Partners of British citizens with unlawful or precarious immigration status: Appreciating the stringent evaluative mechanism after Agyarko and TZ (Pakistan)
alicemuzira
“In Agyarko the Supreme Court made clear that the scheme established by the Rules and the Secretary of State’s Instructions are lawful and compatible with article 8. Accordingly, the Secretary of State is entitled to apply a test of insurmountable obstacles to the relocation of the family within the Rules and a test of exceptional circumstances as described outside the Rules………Despite the clarity of the conclusions in Agyarko, the appellants seek to persuade the court that there remain important issues relating to how the principles in Agyarko should be applied. Before embarking on a short analysis of those issues, I say at the outset that I am wholly unconvinced that any gloss is needed on the principles described by Lord Reed. I shall at the conclusion of this judgment set out an evaluative mechanism that should be adopted by First-tier tribunals that is consistent with the decisions of the Supreme Court, follows existing good practice across jurisdictions and meets the failure to adequately describe the evaluative judgment undertaken in the reasoning in these cases, despite the fact that the ultimate decisions were and are correct”, said the Court of Appeal in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109 (17 May 2018)
The appeals in TZ (Pakistan) and PG (India) and R (on the application of Agyarko) and Anor v Secretary of State for the Home Department [2017] UKSC 11 were concerned with Article 8 applications made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during the period of their unlawful and precarious residence.
The structure of decision making in applications and appeals of this kind will usually involve the application being considered under the relevant provisions of the Rules and, if the applicant does not qualify under the Rules, outside the Rules to determine whether removal would amount to a breach of article 8.
R (on the application of Agyarko) and Anor v Secretary of State for the Home Department [2017] UKSC 11, relevantly considered the following:
Definition of the expression “insurmountable obstacles” on 28 July 2014 when paragraph EX.2 was inserted into Appendix FM
The correct approach to the removal of non-settled migrants
No gloss needed on the principles described in Agyarko
An evaluative mechanism to be adopted by First-tier tribunals that is consistent with the decisions of the Supreme Court
Reiteration of the Agyarko principles
Relevance of Section 117B of the Nationality, Immigration and Asylum Act 2002
Consideration of article 8 outside the Rules as a proportionality evaluation i.e. a balance of public interest factors
The insurmountable obstacles test and an evaluation of exceptional circumstances
How unlawful and precarious immigration status can arise:
From student, to Post Study Worker to Tier 2 (General) visa then to reliance on family life relationship with British Partner:TZ (Pakistan)
In TZ (Pakistan) and PG (India), TZ had initially entered the UK lawfully as a Tier 4 student in 2008. Subsequently a Post Study work visa valid from 23 January 2012 was granted to expire on 23 January 2014. TZ had by then entered into a relationship with a British citizen. When he applied for a Tier 2 (General) visa, this was refused on 23 March 2014 and on appeal he sought to challenge the Secretary of State’s decision by reliance upon an article 8 ECHR claim. His appeal was dismissed by the First Tier Tribunal( FTT) also having regard to his article 8 claim by reference to paragraph 276ADE and Appendix FM of the Immigration Rules, concluding that TZ had not established insurmountable obstacles to the continuation of family life outside the UK. On Appeal to the Upper Tribunal, that Tribunal dismissed TZ’s appeal on the basis that while the FTT had been in error in not explaining why the terms of Appendix FM and paragraph 276ADE of the Rules were not satisfied, these did not amount to material errors of law. This was because a proper application of the Immigration Rules would have led to the same decision. In short, the Upper Tribunal held that exceptional circumstances would have to exist for the conclusion of an FTT to be any different. The judge could identify no such circumstances.
From visitor visa to reliance on family life relationship with a British Spouse:PG (India)
In TZ (Pakistan) and PG (India), PG last re-entered the UK on 20 September 2013 as a visitor. On 2 October 2013 she met a British national of Indian heritage and they married the following month. Prior to the expiry of her visitor visa she applied for leave to remain as the spouse of a British national. The Secretary of State refused to vary PG’s leave to remain. She appealed the refusal decision. The FTT was satisfied that PG faced insurmountable obstacles to her family life with her husband continuing outside of the United Kingdom for the purposes of paragraph EX.1 (b). Having come to that conclusion the FTT did not need to consider Paragraph 276ADE(1) or article 8 outside of the Rules. Following the Secretary of State’s appeal, the Upper Tribunal found that the FTT had materially erred in law in allowing the appeal on the basis that paragraph EX.1 (b) applied, when in reality PG could not satisfy the provisions of the Immigration Rules because of her precarious immigration status. As such she could only rely on an article 8 claim outside the rules. The Upper Tribunal re-made the decision in favour of the Secretary of State and in doing so placed considerable weight on the fact that PG and her husband were aware of the precarious nature of her immigration status when they decided to marry. The Upper Tribunal also concluded, that PG could be expected to reapply for entry clearance as a spouse from India. At the time of the UT hearing PG was pregnant and she has since given birth to the couple’s first child.
From visitor visa to reliance on family life relationship with a British Spouse:Ms Agyarko
In the Supreme Court case of Agyarko, Ms Agyarko, a national of Ghana entered the UK as a visitor in 2003. Following the expiry of her leave to enter she began a relationship with a naturalised British citizen of Liberian origin who had lived in the UK for almost all his life and was in full time employment. They married by proxy under Ghanaian customary law in 2012. They lived together and had no children together. In September 2012, Ms Agyarko applied for leave to remain in the UK, conceding that her case fell outside the Rules. The application was refused by a notice of decision dated 7 October 2013. The refusal of Ms Agyarko’s application was not appealable. She sought permission to apply for judicial review of the Secretary of State’s decision, but that was refused by the Upper Tribunal. She was granted permission to appeal to the Court of Appeal against that refusal, but her appeal was dismissed.
From visa to reliance on family life relationship with a British Spouse:Ms Ikuga
Ms Ikuga was another appellant with Ms Agyarko in the Supreme Court. Ms Ikuga, a national of Nigeria entered the UK as a visitor in 2008. Following the expiry of her leave to enter, she began a relationship with a British citizen. They never married, and had no children together. In September 2012 Ms Ikuga applied for leave to remain in the UK on the basis that her removal to Nigeria would be in breach of article 8. The application was refused by a notice of decision dated 29 October 2013. On application. Ms Ikuga was refused permission to apply for judicial review of the Secretary of State’s decision. Ms Ikuga was granted permission to appeal to the Court of Appeal, where her appeal was heard together with that of Ms Agyarko, and was likewise dismissed.
The applicable Rules and policy Guidance:
Immigration Rules Appendix FM- family members, provides:
Section GEN: General:
“GEN.1.2. For the purposes of this Appendix “partner” means-
the applicant’s spouse;
the applicant’s civil partner;
the applicant’s fiancé(e) or proposed civil partner; or
a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application, unless a different meaning of partner applies elsewhere in this Appendix.
GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.
(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because 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.
(3) Where the exceptional circumstances referred to in sub-paragraph (2) above apply, the applicant will be granted entry clearance or leave to enter or remain under, as appropriate, paragraph D-ECP.1.2., D-LTRP.1.2., D-ECC.1.1., D-LTRC.1.1., D-ECPT.1.2., D-LTRPT.1.2., D-ECDR.1.1. or D-ECDR.1.2.
(4) This paragraph does not apply in the context of applications made under section BPILR or DVILR.
GEN.3.3.(1) In considering an application for entry clearance or leave to enter or remain where paragraph GEN.3.1. or GEN.3.2. applies, the decision-maker must take into account, as a primary consideration, the best interests of any relevant child.
(2) In paragraphs GEN.3.1. and GEN.3.2., and this paragraph, “relevant child” means a person who:
is under the age of 18 years at the date of the application; and
it is evident from the information provided by the applicant would be affected by a decision to refuse the application,
“EX.1. This paragraph applies ifEX.2. For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner”.
the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.
……………………………….
Immigration Rules Appendix FM-SE Family members specified evidence
Private life. Requirements to be met by an applicant for leave to remain on the grounds of private life, Paragraph 276ADE (1).
Considerations and principles arising out of Agyarko:
The issues raised in Agyarko) and Anor v Secretary of State for the Home Department [2017] UKSC 11 were as follows:
What is the correct approach to the application of article 8 to the removal of a non-settled migrant?
How is the “insurmountable obstacles” requirement in paragraph EX.1(b) of Appendix FM to be interpreted, prior to the 2014 changes to the Rules? Is it in accordance with article 8?
How should “precariousness” be interpreted, and what role does it play in the article 8 assessment?
Is the question whether there are “exceptional circumstances” one which the Secretary of State can properly ask when considering whether to grant leave to remain outside the Rules to a non-settled migrant with a “precarious” family life?
Is Appendix FM unlawful under EU law, or under section 1(1) of the 1971 Act, insofar as it is based on the expectation that a British citizen with a non-national partner can relocate to the partner’s country of origin unless there are insurmountable obstacles to their doing so?
Were the Secretary of State’s decisions lawful on the facts?
The appeals focused primarily on Paragraph EX.1(b) of Appendix FM, which imposes on applicants for leave to remain as a partner, where the applicant is in the UK in breach of immigration laws, a requirement that there are “insurmountable obstacles” to family life with that partner continuing outside the UK; and a requirement in the Instructions that there must be “exceptional circumstances” for leave to remain to be granted in such cases outside the Rules.
Introduction of the definition of the expression “insurmountable obstacles” on 28 July 2014:
The Supreme Court made it clear that at the time when the cases in Agyarko and Ikuga were considered, the Rules did not define the expression “insurmountable obstacles”. A definition was however introduced with effect from 28 July 2014, when paragraph EX.2 was inserted into Appendix FM by the Statement of Changes in Immigration Rules (HC 532, 2014):”For the purposes of paragraph EX.1(b) ‘insurmountable obstacles’ means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”
Paragraph EX.2 applies only to applications decided on or after 28 July 2014.
The correct approach to the removal of non-settled migrants
Ultimately, the question for the European court is whether a fair balance has been struck. As was explained in Hesham Ali Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799, at paragraphs 47-49, that question is determined under UK domestic law by applying the structured approach to proportionality which has been followed since Huang.
Insurmountable obstacles
The Supreme Court noted that in Jeunesse v The Netherlands (2015) 60 EHRR 17, the Grand Chamber identified, consistently with earlier judgments of the court, a number of factors to be taken into account in assessing the proportionality under article 8 of the removal of non-settled migrants from a contracting state in which they have family members. Relevant factors were said to include the extent to which family life would effectively be ruptured, the extent of the ties in the contracting state, whether there were “insurmountable obstacles” in the way of the family living in the country of origin of the non-national concerned, and whether there were factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion.
The Supreme Court stated that it appeared that the European court intends the words “insurmountable obstacles” to be understood in a practical and realistic sense, rather than as referring solely to obstacles which make it literally impossible for the family to live together in the country of origin of the non-national concerned. “Insurmountable obstacles” is the expression employed by the Grand Chamber; and the court’s application of it indicates that it is a stringent test. In Jeunesse, for example, there were said to be no insurmountable obstacles to the relocation of the family to Suriname, although the children, the eldest of whom was at secondary school, were Dutch nationals who had lived there all their lives, had never visited Suriname, and would experience a degree of hardship if forced to move, and the applicant’s partner was in full-time employment in the Netherlands.
The expression “insurmountable obstacles” appears in paragraph EX.1(b) of Appendix FM to the Rules. That paragraph applies in cases where an applicant for leave to remain under the partner route is in the UK in breach of immigration laws, and requires that there should be insurmountable obstacles to family life with that partner continuing outside the UK. The expression “insurmountable obstacles” is now defined by paragraph EX.2 as meaning “very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.” That definition appeared to the Supreme Court to be consistent with the meaning which can be derived from the Strasbourg case law. Paragraph EX.2 was not introduced until after the dates of the decisions in the Agyarko and Ikuga. Prior to the insertion of that definition, it would nevertheless be reasonable to infer, consistently with the Secretary of State’s statutory duty to act compatibly with Convention rights, that the expression was intended to bear the same meaning in the Rules as in the Strasbourg case law from which it was derived. The Supreme Court therefore stated that it interpreted it as bearing the same meaning as is now set out in paragraph EX.2.
The Supreme Court stated that it was important to appreciate that the Rules are not simply the product of a legal analysis: they are not intended to be a summary of the Strasbourg case law on article 8. They are statements of the practice to be followed, which are approved by Parliament, and are based on the Secretary of State’s policy as to how individual rights under article 8 should be balanced against the competing public interests. They are designed to operate on the basis that decisions taken in accordance with them are compatible with article 8 in all but exceptional cases. The Secretary of State is in principle entitled to have a policy of the kind which underpins the Rules. While the European court has provided guidance as to factors which should be taken into account, it has acknowledged that the weight to be attached to the competing considerations, in striking a fair balance, falls within the margin of appreciation of the national authorities, subject to supervision at the European level. The margin of appreciation of national authorities is not unlimited, but it is nevertheless real and important. Under the constitutional arrangements existing within the UK, the courts can review the compatibility of decision-making in relation to immigration with the Convention rights, but the authorities responsible for determining policy in relation to immigration, within the limits of the national margin of appreciation, are the Secretary of State and Parliament.
The Supreme Court noted that the Secretary of State’s view that the public interest in the removal of persons who are in the UK in breach of immigration laws is, in all but exceptional circumstances, sufficiently compelling to outweigh the individual’s interest in family life with a partner in the UK, unless there are insurmountable obstacles to family life with that partner continuing outside the UK, was challenged in the proceedings as being too stringent to be compatible with article 8. It was argued that the Secretary of State had treated “insurmountable obstacles” as a test applicable to persons in the UK in breach of immigration laws, whereas the European court treats it as a relevant factor in relation to non-settled migrants. The Supreme Court noted that was true, but it did not mean that the Secretary of State’s test was incompatible with article 8. The Rules are not a summary of the European court’s case law, but a statement of the Secretary of State’s policy. That policy is qualified by the scope allowed for leave to remain to be granted outside the Rules. If the applicant or his or her partner would face very significant difficulties in continuing their family life together outside the UK, which could not be overcome or would entail very serious hardship, then the “insurmountable obstacles” test will be met, and leave will be granted under the Rules.If that test is not met, but the refusal of the application would result in unjustifiably harsh consequences, such that refusal would not be proportionate, then leave will be granted outside the Rules on the basis that there are “exceptional circumstances”. The Supreme Court considered that in the absence of either “insurmountable obstacles” or “exceptional circumstances” as defined, it was not apparent why it should be incompatible with article 8 for leave to be refused. The Rules and Instructions are therefore compatible with article 8. The Supreme Court however stated that was not to say that decisions applying the Rules and Instructions in individual cases would necessarily be compatible with article 8: that was a question which, if a decision is challenged, must be determined independently by the court or tribunal in the light of the particular circumstances of each case.
Precariousness
The Supreme Court noted that in Jeunesse v The Netherlands (2015) 60 EHRR 17, the Grand Chamber said, consistently with earlier judgments of the court, that an important consideration when assessing the proportionality under article 8 of the removal of non-settled migrants from a contracting state in which they have family members, is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be “precarious”. Where this is the case, the court said, “it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8”.
The Supreme Court further observed that domestically, officials who are determining whether there are exceptional circumstances as defined in the Instructions, and whether leave to remain should therefore be granted outside the Rules, are directed by the Instructions to consider all relevant factors, including whether the applicant “[formed] their relationship with their partner at a time when they had no immigration status or this was precarious”. They are instructed: “Family life which involves the applicant putting down roots in the UK in the full knowledge that their stay here is unlawful or precarious, should be given less weight, when balanced against the factors weighing in favour of removal, than family life formed by a person lawfully present in the UK.”
The Supreme Court concluded that that instruction is consistent with the case law of the European court, such as its judgment in Jeunesse. As the instruction makes clear, “precariousness” is not a preliminary hurdle to be overcome. Rather, the fact that family life has been established by an applicant in the full knowledge that his stay in the UK was unlawful or precarious affects the weight to be attached to it in the balancing exercise.
Whether the applicant is in the UK unlawfully, or is entitled to remain in the UK only temporarily, however, the significance of this consideration depends on what the outcome of immigration control might otherwise be. For example, if an applicant would otherwise be automatically deported as a foreign criminal, then the weight of the public interest in his or her removal will generally be very considerable. If, on the other hand, an applicant – even if residing in the UK unlawfully – was otherwise certain to be granted leave to enter, at least if an application were made from outside the UK, then there might be no public interest in his or her removal. The point was illustrated by the decision in Chikwamba v Secretary of State for the Home Department.
The Supreme Court stated that it was also necessary to bear in mind that the cogency of the public interest in the removal of a person living in the UK unlawfully is liable to diminish – or, looking at the matter from the opposite perspective, the weight to be given to precarious family life is liable to increase – if there is a protracted delay in the enforcement of immigration control. This point was made by Lord Bingham and Lord Brown of Eaton-under-Heywood in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] AC 1159, paras 15 and 37. It was also illustrated by the judgment of the European court in Jeunesse.
In relation to this matter, the reference in the instruction to “full knowledge that their stay here is unlawful or precarious” is also consistent with the case law of the European court, which refers to the persons concerned being aware that the persistence of family life in the host state would be precarious from the outset (as in Jeunesse, para 108). The Supreme Court stated that one could for example, envisage circumstances in which people might be under a reasonable misapprehension as to their ability to maintain a family life in the UK, and in which a less stringent approach might therefore be appropriate.
Exceptional circumstances
The Supreme Court noted that the European court has said that, in cases concerned with precarious family life, it is “likely” only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8. That reflects the weight attached to the contracting states’ right to control their borders, as an attribute of their sovereignty, and the limited weight which is generally attached to family life established in the full knowledge that its continuation in the contracting state is unlawful or precarious. The court has repeatedly acknowledged that “a state is entitled, as a matter of well-established international law, and subject to its treaty obligations, to control the entry of non-nationals into its territory and their residence there” ( Jeunesse, para 100). As the court has made clear, the Convention is not intended to undermine that right by enabling non-nationals to evade immigration control by establishing a family life while present in the host state unlawfully or temporarily, and then presenting it with a fait accompli. On the contrary, “where confronted with a fait accompli the removal of the non-national family member by the authorities would be incompatible with article 8 only in exceptional circumstances” ( Jeunesse, para 114).
The Supreme Court noted that statement reflects the strength of the claim which will normally be required, if the contracting state’s interest in immigration control is to be outweighed. It was noted that in the Jeunesse case, for example, the Dutch authorities’ tolerance of the applicant’s unlawful presence in that country for a very prolonged period, during which she developed strong family and social ties there, led the court to conclude that the circumstances were exceptional and that a fair balance had not been struck (paras 121-122). As the court put it, in view of the particular circumstances of the case, it was questionable whether general immigration considerations could be regarded as sufficient justification for refusing the applicant residence in the host state (para 121).
It was noted that the European court’s use of the phrase “exceptional circumstances” in this context was considered by the Court of Appeal in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544. Lord Dyson MR, giving the judgment of the court, said: “In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual’s article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be ‘exceptional’) is required to outweigh the public interest in removal.” (para 42).
Cases are not, therefore, to be approached by searching for a unique or unusual feature, and in its absence rejecting the application without further examination. Rather, the test is one of proportionality. The reference to exceptional circumstances in the European case law means that, in cases involving precarious family life, “something very compelling … is required to outweigh the public interest”, applying a proportionality test.
The Supreme Court stated that when a court or tribunal is considering whether a refusal of leave to remain is compatible with article 8 in the context of precarious family life, ultimately, it has to decide whether the refusal is proportionate in the particular case before it, balancing the strength of the public interest in the removal of the person in question against the impact on private and family life. In doing so, it should give appropriate weight to the Secretary of State’s policy, expressed in the Rules and the Instructions, that the public interest in immigration control can be outweighed, when considering an application for leave to remain brought by a person in the UK in breach of immigration laws, only where there are “insurmountable obstacles” or “exceptional circumstances” as defined. It must also consider all factors relevant to the specific case in question. The critical issue will generally be whether, giving due weight to the strength of the public interest in the removal of the person in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.
The Supreme Court concluded that it remained the position that the ultimate question is how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions in issue in the present case do not depart from that position. The Secretary of State has not imposed a test of exceptionality: that is to say, a requirement that the case should exhibit some highly unusual feature, over and above the application of the test of proportionality. On the contrary, she has defined the word “exceptional”, as meaning “circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate”. So understood, the provision in the Instructions that leave can be granted outside the Rules where exceptional circumstances apply involves the application of the test of proportionality to the circumstances of the individual case, and cannot be regarded as incompatible with article 8. That conclusion is fortified by the express statement in the Instructions that “exceptional” does not mean “unusual” or “unique”:
Whether the Secretary of State’s decisions on the facts were lawful:
The Supreme Court stated that in considering whether the decision in the case of Ms Agyarko was compatible with article 8, the court had to bear in mind that this was a case of precarious family life, and that therefore, having regard to the Strasbourg case law, a very strong or compelling claim was required to outweigh the public interest in immigration control . The court also had to give due weight to the Secretary of State’s policy, expressed in the Rules and the Instructions, that the public interest in immigration control can be outweighed, when considering an application for leave to remain under the partner route brought by a person in the UK in breach of immigration laws, only where there are “insurmountable obstacles” or “exceptional circumstances” as defined. The Supreme Court noted that there was no evidence placed before the Secretary of State on which a conclusion that there were insurmountable obstacles to relocation in Ghana could reasonably have been reached. There was nothing to suggest that there were “exceptional circumstances” as defined in the Instructions, that is to say, circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate. Considering all relevant factors, Ms Agyarko’s claim could not be regarded as very strong or compelling. Nor was there anything to indicate that Ms Agyarko might come within the scope of Chikwamba.
So far as the application under the Rules was concerned, the Supreme Court stated the judge correctly identified that Ms Ikuga would have to satisfy the “insurmountable obstacles” test in paragraph EX.1(b), and explained convincingly why she could not do so on the basis of the information which she had placed before the Secretary of State. Nothing in the discussion of that test in the Court’s judgment placed in question his conclusion, with which the Court of Appeal agreed, that the test could not possibly be met on the basis put forward on Ms Ikuga’s behalf: in summary, that her partner was in full-time employment in the UK, and she was undergoing fertility treatment. So far as leave to remain was sought outside the Rules, there was similarly nothing in the Court’s judgment which undermined his conclusion, with which the Court of Appeal agreed, that Ms Ikuga had not put forward anything which might constitute “exceptional circumstances” as defined in the Instructions, that is to say, unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate.
Ms Agyarko and Ms Ikuga’s appeals were dismissed by the Supreme Court
Highlighted caselaw:
Jeunesse v The Netherlands (2015) 60 EHRR 17, paragraphs 100, 107, 108, 114, 117, 119, 121, 122
Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799, paragraphs 32, 44 to 46, 47 to 49, 50, 53, 80
Considerations and conclusions in TZ (Pakistan) and PG (India):
both cases concerned foreign nationals who commenced relationships in the UK when they were well aware that their immigration status was precarious.
neither appellant qualified for leave to remain under the Immigration Rules.
neither appeal involved exceptional circumstances to place it in the small class of cases in which leave to remain outside the Rules should have been granted in order to avoid a breach of article 8, and
The principles set out in the judgment of Lord Reed in Agyarko disposed of all of the issues in these appeals.
No gloss needed on the principles described in Agyarko:
The Court of Appeal noted that despite the clarity of the conclusions in Agyarko, the appellants sought to persuade the court that there remained important issues relating to how the principles in Agyarko should be applied. The Court however made it clear from the outset that it was wholly unconvinced that any gloss was needed on the principles described by Lord Reed in Agyarko.
An evaluative mechanism to be adopted by First-tier tribunals:
The Court stated that at the conclusion of its judgment, it would set out an evaluative mechanism that should be adopted by First-tier tribunals that is consistent with the decisions of the Supreme Court, follows existing good practice across jurisdictions and meets the failure to adequately describe the evaluative judgment undertaken in the reasoning in these cases, despite the fact that the ultimate decisions were and are correct.
Reiteration of the Agyarko principles:
The Rules are not and are not intended to be a summary of ECHR case law
It has been held to be lawful for the Secretary of State to set a requirement within the Rules that there be insurmountable obstacles to the continuation of family life in the country of proposed return
The Secretary of State’s ‘Instructions’ to decision makers recognise that there are circumstances outside the Rules in which it will be necessary to grant leave to remain to avoid a breach of article 8. The Secretary of State’s policy is that such leave should only be granted where exceptional circumstances apply, i.e. circumstances in which refusal would result in unjustifiably harsh consequences for the person concerned. The legality of this policy and the test that is articulated were accepted in Agyarko
The settled jurisprudence of the ECtHR is that it is likely to be only in an exceptional case that article 8 will necessitate a grant of leave to remain where a non-settled migrant has commenced family life in the UK at a time when his or her immigration status is precarious. That general principle applies to any consideration of the Rules which involves engaging with a requirement or requirements that possess an article 8 element and to the consideration of article 8 outside the Rules.
Where precariousness exists it affects the weight to be attached to family life in the balancing exercise. That is because article 8 does not guarantee a right to choose one’s country of residence. Both the unlawful overstayer and the temporary migrant have no right to remain in the UK simply because they enter into a relationship with a British citizen during their unlawful or temporary stay. The principle was accepted in Agyarko leading to a statement of general principle at [57]: “In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.”
The effect upon the weight to be attached to family life will depend upon what the outcome of immigration control would otherwise be i.e. the weight of the public interest in removal. Agyarko overtly recognised that precariousness includes both those who are in the UK unlawfully and those who are here temporarily To that extent, the decision of this court to the same effect in Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803, [2016] 1 WLR 4203 is binding.
Relevance of Section 117B of the Nationality, Immigration and Asylum Act 2002:
Section 117B of the Nationality, Immigration and Asylum Act 2002 is also relevant to the weight to be given to private and family life that are established by a person at a time when that person’s immigration status is precarious. In every consideration of any requirement of the Rules that possesses an article 8 element and of article 8 outside of the Rules, if the applicant’s immigration status is precarious, then little weight is to be given to private life or to a relationship formed with a qualifying partner. The same provision also identifies two factors that are to be taken into account in every article 8 consideration: whether the applicant can speak English and whether the applicant is financially independent.
Article 8 outside the Rules – a proportionality evaluation i.e. a balance of public interest factors:
The Court of Appeal stated that the consideration of article 8 outside the Rules is a proportionality evaluation i.e. a balance of public interest factors. Some factors are heavily weighted. The most obvious example is the public policy in immigration control. The weight depends on the legislative and factual context. Whether someone is in the UK unlawfully or temporarily and the reason for that circumstance will affect the weight to be given to the public interest in his or her removal and the weight to be given to family and/or private life which include the distinction between being in the UK unlawfully and temporarily. Decisions such as those in Chikwamba and EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, [2009] AC 1159 describe examples of how the weight or cogency of the public interest is affected. It is accordingly appropriate for the court to give weight when considering the proportionality of interference with article 8 outside of the Rules to factors that have been identified by the Strasbourg court, for example, the effect of protracted delay, the rights of a British partner who has always lived here and whether it can reasonably be expected that s/he will follow the removed person to keep their relationship intact: that is, by way of example, the circumstances identified in EB (Kosovo) or the circumstance described in Chikwamba where the removal of an appellant who is the spouse of a British citizen could be followed by a right of re-entry. The Court of Appeal made it clear however that the list of such circumstances is not closed.
The insurmountable obstacles test andan evaluation of exceptional circumstances:
Where article 8(1) is engaged and the consideration of article 8 outside of the Rules must follow, the tribunal should consider the insurmountable obstacles test within the Rules before considering the exceptional circumstances test outside the Rules.
Where article 8 is in issue within the Rules there will of necessity have to be a conclusion on the question of whether there are insurmountable obstacles to the relocation of the appellant and his or her family. That involves an evaluation or value judgment based upon findings of fact. When a tribunal goes on to consider an article 8 claim outside of the Rules, it will factor into its evaluation of whether there are exceptional circumstances both the findings of fact that have been made and the evaluation of whether or not there are insurmountable obstacles – that being a relevant factor both as a matter of policy and on the facts of the case to the question of exceptional circumstances.
In the circumstance that an FTT does not need to make an evaluation about insurmountable obstacles, the question arises: how does that tribunal or a subsequent tribunal relying on the same facts approach the question of exceptional circumstances outside the Rules? Again, the answer is to be found in Agyarko at [47] and [48]. By reference to Hesham Ali at [44 to 46], [50] and [53], Lord Reed made it clear that in striking a proportionality balance (i.e. when undertaking an article 8 evaluation outside the Rules) a tribunal must take the Secretary of State’s policy into account and attach considerable weight to it ‘at a general level’.
This means that a tribunal undertaking an evaluation of exceptional circumstances outside the Rules must take into account as a factor the strength of the public policy in immigration control as reflected by the Secretary of State’s test within the Rules. The critical issue will generally be whether the strength of the public policy in immigration control in the case before it is outweighed by the strength of the article 8 claim so that there is a positive obligation on the state to permit the applicant to remain in the UK. The framework or approach in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368 at [17] is not to be taken to avoid the need to undertake this critical balance
That leaves the question of whether the tribunal is required to make a decision on article 8 requirements within the Rules i.e. whether there are insurmountable obstacles, before or in order to make a decision about article 8 outside the Rules. The policy of the Secretary of State as expressed in the Rules is not to be ignored when a decision about article 8 is to be made outside the Rules. An evaluation of the question whether there are insurmountable obstacles is a relevant factor because considerable weight is to be placed on the Secretary of State’s policy as reflected in the Rules of the circumstances in which a foreign national partner should be granted leave to remain. Accordingly, the tribunal should undertake an evaluation of the insurmountable obstacles test within the Rules in order to inform an evaluation outside the Rules because that formulates the strength of the public policy in immigration control ‘in the case before it’, which is what the Supreme Court in Hesham Ali (at [50]) held was to be taken into account. That has the benefit that where a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person’s article 8 appeal, provided their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed.
Structure for judgments in the FTT:
The Court of Appeal stated that there exists a structure for judgments in the FTT where article 8 is engaged. That was referred to by Lord Thomas in Hesham Ali at [82 to 84] and recommended by him. The Court of Appeal stated that it strongly endorsed his recommendation. Although there is no obligation in law for a tribunal to structure its decision-making in any particular way and it is not an error of law to fail to do so, the use of a structure in the judgments in these appeals would almost certainly have avoided the appeals, given that the ultimate conclusion of the tribunals was correct. To paraphrase Lord Thomas: after the tribunal has found the facts, the tribunal sets out those factors that weigh in favour of immigration control – ‘the cons’ – against those factors that weigh in favour of family and private life – ‘the pros’ in the form of a balance sheet which it then uses to set out a reasoned conclusion within the framework of the test(s) being applied within or outside the Rules. It goes without saying that the factors are not equally weighted and that the tribunal must in its reasoning articulate the weight being attached to each factor.
Application of the Agyarko principles to the appeals:
The Court of Appeal concluded that TZ’s appeal could not succeed under the Rules. His family life, i.e. his relationship with his girlfriend, had not been a cohabitation subsisting for two years before the application and so he did not meet the definition of a ‘partner’ under Appendix FM to the Rules. It was not necessary to dwell on the detail to any greater extent save that it ought to be said that the findings of fact that were made are unassailable. Although the FTT identified the right article 8 test within the Rules and identified the relevance of the question of precariousness, it could not be said that any account was taken of the fact that TZ’s relationship began at a time when his immigration status was precarious. It was also difficult to isolate out the article 8 decision made by the FTT within the Rules from that made outside the Rules. The FTT judge’s determination within the Rules did not need to consider article 8. TZ had not pursued an article 8 case within the Rules and his case was hopeless on every other issue. The Upper Tribunal was correct to conclude that the FTT had failed to identify why the Rules could not be satisfied and was correct to question whether a balancing exercise which had regard to the exceptional circumstances test had been conducted in an evaluation of article 8 outside the Rules. Having identified the need for an article 8 evaluation outside the Rules the Upper Tribunal was right to undertake it and conclude that there was nothing including the potential relevance of alleged circumstances analogous to EB (Kosovo) which demonstrated exceptional circumstances so compelling that they outweighed the public interest in immigration control. The facts of the case were not analogous to the circumstance in Chikwamba because the outcome of a subsequent entry clearance application by TZ was not certain: both the nature and extent of his relationship with his girlfriend and his financial situation at that time will be relevant. On the facts as found and having regard to the test to be applied, there was no obligation on the state to permit TZ to remain in the UK. The Upper Tribunal was right to dismiss the appeal and accordingly, the Court of Appeal dismissed the appeal against the decision of the Upper Tribunal in respect of TZ.
The Court of Appeal noted that the FTT allowed PG’s appeal on the basis that she qualified for leave to remain under paragraph EX.1(b). That was considered by the Court of Appeal to be a clear error of law because PG was a visitor. PG did not meet the requirements of E-LTRP.2.1. Her status was precarious. While in the UK as a visitor, with a visa of less than five months, she began a relationship with the man who became her husband only days after she arrived and they were married one month later. The only decision that was relevant was accordingly an article 8 consideration outside the Rules which was not undertaken by the FTT. The Upper Tribunal was right to set aside the FTT’s decision and to re-make it. There was no part of the FTT’s decision that survived the error of law that the judge made. The findings of fact made by the Upper Tribunal were unassailable. PG’s immigration status was precarious although she was not in the UK unlawfully. Section 117B of the 2002 Act applied. The Upper Tribunal considered the Secretary of State’s policy within the Rules concluding that there were no insurmountable obstacles to the family’s relocation to India and that that was a factor to be put into the balance in deciding whether there were exceptional circumstances outside the Rules requiring the grant of leave to remain. The FTT’s contrary conclusion on insurmountable obstacles fell with the error of law that it made. There was no arguable basis upon which it could be sustained. The Upper Tribunal concluded that there was no very strong or compelling claim that outweighed the public interest in immigration control and accordingly that there were no exceptional circumstances. The Upper Tribunal decided on sufficient grounds that it was not obtuse for PG to make a further application for re-entry in all the circumstances of the case so that this was not a Chikwamba case. The findings which were weighed and balanced included PG’s marriage while her status was precarious (and the expected birth of their child), her husband’s British citizenship, the fact that the families are from different parts of India and would suffer some language issues and critically, the fact that PG’s husband may not relocate with her. Given the weight to be accorded to family and private life in a precarious status case such as this, these were neither insurmountable obstacles nor exceptional circumstances and accordingly the state was not under a positive obligation to permit PG to remain in the UK. The Upper Tribunal was right to dismiss PG’s appeal and the Court of Appeal also dismissed her appeal.
Conclusion
Having regard to the four appeals in Agyarko and TZ (Pakistan) and PG (India), it is clear that overstaying leave to enter/remain or even having temporary residence and then seeking to apply for leave to remain based on a subsequent marriage or a relationship with a British partner resident in the UK, does not guarantee success in the outcome of an application.
It will however be evident that when the relevant negative decisions were made either by the Secretary of State or the Tribunal, none of the appellants had children with their British Partners. Had minor children under the age of 18years been involved, the focus of considerations and exceptional circumstances applicable would have taken a different trajectory. Having regard therefore to the case of PG, who had given birth to a British citizen following the Upper Tribunal’s decision, there was nothing to stop her thereafter from submitting a further application for leave to remain placing reliance upon the fact of having a British citizen child in the UK and seeking to argue that it would be unreasonable to expect the British child to leave the UK.
It is important to be alert to the fact that sometimes, in some cases, upon refusal of applications from overstaying partners, where children are not involved, the Secretary of State on occasion certifies such claims as clearly unfounded under Section 94 of the 2002 Act, thereby denying the claimant an in- country right of appeal. Although such certification can be challenged by way of judicial review, the less effective the preparation in application, the more the chances of certification upon refusal of an Article 8 claim.
Despite the stringent application of the principles arising out of Agyarko, claims for leave to remain made by an overstaying Partner can still succeed, whether at initial decision making by the Secretary of State or on appeal. Depending on the facts of a case, the key lies in detailed fact gathering, full and effective preparation of representations and supportive statements in support of such applications. Evidence going towards the facts of the case in relation to evidencing either the insurmountable obstacles or exceptional circumstances must be presented from the outset so as to increase the chances of success.
Following R (on the application of Agyarko) and Anor v Secretary of State for the Home Department [2017] UKSC 11 and TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109 (17 May 2018), the Upper Tribunal should, in an appropriate case, now take the opportunity to consider and promulgate a well reasoned and considered decision closely following the Agyarko principles. This would serve as exposition in relation to how exactly the Court of Appeal wants the Tribunal to undertake the relevant evaluation in these types of appeals.
