APPLICATION FOR LEAVE TO APPEAL BY (FIRST) MUHAMMED SIBTAIN AND (SECOND) MUHAMMAD HASNAIN AGAINST A DECISION OF THE UPPER TRIBUNAL
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 55
XA52/15
Lord Menzies
OPINION OF LORD MENZIES
in the application for leave to appeal
by
(FIRST) MUHAMMED SIBTAIN; and (SECOND) MUHAMMAD HASNAIN
Applicants
against
a decision of the Upper Tribunal
Applicants: Devlin; Drummond Miller LLP
Respondent: McIlvride QC; Office of the Advocate General
14 July 2017
[1] In these two conjoined applications for leave to appeal under section 13(4) of the Tribunals, Courts and Enforcement Act 2007 and Rule of Court 41.2, the applicants are two brothers who are nationals of Pakistan, and who reside there. They married two sisters at a joint wedding in Pakistan on 23 April 2009. Both sisters had come to the United Kingdom several years earlier and had obtained UK citizenship before their marriage. There are now children of each applicant’s marriage. The children are British citizens. The children reside with their mothers in the United Kingdom.
[2] On 9 March 2013 the applicants each applied to the entry clearance officer at Islamabad for settlement in the United Kingdom as the spouses of the sisters. In June 2013 the entry clearance officer refused both applications. The applicants appealed against this decision to the First‑tier Tribunal. By decisions dated 24 March and promulgated 25 March 2014 the First‑tier Tribunal dismissed the appeal under the Immigration Rules, it having been accepted that the applicants did not meet the financial requirements of Appendix FM of the Rules as to a gross income of £18,600 per annum or substantial savings. However, the FTT judge found that refusal of the appeals would result in a disproportionate interference with the Article 8 rights of each appellant, having regard to the best interests of the children and allowed each appeal under Article 8.
[3] The respondent appealed against these decisions to the Upper Tribunal and by decisions dated 5 September and promulgated on 11 September 2014 the Upper Tribunal held that the First‑tier Tribunal had erred in law, set aside the decisions and ordered that they should be remade by the Upper Tribunal. After a hearing on 17 February 2015, by decision dated 20 February and promulgated on 23 February 2015 the Upper Tribunal decided that each applicant’s appeal to the First‑tier Tribunal should be dismissed. By decision dated 30 March and promulgated on 20 April 2015 the Upper Tribunal refused permission to appeal to the Court of Session. This application for leave to appeal was lodged with this court in June 2015, a hearing on the application was fixed for 16 March 2016 and that hearing proceeded in part on that date but at that time it was then agreed that the application should be continued until decisions had been issued in two appeals then pending before the United Kingdom Supreme Court. This explains why it has taken so long for the application to be considered.
[4] It is important to remember that Rule of Court 41.57(2) provides that permission to appeal will not be granted unless (a) the proposed appeal would raise some important point of principle or practice, or (b) there is some other compelling reason for the court to hear the appeal. In the original Note of Argument (before revisal) for the applicants it is accepted that the second appeals test is a stringent one, but the reason for this is that the mischief to which it is directed is the repetition of a twice‑failed claim. Under reference to JD (Congo) v SSHD [2012] 1 WLR 3273 it was submitted that the test requires to be applied flexibly to take account of the particular facts of the case, and one of the important facts in the present case is that the applicants were successful before the First‑tier Tribunal. They have failed only once, before the Upper Tribunal.
[5] The present application is presented under the first limb of the test, namely that it raises an important point of principle or practice. That point is that there is a distinction which cannot be justified between the position of parents and spouses who are applying to remain in the United Kingdom to be with their family and that of parents and spouses who are applying to enter the United Kingdom to join their family. Applicants applying from within the UK to remain in the UK and who do not meet the financial requirements of Appendix FM of the Immigration Rules may still obtain leave if they meet the test in Ex.1 which provides an exception to Appendix FM. This exception is not available to applicants applying to enter the UK to join their family.
[6] Under reference to Quila v Secretary of State [2012] 1 AC 621 it was submitted that the distinction between a positive obligation to promote family life and the negative obligation to refrain from interference should not generate a different outcome. In assessing proportionality in an Article 8 claim the court should approach the exercise on the basis that in‑country applicants and out‑of‑country applicants should not have a different result.
[7] It is recognised in the Note of Argument for the applicants that paragraphs 66 and 67 of the decision of the Court of Appeal in England in SS (Congo) v SSHD [2015] INLR 683 were not supportive of the argument for the applicants, but it did not appear that the observations of the UK Supreme Court in Quila (particularly at paragraph 43) were placed before the Court of Appeal, and these would have made a difference.
[8] The point which is said to be an important point of principle or practice was argued before the Upper Tribunal and was rejected by it for the reasons given at pages 5 and 6 of its decision dated 20 February 2015. It relied on the decision of the Inner House in an application for leave to appeal in SM v SSHD [2014] CSIH 98 in which Lady Clark of Calton observed, refusing an application for leave to appeal, “no sound legal basis was put before me to explain why there was, or should be, some read across from rules relating to in‑country applications to rules relating to out‑of‑country applications. The assertion was not based on any legal principle and defies common sense.”
[9] The Upper Tribunal also referred to the decision in MM (Lebanon) v Home Secretary [2015] 1 WLR 1073, when it was before the Court of Appeal in England, at paragraphs 162 to 164 and at 164 stated:
“these appeals are not dealing with individual cases where the new MIR might produce a harsh result in relation to a child in the UK. The way that the ‘exceptional circumstances’ provision and Article 8 will work in those individual cases is not for decision now.”
As the Upper Tribunal went on to observe the present cases are not at the Rule formulation but at the individual decision stage.
[10] The reasoning of the Upper Tribunal is therefore consistent with the views expressed by the Court of Appeal in SS (Congo) and by the Inner House in SM. It is not inconsistent with the reasoning of the Court of Appeal in MM (Lebanon) because that case was concerned with the stage of rule formulation and not with the stage of individual decisions, whereas the present application is concerned with individual decisions and not rule formulation. In these circumstances whilst the points raised in the application are interesting, it is difficult to detect any error of law on the part of the Upper Tribunal - at least as the law was understood at that time.
[11] However, as indicated earlier, the hearing of this application was continued to await the handing down of decisions in the UK Supreme Court. It is only if the recent law casts doubt on the authorities referred to that this application can succeed. Two recent authorities were placed before the court from the United Kingdom Supreme Court, namely, MM (Lebanon) v SSHD [2017] 1 WLR 771 and Agyarko v SSHD [2017] 1 WLR 823. The case of Khan v SSHD [2016] SC 536 was also put before the court but did not feature in submissions to the court today.
[12] As already discussed MM (Lebanon) was concerned with a generic challenge to the legality of the rules themselves, something which the present applicants have taken care to avoid. However, in considering that issue and in allowing all the appeals to a limited extent and declaring at paragraph 109 that the rules fail unlawfully to give effect to the duty of the Secretary of State in respect of the welfare of children under section 55 of the 2009 Act the Supreme Court gave a detailed and wide ranging analysis of the MIR and its compatibility with Article 8.
[13] Agyarko was heard by the UK Supreme Court at the same time as MM (Lebanon). Although it was concerned with Appendix FM and paragraph Ex.1 it was an application for leave to remain, each applicant having formed a precarious relationship with a British citizen after expiry of limited leave to enter the United Kingdom, and no evidence was adduced as to insurmountable obstacles to family life continuing outside the United Kingdom.
[14] With some hesitation, I have reached the view that this application does raise an important point of principle or practice that has not been conclusively resolved in the recent case law to which I have referred. I cannot exclude the possibility that the Upper Tribunal would have reached a different conclusion if it had had the benefit of the views of the United Kingdom Supreme Court before it and that it may have erred in law as a result. The Upper Tribunal carried out an assessment of proportionality which involved a balancing exercise similar to that carried out by the Upper Tribunal in SS (Congo) which is quoted at paragraph 102 of MM (Lebanon) and which the UK Supreme Court accepted could not be criticised (with one minor exception immaterial for today’s purpose). However, that assessment involved considering a basket of factors including the policy of the Secretary of State as set out in the rules and instructions which the UK Supreme Court stated (at paragraph 109) failed unlawfully to give effect to the duty of the Secretary of State in respect of the welfare of children under section 55 of the 2009 Act.
[15] I shall accordingly grant permission to appeal.