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[2017] CSIH 43



Lord Drummond Young

Lady Clark of Calton

Lord Malcolm



in the Petition



Petitioner and Reclaimer




For Judicial Review of a decision of the Secretary of State for the Home Department

Dated 17 August 2015


Defender and Respondent

Petitioner and Reclaimer:  Caskie;  Drummond Miller LLP (for Latta & Co)

Defender and Respondent:  Komorowski;  Office of the Advocate General

7 July 2017

[1]        This reclaiming motion challenges a decision of the Lord Ordinary ([2016] CSOH 122) to refuse a petition for Judicial Review raised by the petitioner in which he sought to reduce a decision of the respondent dated 17 August 2015.  The decision for this court is whether the Lord Ordinary erred in law in the Judicial Review proceedings when she concluded in paragraph 34:

“… I can discern no error in the respondent’s approach to the material submitted by the petitioner in August 2015, far less any material error.  I will sustain the plea in law for the respondent and refuse the petition …”.  


[2]        The petitioner is a 23 year old citizen of India.  He arrived in the United Kingdom on or about 25 January 2012 and entered with a Tier 4 student visa which was valid until 11 July 2014.  He attended South Lanarkshire College under some form of scholarship programme for a period then stopped attending.  On 13 January 2014 his leave to remain was curtailed and varied to expire on 14 March 2014 with no right of appeal.  In about February 2013 he met KD, a British National who was a student at university and also in employment.  On 23 September 2013, South Lanarkshire College withdrew the petitioner’s scholarship due to his non-attendance and poor progression.  After 2013 the petitioner worked for a period in breach of the conditions of his visa.  On 8 February 2014 he was served with a notice relative to his breach of employment restrictions.  On 21 May 2014 the petitioner married KD who was aware of his precarious immigration status.  On 7 July 2014, the petitioner submitted an article 8 ECHR application to the respondent based on his relationship and marriage with KD.  The application was refused.  The petitioner appealed against that refusal.  On 25 September 2014, the immigration judge who heard the appeal issued a determination and reasons in support of the respondent’s decision.  Applications to appeal against the immigration judge’s decision were refused and the petitioner became appeal rights exhausted on 31 March 2015.  On 29 July 2015 he was detained and removal directions were set for19 August 2015.  On 12 August 2015, through new agents, the petitioner made further submissions to the respondent in terms of Rule 353 of the Immigration Rules and asked that the representations be considered as a fresh human rights claim.  In a decision letter of 17 August 2015, the respondent rejected the petitioner’s further representations.  The petition for Judicial Review sought to challenge that decision.  The Lord Ordinary refused the petition on the basis that there was no material error of law.  The decision of the Lord Ordinary is challenged in this reclaiming motion. 


The Decision of the Lord Ordinary

[3]        The decision of the Lord Ordinary predated Agyarko v Secretary of State for the Home Department [2017] 1 WLR 823.  Some of the main issues disputed before the Lord Ordinary by the petitioner were no longer disputed in the reclaiming motion.  There was no dispute before this court or the Lord Ordinary about the general principles which apply to cases in which the respondent considers and determines further representations under Rule 353 of the Immigration Rules.  The Lord Ordinary set out in paragraphs 2 and 3 of her opinion the general approach to be adopted by the court in Judicial Review of such a decision.  The Lord Ordinary also properly recognised that she required to consider the provisions of section 117B of the Nationality, Immigration & Asylum Act 2002 as amended (the 2002 Act) brought into force on 28 July 2014.  The Lord Ordinary did not accept the submissions on behalf of the petitioner and for the reasons given in her opinion refused the petition.


Submissions by Counsel for the Petitioner
[4]        Counsel adopted his detailed written note of argument and formally abandoned Ground (c) of his appeal grounds which criticised the approach of the Lord Ordinary to the interpretation of section 117B (4) and (5) of the 2002 Act.  He also accepted that the petitioner (for the purposes of this litigation) does not meet the substantive Immigration Rules which set out rules re qualification.  His claim must therefore be considered outwith the Immigration Rules.  He sought to draw assistance from Agyarko, in particular paragraphs 54 to 60 which deal with the balancing exercise to be carried out in cases, such as the present case, concerned with precarious family life where it is likely only to be in exceptional circumstances that the removal of the non‑national family member would constitute a violation of Article 8.  There is no test of exceptionality.  The approach which should be adopted by a court or tribunal in considering whether a refusal of leave to remain is compatible with Article 8 in the context of precarious family life is set out by Lord Reed JSC in paragraph 57:

“… Ultimately, it has to decide whether the refusal is proportionate in the particular case before it, balancing the strength of the public interest and 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 including, where relevant, the matters discussed in paras 51-52 above.  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”.


Counsel emphasised that the ultimate question was how a fair balance should be struck between the competing public and individual interests when applying a proportionality test.  In the circumstances of the present case, the result of the balancing exercise would result in unjustifiably harsh consequences for the petitioner and his wife so that the refusal of the application would not be proportionate.  Counsel referred to the detailed material sent to the respondent by letter dated 12 August 2015, and submitted that it was plain that the petitioner had become a very important part of an extended family life with his wife KD.  This information included the affidavit of KD, the wife of the petitioner, who for the reasons given in her affidavit refused to relocate to India.  Counsel submitted that the fact that KD was at the relevant time in her final year of study for a university degree was a very unusual and important factor.  He appeared to concede that, but for the fact that KD was at a critical stage of her university career, the application would not succeed.  Taking all the matters into consideration, counsel submitted that both the Lord Ordinary and the respondent were wrong in their conclusion that the new material submitted is not significantly different from the previous material and that taken with previous material it creates a realistic prospect for success of the petitioner’s claim.  Counsel prayed in aid Khan v SSHD [2016] SC 536 and EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159.

[5]        In developing specific criticisms of the Lord Ordinary‘s decision making, counsel focussed on paragraph 30 of her opinion and submitted that she misinterpreted section 117B of the 2002 Act when she referred to the statutory provision as “a direction”.   Further the Lord Ordinary erred in concluding that “there was nothing new in the petitioner’s case” in paragraphs  28 and 29.  Plainly the relationship of the petitioner and his wife had strengthened over a period of time and the petitioner was embedded in a web of family relationships.  The Lord Ordinary had also misinterpreted Mirza v Secretary of State for the Home Department [2015] SC 572 in her approach set out in paragraphs 29 and 31.  This was a case in which the wife of the petitioner clearly stated that she had decided that she was not going to go to India for the reasons she gave.  She was not in a dilemma.  She had made her decision.  Finally the Lord Ordinary had failed in paragraph 33 to recognise that the situation had materially changed in relation to family life and to KD’s course at university.  KD had been accepted on the Honours course in her fourth year.  These were facts which post‑dated the decision making of the respondent in 2014 and fell into the category referred to in Devaseelan v Secretary of State of the Home Department [2002] UK IAT 702. Facts about matters which post‑dated the first adjudicator’s determination can always be taken into account.

[6]        In conclusion, counsel asked the court to consider the decision letter of the respondent dated 17 August 2015. The respondent did not address the rights of KD, the petitioner’s wife.  Her position is “almost invisible”.  Her status and rights as a British citizen, her training and experience are all important factors to which it appears no weight is given by the respondent.


Submissions by Counsel for the Respondent
[7]        Counsel for the respondent invited the court to refuse the reclaiming motion.  The question for the court was whether the respondent was entitled to find that the petitioner’s renewal of a family life claim rejected 10 months before by an independent specialist tribunal did not create a realistic prospect of success in a second statutory appeal. He submitted that the petitioner’s presence during those 10 months continued to be unlawful and nothing had taken place between the determination of the appeal and the further submissions other than the normal continuation and development of the petitioner’s married life.  This is a straightforward case in which the answer is obvious.  The respondent was plainly entitled to make her decision and the Lord Ordinary had properly interpreted and applied the law and had reached the correct decision.  The “new” material relied on by the petitioner is the affidavit from the petitioner’s wife in which she stated inter alia that she will not follow the petitioner to India;  the development of the marital and family relationships;  and the progress of KD in her university degree course.  Counsel submitted that there was no real difference in these facts compared with the facts earlier considered by the respondent.  In this case there is no dispute that the marital and family life were developed when both parties were aware that the immigration status of the petitioner was precarious;  the petitioner’s presence was unlawful for a period before and at the time of the marriage;  and the petitioner accepted that his case can only succeed outwith the Immigration Rules.  There were no exceptional circumstances as properly understood.  Reference was made to Khan paragraph 19;  Agyarko paragraphs 49, 57 and 60;  and Rhuppiah v SSHD [2016] 1 WLR 4203 paragraph 54.


Decision and Reasons
[8]        There was no dispute in this case about the meaning and general approach to be applied when considering information advanced for the purposes of Rule 353 of the Immigration Rules.  The Lord Ordinary summarised this in paragraphs 2 to 3 of her opinion.  We have considered the material presented, on behalf of the petitioner, in the letter dated 17 August 2015 in support of the request to have the application considered further.  In advancing the case for the petitioner, counsel prayed in aid the approach approved by Lord Reed JSC in Agyarko and addressed in some detail the factors which he said brought this case within the meaning of “exceptional circumstances” as defined.  Counsel accepted that in a case such as the present, concerned with precarious family life, a very strong compelling claim was required to outweigh the public interest in immigration control.  We cannot accept his submission that the educational history and attainment of the petitioner’s wife, however meritorious, is the added factor which according to counsel should persuade this court that the Lord Ordinary was wrong in her conclusion in paragraph 34 that there was “no error in the respondent’s approach to the material submitted by the petitioner in August 2015, far less any material error”.  This is a case in which it is not disputed that the family life and marriage of the petitioner and his wife were developed and carried out in the full knowledge of the petitioner’s precarious immigration status.  It is a case to which section 117B of the 2002 Act applies.  We consider that the Lord Ordinary in paragraph 30 properly summarised the effect of section 117B of the 2002 Act.  She stated that:

“the legislation requires the relevant court or tribunal to have regard to the considerations listed in section 117B … the effect of subsection (4) and (5) are the same in that, regardless of whether one is dealing with unlawful presence in the UK or precarious immigration status, the effect has required the decision maker to bear in mind that little weight should be given to private or family life established in those situations.”


We agree with that analysis.  We do not consider that the Lord Ordinary is mistaken about the legal effect of section 117 of the 2002 Act.  The statutory provisions are a direction to the decision maker that the section must be taken into consideration but not a direction as to the outcome of the decision.  That is a matter for the decision maker.  The considerations relied upon by the Lord Ordinary at paragraph 30 related to different submissions which were not a live matter before this court. 

[10]      We are also unpersuaded by counsel for the petitioner that the Lord Ordinary erred in paragraphs 28 and 29.  We consider that the Lord Ordinary was entitled to conclude that there was nothing new bearing upon the proportionality assessment.  Some 10 months had passed in which the petitioner and his wife developed their private and family life, the petitioner’s wife commenced the next year of her university course and  she reached a decision that she was not prepared to leave the UK and go to India.  Much the same considerations were weighed and assessed by the immigration judge in the decision of 25 September 2014.  In any event in the context of this case we do not consider it is a useful exercise to analyse whether this should be classified as “new” material or “new facts”.  We are of the opinion that the Lord Ordinary was entitled to conclude that, taken together with the previously considered material, the information presented on 12 August 2015 did not create a realistic prospect of success before another immigration judge.

[11]      For these reasons we refuse the reclaiming motion.  We uphold the interlocutor of the Lord Ordinary dated 17 August 2016 in which the Lord Ordinary sustained the first plea in law for the respondent and refused the petition.  All questions of expenses are reserved.