d)son or daughter aged 18 years or over of a person (“the sponsor”) who is in the UK.

 

E-ECDR.2.3, states that the Sponsor must at the date of application be-

(a) aged 18 years or over; and

(b)

(i) a British Citizen in the UK; or

(ii) present and settled in the UK; or

(iii) in the UK with refugee leave or humanitarian protection.

 

E-ECDR.2.4, provides that the applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks.

 

E-ECDR.2.5, states that the applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-

(a) it is not available and there is no person in that country who can reasonably provide it; or

(b) it is not affordable.

 

Court of Appeal’s considerations and conclusions under the Rules:

 

  • The Entry Clearance Officer( ECO) was correct in observing that the difficulties experienced by the Appellant could not be as fundamental or severe as was being submitted because, if they had been, she would not be able to wash herself or eat. It was reasonable for the ECO to query the need for clear evidence on what exactly was happening on a day to day basis in the Appellant’s life.
  • It was noted that the Appellant had recently stayed with her daughter in the UK. The Appellant visited her daughter in the UK on two occasions, in 2008 and, more recently, between 28 August and 30 November 2012. Yet nothing in the evidence of either the Appellant or her daughter had said that her condition was so bad that she was not eating properly; that she was not washing herself or anything of that sort.
  • There was no independent evidence that the Appellant was unable, even with the practical and financial help of her daughter and sponsor in the UK, to obtain the required level of care in the country where she was living. That is what the relevant Rules require: see e.g. paragraph 35 of Appendix FM – SE. The only evidence that was placed before the FTT on behalf of the Appellant (the GP’s letter of 18 December 2013) referred only to the Table View area, where the Appellant lives, not to the larger Cape Town area, still less the whole of South Africa.
  • On the subject of waiting lists for care homes in South Africa, there was insufficient evidence to justify the conclusion that there was no care available to the Appellant in the whole of South Africa.
  • There was no independent evidence to support the FTT’s assertion that, without the supervision of a close relative, the delivery of care services in South Africa would be wholly unreliable.
  • There was no independent evidence that the care that the Appellant required was not available in South Africa, even with the practical and financial help of her daughter in the UK.
  • The burden of proof lay on the Appellant to show that she qualified for entry clearance in accordance with the terms of the Rules. Those Rules are “rigorous and demanding”. That was the policy decision of the Secretary of State and was endorsed by Parliament in approving the change to the Rules in 2012. A challenge to that change has been considered and was rejected by the Court in BritCits.
  • What was crucial in the present case was the Appellant’s physical needs. The medical evidence spoke of her emotional needs not in themselves but in so far as a failure to meet them may lead to a deterioration in her physical health, in particular the fybromyalgia. Taken by itself, the Appellant’s mental health (“anxiety and mild depression”) could  not possibly be regarded as being so serious that she could not be cared for in South Africa.
  • As to her physical care needs, the evidence simply did not discharge the burden of proof: it was insufficient to prove that the Appellant’s care needs could not be met in South Africa. There was insufficient evidence as to what particular steps had been taken to obtain a place at a care home elsewhere in that country even if one was not available in her home area.

 

Court of Appeal’s considerations and conclusions under Article 8 of the ECHR outside the Rules:

  • The test under Article 8 is an objective one, whatever the subjective feelings of a person may be. It was noted that for understandable reasons, the Sponsor wanted to continue to have the professional and social life she had built up in the UK and did not wish to return to South Africa. The Court however stated that did not come close to establishing that the ECO’s refusal to grant the Appellant entry clearance constituted a disproportionate interference with Article 8 rights.
  • The starting point is that it is well-established in the authorities that there is no relevant family life for the purpose of Article 8 simply because there is a family relationship between two adults (such as a parent and her child) who live in different countries. There has to be something more than normal emotional ties
  • The crucial point was that the Appellant’s daughter could reasonably be expected to go back to South Africa to provide the emotional support her mother needed as well as to provide practical support. If the concern was that the Appellant might be cared for in her home by people who may turn out not to be trustworthy, there was no reason why her daughter could not live and work in South Africa to supervise the care arrangements made for her mother.
  • What this case was about was the choice which the daughter had exercised and wished to be able to continue to exercise of living and working in a major international centre like London rather than in South Africa, which was her own country of origin. She was entitled to exercise that choice. But, in those circumstances, the Upper Tribunal could not be faulted for having come to the conclusion that any interference with the Appellant’s right to respect for family life conformed to the principle of proportionality.

 

Required Evidence:

Following the Court Appeal’s decision in R (BritCits) v Secretary of State for the Home Department [2017] EWCA Civ 368; [2017] 1 WLR 3345, the Home Office published new Policy Guidance to take that judgment into account. The evidence required to be provided to meet the requirements of the Rules is set out within the Guidance, Immigration Directorate Instruction Family Migration: Appendix FM Section 6.0 , Adult Dependent Relatives, August 2017, Annex FM 6.0: adult dependent relatives .

Evidence of the family relationship between the applicant and the sponsor:

  • This should be in the form of birth or adoption certificates, or other evidence. The ECO will need to assess whether other evidence is needed.

Evidence that, as a result of age, illness or disability, the applicant requires long-term personal care:

  • Medical evidence that the applicant’s physical or mental condition means that they require long-term personal care because they cannot perform everyday tasks, e.g. washing, dressing and cooking. This must be from a doctor or other health professional.

Evidence that the applicant is unable, even with the practical and financial help of the sponsor in the UK, to obtain the required level of care in the country where they are living:

Evidence that the required level of care:

(a) Is not, or is no longer, available in the country where the applicant is living. This evidence should be from a central or local health authority, a local authority, or a doctor or other health professional in the country in question. If the required care has been provided through a private arrangement, the applicant must provide details of that arrangement and why it is no longer available.

(b) Is not, or is no longer, affordable in the country where the applicant lives. If payment is currently being made for care, or was made previously, the ECO should ask to see records of such payments and an explanation of why this payment cannot continue. If financial support has been provided by the sponsor or other close family in the UK, the ECO should ask for an explanation of why this cannot continue or is no longer sufficient to enable the required level of care to be provided.

Evidence of adequate maintenance, accommodation and care in the UK:

Where the sponsor is a British citizen or settled in the UK, the applicant must provide a signed undertaking from the sponsor confirming that the applicant will have no recourse to public funds, and that the sponsor will be responsible for the applicant’s maintenance, accommodation and care, for a period of 5 years from the date the applicant enters the UK if they are granted Indefinite Leave to Enter.

In addition, in all cases the applicant must provide evidence from the sponsor that the sponsor can provide the maintenance, accommodation and care required, in the form of any or all of the following:

(a) Original bank statements covering the last six months;

(b) Other evidence of income – such as pay slips, income from savings, shares, bonds – covering the last six months;

(c) Relevant information on outgoings, e.g. Council Tax, utilities, etc, and on support for anyone else who is dependent on the sponsor;

(d) A copy of a mortgage or tenancy agreement showing ownership or occupancy of a property; and

(e) Planned care arrangements for the applicant in the UK (which can involve other family members in the UK) and the cost of these (which must be met by the sponsor, without undertakings of third party support).

 

Immigration Rules Appendix FM-SE- family members specified evidence:

Immigration Rules Appendix FM-SE: family members specified evidence must be read in mind with Annex FM 6.0: adult dependent relatives and provides as follows in relation to the required evidence:

Adult dependent relatives

33.Evidence of the family relationship between the applicant(s) and the sponsor should take the form of birth or adoption certificates, or other documentary evidence.

34.Evidence that, as a result of age, illness or disability, the applicant requires long-term personal care should take the form of:

(a) Independent medical evidence that the applicant’s physical or mental condition means that they cannot perform everyday tasks; and

(b) This must be from a doctor or other health professional.

35.Independent evidence that the applicant is unable, even with the practical and financial help of the sponsor in the UK, to obtain the required level of care in the country where they are living should be from:

(a) a central or local health authority;

(b) a local authority; or

(c) a doctor or other health professional.

36.If the applicant’s required care has previously been provided through a private arrangement, the applicant must provide details of that arrangement and why it is no longer available.

37.If the applicant’s required level of care is not, or is no longer, affordable because payment previously made for arranging this care is no longer being made, the applicant must provide records of that payment and an explanation of why that payment cannot continue. If financial support has been provided by the sponsor or other close family in the UK, the applicant must provide an explanation of why this cannot continue or is no longer sufficient to enable the required level of care to be provided.

 

Where the Requirements of the Rules are not met- Exceptional circumstances and ECHR Article 8:

Immigration Directorate Instruction Family Migration: Appendix FM Section 6.0, Adult Dependent Relatives, August 2017, Annex FM 6.0: adult dependent relatives , provides the relevant guidance.

Where the applicant does not meet the requirements of the Adult Dependant Relatives Rules, the decisionmaker must go on to consider:

  • Firstly, whether, in the particular circumstances of the case, the ECHR Article 8 right to respect for private and family life is engaged; and
  • If it is, secondly, whether there are exceptional circumstances which would render refusal a breach of Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family.

In order to establish that family life exists between adults who are not partners, there must be something more than such normal emotional ties. Whether such family life exists will depend on all of the facts of the case. Relevant factors will include the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of the family, and the prevailing cultural tradition and conditions in the country where the applicant lives.

Where such family life exists, such that Article 8 is engaged, the decision-maker must assess whether there are exceptional circumstances which would render refusal a breach of Article 8, under paragraph GEN.3.2. of Appendix FM.

Exceptional circumstances

Under paragraph GEN.3.2., where an application for entry clearance or leave to enter or remain under Appendix FM does not otherwise meet the requirements of that Appendix or of Part 9 of the Rules, the decision-maker must go on to consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal a breach of Article 8. A breach will arise if such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.

A “relevant child” is a person under the age of 18 years at the date of application who, it is evident from the information provided by the applicant, would be affected by a decision to refuse the application.

Under section 55 of the Borders, Citizenship and Immigration Act 2009 and under paragraph GEN.3.3. of Appendix FM, the decision maker must take into account, as a primary consideration, the best interests of any relevant child in considering whether there are exceptional circumstances under paragraph GEN.3.2.

“Exceptional circumstances” means circumstances which would render refusal of the application a breach of Article 8, because it would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from the application would be affected.

“Exceptional” does not mean “unusual” or “unique”. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional.

Instead, “exceptional” means circumstances in which refusal of the application would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8.

“Unjustifiably harsh consequences” are ones which involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others.

This involves consideration of whether refusal would be proportionate, taking into account all the facts of the case and, as a primary consideration, the best interests of any relevant child. The case-law makes clear that where the applicant does not meet the requirements of the Rules, and has established their family life in “precarious” circumstances (e.g. when they have limited leave to enter or remain in the UK), something “very compelling” is required to outweigh the public interest in refusal. Likewise, where family life is formed or exists with a person outside the UK who has no right to enter the UK and does not meet the requirements of the Rules for entry clearance, Article 8 does not require that they be granted entry, in the absence of such exceptional circumstances.

 

Conclusion:

The UK Government was fully aware of how near impossible the Adult Dependant Relatives Rules were to satisfy when they came into effect on 9 July 2012, yet the relevant entry clearance fee was set at an exorbitant level. Currently, the fee required to accompany a settlement entry clearance application stands at £3250.00. Tendering of such an amount is tantamount to “buying” a visa however in practice, most applications submitted under these Rules are refused by the entry clearance officer.  In their harsh and rigid approach in consideration of such applications, officials appear to never run out of reasons to put forward as a basis of refusal.

Careful consideration  must therefore be given to obtaining evidence of sufficient strength and reliability, with carefully prepared well considered supportive witness statements in the full knowledge however that even if the application is initially refused, some hope might lie in future success in an appeal before the Tribunal.