In Lal v The Secretary of State for the Home Department [2019] EWCA Civ 1925 (08 November 2019), neither the First Tier Tribunal who allowed the Appellant’s family life appeal nor the Upper Tribunal who overturned that decision got the law quite right.

As summarised by the Court of Appeal, the case raised issues about when refusing the partner of a British citizen leave to remain in the United Kingdom violates their rights to respect for their family life.

In concluding that the “insurmountable obstacles” test to family life continuing outside the UK (in terms of EX.1(b)of Appendix FM of the Rules) had been met, the FTT Judge allowed the appeal on the basis that the Appellant’s husband, a British citizen in his 70’s , who had always lived in the UK, would not be able to move to India if his wife was required to return there as he simply would not be able to cope with the heat in the country. He was also very clear that if his wife was required to return to India that he would not be able to return with her.

On further appeal, following the Secretary of State having applied for permission to appeal, the Upper Tribunal set aside the FTT decision on grounds of error of law, re-made the decision and dismissed the Appellant’s appeal. The Appellant appealed the Upper Tribunal’s decision, with the Court of Appeal subsequently granting permission to appeal as the case was considered to satisfy the test for a second appeal as it not only had a real prospect of success but raised an important point of principle, which was expressed in these terms:

“Is it open to the Upper Tribunal, having left the FTT judge’s findings on the facts undisturbed, namely that the husband of an applicant for leave to remain would not be able to cope with the identified insurmountable obstacles in the country of return and would not be able to return with her, to conclude that the test is not whether the applicant’s husband subjectively cannot surmount those obstacles but whether objectively he should be able do so?”

Background of case

The Appellant, an Indian national born in 1984 arrived in the UK on 24 January 2011 with entry clearance as a Tier 4 (General) Student valid until 10 January 2013. Her leave to remain was subsequently extended until 19 April 2015. On 12 December 2014, the Appellant married a British citizen.

On 17 April 2015 she applied for leave to remain in the UK on the basis of her relationship with him. The application was refused by the Secretary of State in a letter dated 7 July 2015. The sole reason given for deciding that the Appellant did not meet the requirements of Appendix FM for leave to remain as a partner under either the five year route or the ten year route was that the Secretary of State did not accept that the relationship between the Appellant and her husband was genuine and subsisting and that they intended to live together permanently in the UK. The Secretary of State accordingly concluded that she did not meet the requirements of paragraph E-LTRP.1.7. or paragraph E-LTRP.1.10. of Appendix FM. As regards the ten year route, the Secretary of State also concluded that, because the Appellant’s relationship with her husband was not genuine and subsisting, paragraph EX.1. did not apply in her case. In addition, the refusal letter said that the application did not raise any exceptional circumstances which warranted granting leave to remain on article 8 grounds outside the Immigration Rules.

The Appellant appealed from the Secretary of State’s decision to the First-tier Tribunal. The FTT allowed the appeal in a decision promulgated on 6 February 2017. The Secretary of State appealed from the FTT’s decision to the Upper Tribunal. The decision of the Upper Tribunal promulgated on 8 January 2018, set aside the FTT decision, remade the decision in the appeal and dismissed it. The Appellant appealed to the Court of Appeal.

Relevant legal provisions

Section R-LTRP of Appendix FM of the Immigration Rules sets out the requirements to be met for leave to remain as a partner. These include suitability requirements relating to matters such as the applicant’s criminal record, and also eligibility requirements. The eligibility requirements are set out in Section E-LTRP. This has four parts which are concerned, respectively, with the applicant’s relationship, immigration status, financial means and ability to speak English.

The following provisions of Appendix FM are also relevant:

“EX.1. This paragraph applies if – (a)

…………….

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

Since August 2017 the obligation to consider whether there are exceptional circumstances requiring leave to be granted on article 8 grounds has been contained in the Immigration Rules themselves.

Part 5A (sections 117A- 117D) of the Nationality, Immigration and Asylum Act 2002 (inserted by the Immigration Act 2014), also provides in Section 117B:

“Article 8: public interest considerations applicable in all cases ………………………..

(4) Little weight should be given to— (a) a private life, or (b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.

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

Court of Appeal on the “insurmountable obstacles” test

Having noted the British spouse’s evidence before the FTT was that he was a retired man in his 70s who could not bear hot temperatures and that for this reason he felt unable to go, and would therefore not in fact go to India with his wife if she was required to leave the UK, the Court of Appeal concluded that proof of these facts was not by itself legally sufficient to establish insurmountable obstacles for the purposes of paragraph EX.1.(b) of Appendix FM to the Immigration Rules and that the reasons given by the FTT for reaching that conclusion were therefore inadequate.

The Court of Appeal accepted that the phrase “insurmountable obstacles”, as defined in EX.2. of Appendix FM was correctly reflected by the current guidance for officials published on 23 September 2019, “Family Policy: Family Life (as a partner or parent, private life and exceptional circumstances)”, version 3.0, which was an appropriate explanation of the effect of paragraph EX.2. and accordingly of what is meant by “insurmountable obstacles” in paragraph EX.1.(b) of Appendix FM.

The Court of Appeal also provided the following guidance:

• In applying the insurmountable obstacles test, a logical approach is first of all to decide whether the alleged obstacle to continuing family life outside the UK amounts to a very significant difficulty.

• If it meets this threshold requirement, the next question is whether the difficulty is one which would make it impossible for the applicant and their partner to continue family life together outside the UK.

• If not, the decision-maker needs finally to consider whether, taking account of any steps which could reasonably be taken to avoid or mitigate the difficulty, it would nevertheless entail very serious hardship for the applicant or their partner (or both).

The Court stated in Lal that to apply the test in what Lord Reed in the Agyarko case at paragraph 43 called “a practical and realistic sense”, it is relevant and necessary in addressing these questions to have regard to the particular characteristics and circumstances of the individual(s) concerned. Thus, in the present case where it was established by evidence to the satisfaction of the tribunal that the applicant’s partner is particularly sensitive to heat, it was relevant for the tribunal to take this fact into account in assessing the level of difficulty which the British spouse would face and the degree of hardship that would be entailed if he were required to move to India to continue his relationship. The Court of Appeal did not accept, however, that an obstacle to the applicant’s partner moving to India is shown to be insurmountable – in either of the ways contemplated by paragraph EX.2. – just by establishing that the individual concerned would perceive the difficulty as insurmountable and would in fact be deterred by it from relocating to India. The Court stated that the test cannot reasonably be understood as subjective in that sense. To treat it as such would substantially dilute the intended stringency of the test and give an unfair and perverse advantage to an applicant whose partner is less resolute or committed to their relationship over one whose partner is ready to endure greater hardship to enable them to stay together.

On the basis of the evidence of the British spouse and his adult children, the Curt of Appeal considered that the FTT judge was entitled to find, given the general knowledge that India has a hot climate, that the British Spouse’s sensitivity to hot weather would represent a very significant difficulty if he were to move to India but not that it would make it impossible for him to move there.

To decide whether the obstacle would entail very serious hardship for the spouse and was for that reason “insurmountable”, it was necessary in to examine the facts in more detail and to consider questions such as these:

• if the couple had to move to India, where in India could they reasonably be expected to live?

• what are the average temperatures in that part of India during different periods of the year?

• are there steps which could reasonably be taken to mitigate the heat during hot weather, such as air conditioning, and how adequate would such steps be to meet the difficulty?

• are there any cooler places in which it would be practicable for the Appellant and her British spouse to live for all or part of the year?

• the ultimate question was whether, in all the circumstances, the climate would entail not merely a significant degree of hardship or inconvenience for the British Spouse but “very serious hardship”.

The Court of Appeal concluded that the FTT did not undertake a factual enquiry of this sort. The basis on which the FTT concluded that paragraph EX.1.(b) applied was deficient and the Upper Tribunal was right to set aside the FTT’s decision.

The Court considered that there was no evidence addressing any of these matters. In these circumstances the Upper Tribunal judge was entitled to decide that the Appellant had failed to show that her British spouse’s difficulty in coping with heat amounted, on its own, to an insurmountable obstacle to the couple continuing family life outside the UK.

The Court of Appeal however concluded that the Upper Tribunal too erred in their considerations:

• In his decision, the Upper Tribunal judge said nothing further about the British spouse’s difficulty in coping with heat and instead went on to consider the difficulties posed by his age and his ties to the UK.

• In so far as the Upper Tribunal was suggesting that difficulty in coping with heat cannot entail serious hardship “in a country where there is air conditioning and available urban environments built to protect people against the heat”, there was no evidence on which to base such a sweeping statement. Nor, was it known what the judge had in mind when he postulated the existence of such “available urban environments”.

• If the Upper Tribunal judge was intending to suggest that very serious hardship could not be established without medical evidence of a condition that would make exposure to hot weather medically harmful, this could not be accepted. The question was one of fact and there was nothing wrong in principle with basing a finding about a person’s sensitivity to heat on evidence given by the person concerned and members of their family, as the FTT judge did in this case, if such evidence is regarded as sufficiently compelling.

• What the Upper Tribunal judge ought to have done was to identify all the significant difficulties which the British Spouse would face if required to move to India and to ask whether, taken together, they would entail very serious hardship for him. Had the judge approached the issue in that way and considered in combination the British spouse’s age, his proven sensitivity to heat, the fact that he had lived all his life in the UK, and his ties to friends and family including his four children and six grandchildren in the UK, the Court did not think that the answer to the question whether moving to India would entail very serious hardship for him was a foregone conclusion.

The Court of Appeal therefore concluded that, in re-making the decision on the issue of insurmountable obstacles, the Upper Tribunal made an error of law in his assessment which was material. Once again, difference between

Precarious and Unlawful Immigration Status explained: Statutory Interpretation

The Court of Appeal concluded that the Upper Tribunal judge erred when assessing whether there were exceptional circumstances which made refusing the Appellant leave to remain in the UK disproportionate and hence incompatible with article 8, since the Judge concluded as follows:

“So far as concerns her circumstances considering article 8 outside the rules, the difficulties in the way of the claimant being able to succeed are even greater as s.117B(4) of [the 2002 Act] requires me to attach little weight to a couple’s relationship when that has been entered into at a time when the claimant’s immigration status is precarious. When the couple entered into marriage the claimant was an overstayer and she has never had settled status. There are no compelling circumstances that demonstrate that in India the claimant would not be able to live with her husband without serious hardship. Accordingly, I have no alternative but to dismiss the claimant’s appeal.”

The Court of Appeal considered and concluded:

• The Upper judge was wrong to say that section 117B(4) of the 2002 Act required him to attach little weight to a couple’s relationship when that relationship has been entered into at a time when the applicant’s immigration status is precarious. Section 117B(4) does not refer to “precarious” immigration status and only requires little weight to be given to a relationship formed with a qualifying partner that is established by a person at a time when the person “is in the UK unlawfully”. The sole reference in section 117(B) to “precarious” immigration status is in subsection (5). However, subsection (5) provides only that little weight should be given to a private life established at a time when a person’s immigration status is precarious. It does not state – and there is no provision of section 117(B) which states – that little weight should be given to a relationship formed with a qualifying partner established when a person’s immigration status is precarious.

• From the point of view of the Upper Tribunal judge, the error was not material because he was under the impression that, when she married her British Spouse, the Appellant was an overstayer and was present in the UK unlawfully. It was, however, common ground that this was a mistake. The origin of the mistake appeared to be the Secretary of State’s refusal letter which, in summarising the Appellant’s immigration history, failed to mention that, although her original entry clearance was valid only until 10 January 2013, she was granted further leave to remain until 19 April 2015. The Appellant had in fact never been present in the UK unlawfully. The Upper Tribunal judge therefore considered her situation on a false premise.

• Relying on TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109, paragraph 25 on behalf of the Secretary of State, it was argued that, even so, the errors made were not material because, although this is not a requirement of section 117(B), case law establishes that little weight should be given to a relationship formed by a person with a British citizen if that relationship is established at a time when that person’s immigration status is precarious.

• The Secretary of State also relied on a reported decision of the Upper in Rajendran (s117B – family life) [2016] UKUT 138 (IAC), which indicated that, although section 117B(5) of the 2002 Act is confined to “private life” established by a person at a time when their immigration status is precarious, the considerations set out in sections 117A-D are not exhaustive and it is still relevant for a court or tribunal when considering the public interest to have regard to “precarious family life” criteria set out in established article 8 jurisprudence.

• The Court of Appeal in Lal considered that paragraph 108 in Jeunesse v The Netherlands (2014) 60 EHRR 17 and the European Court’s case law, cannot reasonably be read as establishing that, in determining the weight to be given to a couple’s right to respect for their family life, any relationship formed when one partner did not (or did not to the other’s knowledge) have a right of permanent residence in the country should be given little weight; nor that for this purpose all persons who do not have settled status should be viewed identically, regardless of their particular immigration status and history. To the contrary, the European Court has made it clear that, in striking the balance between the right to respect for family life and the state’s interest in controlling immigration, it is necessary to consider the particular circumstances of the individuals involved, including their immigration status and history- para 107 in Jeunesse.

• There are degrees of precariousness in a person’s situation ranging from, at one extreme, someone who is in the country in breach of immigration laws and is liable to removal through to someone who has been present lawfully in the country for some years and is on a pathway to settled status (such as the five or ten year partner route in the UK) but does not yet have indefinite leave to remain. It would be unreasonable to attach equal weight to family relationships established by individuals in such different legal situations and there is no “settled jurisprudence” which requires this. Rather, the Jeunesse case makes clear that a person’s immigration status may greatly affect the weight to be given to their right to respect for family life: see also R (Ali) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799, para 32; GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630, para 33. It was also worth noting that in the Jeunesse case the Court concluded that on the facts refusing the applicant residence in the Netherlands had been a violation of her right to respect for her family life as protected by article 8.

• In Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536, para 39, the Supreme Court recognised that the word “precarious” has been applied both by the European Court of Human Rights and by UK courts to refer to a variety of situations including that of a person unlawfully present as well as the status of a person lawfully present for a limited period. The Supreme Court held that in the context of section 117(B) of the 2002 Act, however, the word “precarious” should be given a bright-line interpretation which excludes anyone present in the UK unlawfully and includes everyone who, not being a UK citizen, is lawfully present but does not have indefinite leave to remain: see paras 43-46.

• As recognised in the Rhuppiah case (at para 37), it is clear that in section 117(B)(5) of the 2002 Act Parliament has deliberately distinguished between an applicant’s private life, to which little weight should be given in so far as it was established at a time when a person’s immigration status is precarious, and his or her family life, which is not the subject of such a requirement. That leaves it open to courts and tribunals in cases where a relationship with a qualifying partner is established at a time when a person is lawfully present in the UK but does not have indefinite leave to remain to give such weight to the relationship as is appropriate in the circumstances of the particular case.

• It is also notable, and unsurprising, that the policy embodied in the Immigration Rules made by the Secretary of State and approved by Parliament for granting leave to remain as a partner of a British citizen (or settled person) attaches importance to the partner’s immigration status and distinguishes between different categories of person whose immigration status is precarious, rather than treating them all in the same way. Thus, the eligibility requirements for leave to remain as a partner quoted distinguish between (i) a person who is in the UK with leave to enter or remain of more than six months, (ii) a person who is a visitor or has valid leave to enter or remain for a period of six months or less, and (iii) a person who is on temporary admission or release (arrangements now replaced by immigration bail) or present in breach of immigration laws. This is consistent with an approach which, in determining whether refusing leave to remain would be disproportionate, gives greater weight to a genuine and subsisting relationship formed by a person who has been permitted by the Secretary of State to reside in the UK for a significant period for the purpose of study or work than to a relationship entered into by someone who is merely admitted for a short visit or whose presence is tolerated only because they have made an asylum claim or other application which has not yet been determined.

• The two cases under appeal in TZ (Pakistan) were both cases in which, on the facts, it was plain that little weight should be given to the appellant’s family life. The Court noted that TZ did not even meet the definition of a “partner” for the purpose of the Immigration Rules as he had not been living with his girlfriend for two years before he applied for leave to remain. The other appellant, PG, having entered the UK as a visitor with a visa of less than five months, married the man who became her husband within six weeks of her arrival. Neither appellant therefore met the immigration status requirements of Appendix FM.

• The general observations made in TZ(Pakistan) at paras 25-27 of his judgement about family life established at a time when a person’s immigration status is precarious were made on the footing that “precariousness includes both those who are in the UK unlawfully and those who are here temporarily” (para 26) before the Supreme Court in the Rhuppiah case held otherwise.

• No point was raised in TZ (Pakistan) about the difference between, on the one hand, section 117B(4) which addresses both a private life and “a relationship formed by a person with a qualifying partner” at a time when the person was in the United Kingdom “unlawfully” and, on the other hand, section 117B(5) which addresses only “a private life” established by a person at a time when the person’s immigration status is “precarious”. In para 27 of the judgment section 117B is said to require that “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 Senior President of Tribunals in TZ(Pakistan) cannot have meant that, as a matter of statutory interpretation, section 117B(4) or (5) requires little weight to be given to a relationship formed with a qualifying partner established at a time when the person was not in the UK unlawfully but their immigration status was precarious. That would be inconsistent with the plain meaning of the statutory provisions. What is apparent from his judgment is that he considered that, in the case of both appellants, their relationship with their partner was far too tenuous to be capable of give rise to exceptional circumstances outweighing the public interest in immigration control. There was, therefore, never any issue whether, as a matter of law, little weight should be given to a substantial family relationship with a qualifying person established at a time when the person was here lawfully but their immigration status was precarious. The observations in paras 25-27 of the judgment of the Senior President of Tribunals in TZ (Pakistan) should not be read as commenting at all on that situation; if they were intended to address it, they are not binding as a precedent because they were not necessary to the court’s decision.

• The Court of Appeal indicated in Lal, that they had no issue with the observations of the Upper Tribunal in the Rajendran case on section 117B and family life. The point is that what weight it is appropriate to give to such a relationship in the proportionality assessment depends on the particular circumstances. The relevant circumstances include the duration of the relationship and the details of the applicant’s immigration history and particular immigration status when the relationship was formed (and when the application was made).

The Court of Appeal concluded that the errors made by the Upper Tribunal in Lal, were not only as to the effect of section 117B(5) and the Appellant’s immigration status but also as to the correct approach in law.

The Court stated that their conclusion on this point accords with the recent decision of the Court of Appeal in GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630, where the tribunal judge was held to have erred in law by treating the “little weight” provisions of section 117B(4) and (5) as relevant to family life as well as private life created when the appellant’s immigration status was precarious, with the result that the tribunal “wrongly discounted the weight to be attached to the family rights relied on in the proportionality assessment” (para 37).

Exceptional circumstances test and consideration of “unjustifiably harsh consequences” factors

The Court of Appeal considered that the Upper Tribunal further erred in applying the wrong test by asking whether the couple would be able to live in India “without serious hardship” as that is a relevant criterion in deciding whether there are “insurmountable obstacles” to continuing family life outside the UK.

In considering, however, whether there are “exceptional circumstances”, the applicable test is whether refusing leave to remain would result in “unjustifiably harsh consequences” for the applicant or their partner, such that refusal would not be proportionate: Agyarko case at paras 54-60.

The essential difference (reflected in the word “unjustifiably”) is that the latter test requires the tribunal not just to assess the degree of hardship which the applicant or their partner would suffer, but to balance the impact of refusing leave to remain on their family life against the strength of the public interest in such refusal in all the circumstances of the particular case. The Upper Tribunal did not undertake such an assessment. This was another error of law which flowed from the errors already identified.

From the judge’s point of view, the question of proportionality had in effect already been answered by his mistaken understanding that he was required by law to attach little weight to the couple’s relationship and his previous finding that there were no insurmountable obstacles to the continuing family life with her husband outside the UK. As a result of those errors, the judge failed to assess the factors relevant to the question of proportionality in the circumstances of the case.

The factors which it was relevant to the Upper Tribunal to consider included the following:

• The FTT’s findings and evidence about the Apellant’s family life with her husband, including the fact that they had been in a relationship since May or June 2012 and living together since July 2014 before marrying in December 2014.

• The facts that the Appellant was present lawfully in the UK when their relationship was established, that she had never been in breach of immigration laws and that she met the immigration status requirements in Section E-LTRP of Appendix FM to the Immigration Rules.

• The facts that no issue had been raised about the Appellant’s ability to speak English or financial independence.

• The facts that the British citizen spouse was aged 73 at the time of the Upper Tribunal hearing, had lived all his life in the UK and that all his friends and family (including his four children and six grandchildren) are in the UK.

• The finding of the FTT that the British spouse would face very significant difficulty in living in India because of his inability to cope with heat.

The Court of Appeal considered that had the correct approach been adopted and the relevant factors considered, there was a real possibility that the Upper Tribunal might have concluded that it would have unjustifiably harsh consequences for the Appellant and her husband, and would be disproportionate, to require the Appellant to leave the UK. The errors of law made by the Upper Tribunal were therefore material.

Court of Appeal allows appeal and takes into account uptodate material change of circumstances

The Court of Appeal set aside the Upper Tribunal’s decision but rather than remitting the case to the Upper Tribunal to re-make the decision, it was considered an appropriate course to invite the Secretary of State to consider the case afresh, as she had made it clear that she would do. There were two reasons for this:

• The Secretary of State’s officials had not yet addressed the relevant questions because, the sole reason given for the decision to refuse leave to remain – since found by the FTT to be erroneous – was that did not have a genuine and subsisting relationship and did not intend to live with her husband permanently in the UK. (The decision also appeared to have been made on the mistaken understanding that the Appellant was an overstayer.)

• Since the Appellant’s application for leave to remain was refused and since her case was considered by the Upper Tribunal, there had been a material change of circumstances which – as discussed in the GM (Sri Lanka) case at paragraph 7 – must now be taken into account.

• The new circumstance was that the Appellant and her husband now had a daughter who was born on 8 June 2019. She is a British citizen and is therefore a qualifying child for the purposes of paragraph EX.1.(a) of Appendix FM to the Immigration Rules and section 117B(6) of the 2002 Act.

• In accordance with those provisions, if on the footing that the Appellant has a genuine and subsisting parental relationship with her daughter, and taking into account the child’s best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK, then paragraph EX.1. applies without the need to show insurmountable obstacles to continuing family life outside the UK and, pursuant to section 117B(6), the public interest does not require the Appellant’s removal from the UK. This was a matter which the Secretary of State accepted that it was now necessary for her officials to consider.

Caselaw considered:

• GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630

• TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109

• Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536

• (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11; [2017] 1 WLR 823

• R (Ali) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799

• Rajendran (s117B – family life) [2016] UKUT 138 (IAC)

• Jeunesse v The Netherlands (2014) 60 EHRR 17