PETITION OF VISHAL SURI (AP) AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 48
P808/14
Lady Paton
Lord Brodie
Lord Glennie
OPINION OF THE COURT
delivered by LORD GLENNIE
in the petition
of
VISHAL SURI (AP)
Petitioner and Reclaimer
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defender and Respondent
for
Judicial review of a decision of the Secretary of State for the Home Department to certify the petitioner’s human rights claim under section 94(2) of the Nationality, Immigration and Asylum Act 2002
Petitioner and Reclaimer: Lindsay QC, Winter; Drummond Miller LLP
Defender and Respondent: Komorowski; Office of the Advocate General
26 July 2017
Introduction
[1] The petitioner is a 45 year old Indian national. On 13 May 2010 he was encountered by Glasgow Immigration Enforcement Unit at a restaurant in Stirling. He gave a false name. When questioned again, however, he gave his true identity. He disclosed that he had arrived in the United Kingdom in about August 2009 having been granted a six months visitor visa. There is some suggestion that he first entered the United Kingdom in the middle of 2008, spent three months here and then returned to India before re‑entering the United Kingdom in about August 2009, but nothing turns on this difference. He was arrested on suspicion of being an “overstayer”. He was granted temporary release but failed to report to the immigration authorities. On 29 March 2014 he was detained by the police and transferred to Dungavel detention centre. On 3 April 2014 removal directions were issued with a view to removing him to India on 22 April 2014.
[2] Following his detention the petitioner instructed solicitors to lodge representations on his behalf based on Article 8 ECHR (right to respect for private and family life). The nub of those representations was that he was currently engaged to a UK national (JT). They had been together since May 2012 and had lived together since June 2012. Their relationship was genuine and subsisting and they intended to marry in the near future. Various documents were lodged in support of these representations. In addition the point was made that JT, the petitioner’s fiancée, was British, had lived all her life in the United Kingdom, had all her family in the United Kingdom, could not speak Hindi or Punjabi and had no ties with India. It was asserted that removal of the petitioner would not be proportionate and would breach his Article 8 rights.
[3] The Secretary of State rejected the petitioner’s Article 8 claim. In her decision letter dated 21 April 2014 she stated (1) that it had not been demonstrated that the petitioner was in a genuine and subsisting relationship with JT and (2), even if he was in such a relationship, his removal from the United Kingdom would not breach his Article 8 rights.
[4] In addition, in that same letter, the Secretary of State certified that the petitioner’s human rights claim was “clearly unfounded” in terms of section 94(2) of the Nationality, Immigration and Asylum Act 2002. The effect of this, when read with other provisions of the Act, is that the petitioner is not entitled to bring an appeal against the decision refusing his human rights claim from within the United Kingdom.
[5] There is no right of appeal against such certification. It may, however, be challenged by judicial review. That is what has happened in this case. The petitioner contends that in certifying his human rights claim as “clearly unfounded” the Secretary of State has erred in law.
[6] The Lord Ordinary refused the petition. In a carefully reasoned decision he held: (1) that the role of the court was one of review (paragraphs [6]-[42]); (2) that the Secretary of State had not given any separate consideration to the petitioner’s human rights claim outwith the Immigration Rules (paragraphs [43]-[108]; (3) that she was not required to do so since there were no factors which had not already been taken into account in her assessment under the Immigration Rules (paragraphs [107]-[108]); (4) that what was lacking in her decision letter was a clear and explicit statement that she had reached the conclusion that there was no need to go outwith the Immigration Rules given the factors relied upon in the petitioner’s claim (paragraph [109]); (5) that the omission of such a statement amounted to an error of law (paragraph [109]); but (6) that error of law was not material because “it would have made no difference to the decision if the decision letter had explicitly stated that the decision‑maker had reached this decision” (paragraph [109]). In substance the Lord Ordinary was satisfied that the Secretary of State had properly carried out her task and it would have been no more than form for such words to have been added to her decision letter.
[7] The petitioner appeals against this decision.
The Ambit of this Appeal
[8] Before us it was accepted on behalf of the Secretary of State that she had not given any consideration to the petitioner’s human rights claim outwith the Immigration Rules. She accepted the Lord Ordinary’s finding anent error of law on her part. In those circumstances it was a matter of agreement between parties that it was unnecessary for this court to hear argument about the role of the court in considering the lawfulness of the Secretary of State’s decision to certify the petitioner’s human rights claim under section 94(2). This issue was dealt with by the Lord Ordinary at paragraphs [6]-[42] of his opinion. That question did not now arise. We consider that that agreed approach is correct. Accordingly we say nothing about this issue save to record that it has not been argued before us and nothing in this opinion should be taken to indicate either approval or disapproval of the Lord Ordinary’s decision on this point.
[9] Standing the acceptance on behalf of the Secretary of State that the decision letter contained an error of law, the issue before us was whether that error was material. However the arguments presented went rather further than the materiality issue considered by the Lord Ordinary. His assessment of materiality was confined to the question whether it would have made any difference if the Secretary of State had explicitly stated in the decision letter that, having regard to all the factors relied upon by the petitioner in support of his claim, she had reached the conclusion that there was no need for her to consider his claim outwith the Immigration Rules. Not surprisingly the Lord Ordinary came to the view that it would have made no difference if this had been explicitly stated in the decision letter.
[10] The materiality argument presented to this court was somewhat wider. It focused not on the point about whether the failure to include some appropriate wording in the decision letter was material. Obviously that failure would not be a material error of law if the Secretary of State had in fact properly carried out the task assigned to her of considering the petitioner’s human rights claim outwith the four corners of the Immigration Rules and had simply failed to mention it. The Lord Ordinary considered that the Secretary of State had properly carried out the task assigned to her, and it was for that reason that her failure to make such a statement in the decision letter was a matter of form rather than substance. It was this broader aspect of the Lord Ordinary’s decision ‑ that the Secretary of State had properly carried out the task assigned to her ‑ which was challenged by the petitioner. The appeal therefore focused on whether the Lord Ordinary was correct in his decision (set out in paragraphs [107]-[108]) that there were no factors not already taken into account by the Secretary of State in her consideration of the claim under the Immigration Rules; that there was nothing “non-standard or particular” about any of the factors relied on by the petitioner; that there was nothing outwith the Rules for her to consider; and that, accordingly, she did not require to carry out a separate and distinct consideration of the petitioner’s Article 8 claim outwith the Rules.
[11] For completeness we should add that no argument was presented to us to the effect that the system of certification under section 94(2) of the 2002 Act was itself not ECHR compliant, by application of the reasoning of the Supreme Court in the recent decision of R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42. No such argument had been advanced before the Lord Ordinary and any such argument was, as Mr Lindsay QC put it, “for another day”.
The Immigration Rules
[12] The Immigration Rules, in the form in which they were introduced in July 2012, were intended to reform the approach taken towards Article 8 claims in immigration cases. The scope of the new Rules, and the intent behind their introduction, is comprehensively explained in the speech of Lord Reed in R (Agyarko) v Secretary of State for the Home Department [2017] 1 WLR 823 at paragraphs 5-19. There is no need for this court to rehearse that explanation. As Lord Reed explains at paragraph 10, the new Rules were intended to reflect fully the factors which could weigh for and against an Article 8 claim, such that a failure to meet the requirements of the Rules would normally mean failure to establish such a claim. It should therefore only be in genuinely exceptional circumstances that refusing the applicant leave to remain in the UK in terms of the Rules, and removing him from the UK, would breach Article 8.
[13] So far as concerns the instant appeal, the relevant provision in the Rules is to be found in Appendix FM (FM standing for Family Members) which contains a general statement setting out the requirements to be met by those seeking to enter or remain in the United Kingdom on the basis of their family life with a person who is a British citizen, is settled in the United Kingdom or is in the United Kingdom with limited leave as a refugee or person granted humanitarian protection. The relevant provisions are set out by Lord Reed in paragraphs 14-16 of his judgment. If a person is in the United Kingdom in breach of Immigration Rules, he will not meet those requirements unless paragraph EX.1 applies. So far as applicable to this case, the relevant part of EX.1 is to be found in paragraph (b) which applies to persons who apply for leave to remain as partners and, so far as material, is in the following terms:
“(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 … and there are insurmountable obstacles to family life with that partner continuing outside the UK.”
Lord Reed notes at paragraph 16 that in the Home Office guidance introduced with effect from 28 July 2014 (after the decision in this case) it was explained that for the purposes of EX.1 the expression “insurmountable obstacles” referred to 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.”
As Lord Reed notes at paragraphs 42 ‑ 45, that interpretation of “insurmountable obstacles” is consistent with the Strasbourg case law, which emphasises that the expression is to be understood in a practical and realistic sense rather than a purely literal one. In the decision letter in this case the Secretary of State stated that, even if the petitioner had a genuine and subsisting relationship with his current partner, he had not demonstrated that there were insurmountable obstacles to family life continuing outside the United Kingdom.
[14] As explained by Lord Reed at paragraphs 17-19, instructions issued by the Immigration Directorate to officials for the purpose of assisting them in making decisions on such claims emphasise that, although refusal of an application will normally be appropriate where the applicant does not meet the requirements of the Rules, leave can be granted outwith the Rules where exceptional circumstances apply. The Instructions make it clear that:
“’Exceptional’ does not mean ‘unusual’ or ‘unique’. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin. Instead, ‘exceptional’ means circumstances in which refusal would result in a unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. That is likely to be the case only very rarely.”
We come back to consider this in a little more detail below.
Submissions
[15] It was a matter of agreement before us, as it had been before the Lord Ordinary, that for the purpose of considering the question of certification of the petitioner’s human rights claim as “clearly unfounded” under section 94(2) of the 2002 Act, the court should proceed on the basis that the petitioner might be able to establish that he had a genuine and subsisting relationship with JT. It was impossible to say at this stage that the petitioner would be unable to prove that to be the case, and therefore it had to be assumed for the purposes of certification that he would or might well be able to do so. We approach the matter on this basis.
[16] The issue before the court was whether, having decided that the petitioner had not demonstrated that there were “insurmountable obstacles” to family life with his partner continuing outside the United Kingdom in terms of EX.1 of the Immigration Rules, the Secretary of State ought to have gone on to consider his Article 8 claim outwith the Rules, and whether the failure to give that claim any such consideration was material in the sense that, had she done so, it might have made a difference to the outcome. In this connection we were referred in the Notes of Argument to a number of authorities, three of which, namely MS (India) v Secretary of State for the Home Department [2013] CSIH 52, Khan v Secretary of State for the Home Department 2016 SC 536 and Agyarko (supra), were referred to in oral argument.
[17] For the petitioner, Mr Lindsay QC emphasised the distinction between the test of “insurmountable obstacles” set out in EX.1 and the wider proportionality approach applicable to an Article 8 assessment outwith the Immigration Rules. The fact that matters relied upon by the petitioner may have been considered in the context of an assessment of “insurmountable circumstances” under the Rules did not mean that they should not be considered again in the context of answering a different question under Article 8 outwith the Rules. Nor was there any test of exceptionality. Cases were not to be approached by searching for a unique or unusual feature and in its absence rejecting the application without further examination: Agyarko at paragraph 56. The critical issue in considering a “precarious” family life claim ‑ ie a claim based on a family life created at a time when the persons involved were aware that the immigration status of one or both of them was such that the continuation of that family life within the host state would from the outset be “precarious” ‑ was whether, giving due weight to the strength of the public interest in the removal of unlawful immigrants, the Article 8 claim was sufficiently strong to outweigh it. In most cases a very strong or compelling claim was required to outweigh the public interest in immigration control, but ultimately the test was one of proportionality: Agyarko at paragraphs 57-60. The same approach was to be found in Khan.
[18] Mr Lindsay submitted that the Lord Ordinary was wrong in paragraph [107] to ask whether any of the factors advanced by the petitioner had not already been taken into account in assessing his case under EX.1 of the Immigration Rules and whether there was anything “non-standard or particular” about those factors which required the Secretary of State to go outwith the Rules in order properly to consider the claim. That was the wrong question. Had an Article 8 proportionality assessment been carried out outwith the Rules, the following considerations ought to have been taken into account: (i) the petitioner was engaged to a British citizen; (ii) their relationship was genuine and subsisting; (iii) they had been in a relationship since May 2012; (iv) they had cohabited since June 2012; (v) they intended to marry in the near future; (vi) the petitioner’s fiancée's family were all in the United Kingdom; (vii) the petitioner’s fiancée was on medication, had health problems and alcohol dependency and depended upon support given to her by the petitioner; (viii) she would not get her medication on the national health service in India; (ix) she was unable to speak Hindi or Punjabi; (x) she had no ties with India; (xi) it would not be realistic to expect her to travel to India with the petitioner if he were required to leave the United Kingdom, their family life together would be broken and she would lose the support presently given by him; and (xii) there were no public order concerns relating to the petitioner’s presence within the United Kingdom. These were all factors which would have to be taken into account in any proportionality assessment outwith the Rules. Although it could be argued that the petitioner’s case was not bound to succeed, it was certainly not “clearly unfounded”.
[19] Mr Komorowski, who appeared for the Secretary of State, accepted that the proper course in this case (albeit not in every case) was to consider the question of certification under section 94(2) on the basis that the petitioner and JT had a genuine and subsisting relationship. He also accepted that the Secretary of State had erred in law in failing to address the petitioner’s Article 8 claim outwith the Immigration Rules. However, he submitted that the Lord Ordinary had been quite correct to conclude that everything relevant had in fact already been taken into account in the assessment made under the Rules and that there was nothing unusual in any other matters put forward by the petitioner so as to require the Secretary of State to carry out a separate and distinct consideration of the petitioner’s Article 8 claim outwith the Rules. In short, as the Lord Ordinary concluded at the end of paragraph [107] “there was nothing outwith the rules to consider”. Although he accepted that the Secretary of State had erred in law in failing to state explicitly in her decision letter that she had reached the conclusion that there was no need to give separate consideration to the claim outwith the Immigration Rules, that was not a material error of law. If there was nothing for her to consider outwith the Rules, her failure to make that clear in the decision letter can have made no difference to the outcome.
[20] Mr Komorowski submitted, under reference to MS (India) at paragraphs 27-34, that exceptionality remained the test, provided one understood “exceptional circumstances” to refer, as made clear in the Instructions issued by the Secretary of State, to the very rare circumstances in which refusal would result in “unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate.” He submitted that the Lord Ordinary had been correct, in paragraph [82], to understand MS (India) as saying that the Rules set out the norm and that therefore the decision maker required to consider whether there was something which took the claim “outwith the norm”. The decision maker had to ask whether there was any factor which had not been fully taken into account in the consideration of the claim under the Rules, and whether there were features of the claim which could be considered to be not very common or not very typical, and therefore not fully taken account of in the Rules. When the Lord Ordinary in paragraph [107] referred to there being nothing “non-standard or particular” about the factors relied upon by the petitioner in this case, and characterised many of those factors as “very typical features of removal”, he was following the guidance in MS (India).
[21] Mr Komorowski submitted that the decision of the First Division in Khan was consistent with this approach. In particular, the court made it clear in paragraph [19] that “exceptionality” had to be demonstrated, if only in the sense that in a precarious status case the applicant required to identify weighty factors in favour of his application sufficient to overcome the normal result. Nothing in Agyarko departed from that approach. Although Khan and Agyarko were decided after the Lord Ordinary issued his opinion in the present case, his decision was consistent with those cases. It had not been shown that the Lord Ordinary had erred in law. None of the factors relied upon by Mr Lindsay in support of his argument that on the facts the petitioner’s Article 8 claim ought to have been given proper consideration outwith the Immigration Rules and that it could not be said to be “clearly unfounded” in terms of section 94(2) of the 2002 Act were sufficiently compelling so as to outweigh the public interest in immigration control and lead to a result in this case different from the normal result in this type of precarious status case. The Secretary of State had been entitled to certify the claim as “clearly unfounded”.
Discussion
[22] The case law in this area is constantly developing. We have some sympathy with the Lord Ordinary in his efforts to extract the relevant principles from the decided cases. As he records in his opinion at paragraph [53], within a short time of parties’ submissions to him focusing on the case law up to and including MS (India), three further opinions of the Inner House were issued, on which he received further written submissions. Since then there has been the decision of the First Division in Khan and the judgment of the Supreme Court in Agyarko. The submissions to this court have concentrated on those two recent decisions as well as on MS (India).
[23] It is clear from the decision in MS (India) at paragraph [30] that the test of exceptionality should not be used in cases such as this. We do not understand Khan to suggest otherwise. Although at paragraph [19] in Khan the Lord President (Carloway), giving the opinion of the court, asserts that the contention that it is not necessary to demonstrate exceptionality is not a sound one, he makes it clear that exceptionality is not to be elevated into a formal test; all that is meant is that the applicant will have to identify weighty factors in his favour sufficient to overcome the normal result in a precarious family life case. Cases in which the applicant will be able to do this are, we suspect, likely to be rare and, in that sense, exceptional, but this does not mean that exceptionality becomes the test: c.f. Huang v Secretary of State for the Home Department [2007] 2 AC 167 at paragraph 20. It may be that references to exceptionality, when this is all that is meant by that word, are apt to over‑complicate: c.f. Khan at paragraph [13]. We would suggest that use of that word in describing the test is better avoided in the future.
[24] The correct approach has now, for the present at least, been definitively explained by the Supreme Court in Agyarko, particularly at paragraphs 56-60. At paragraph 56 Lord Reed cites with approval the remarks of Lord Dyson MR giving the judgment of the Court of Appeal in MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544 at paragraph 42, to the effect that the test to be applied is not one of exceptionality; 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.”
Lord Reed goes on to say this:
“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, as Lord Dyson MR made clear, the test is one of proportionality.”
At paragraph 57, Lord Reed says this:
“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.”
Finally we should quote from the beginning of paragraph 60 of his judgment where Lord Reed says this:
“It remains 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 already explained, 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’ …”
It is clear from these passages from Lord Reed’s judgment in Agyarko that exceptionality is not the test in cases such as this. The question in each case will be whether the applicant has put forward a strong or compelling claim sufficient to outweigh the public interest in immigration control. There is no requirement that the factors upon which he relies must be unique or unusual in any way.
[25] One matter not discussed in Agyarko is whether, in approaching the Article 8 assessment outwith the Immigration Rules, the decision maker is limited to factors which have not already been taken into account in the assessment under the Rules. As a matter of principle there is no reason why he should be so limited. Indeed it would, in our view, be an error of law for the decision maker to exclude such matters from a consideration of the applicant’s human rights claim at this stage. Such consideration as has been given to the various matters relied upon by the applicant in the context of the assessment under the Rules has focused, in a case such as this, on whether there are insurmountable obstacles to family life with the partner continuing outside the United Kingdom. That is not the same question that arises on a consideration of the Article 8 claim outwith the Rules, though obviously the issues will overlap. Support for that approach is to be found in the decision in MS (India) at paragraph [30].
[26] In light of all this it is clear that the Lord Ordinary has fallen into error in his assessment of the factors relied upon by the petitioner in support of his Article 8 claim. He reaches the conclusion that there was nothing for the Secretary of State to consider on an assessment of the petitioner’s claim outwith the Rules on the basis (a) that all the factors relied upon had already been taken into account in the assessment under the Rules and (b) that there was nothing non-standard or particular about the factors relied upon requiring the decision maker to go outwith the Rules in order properly to consider the claim. He dismisses various difficulties likely to be faced by the petitioner’s fiancée if the petitioner were to be removed as “very typical features of removal” and matters “taken into account in EX.1”. As is made clear in Agyarko it is wrong to approach cases such as this by searching for “a unique or unusual feature”; and as is made clear in MS (India), it is wrong to exclude from the consideration of the applicant’s human rights claim outwith the Rules material which has been considered in the context of the differently focused assessment under the Rules.
[27] We are satisfied, therefore, that the Lord Ordinary has erred in law in his consideration of whether the Secretary of State ought to have carried out an assessment of the petitioner’s human rights claim outwith the Immigration Rules. In those circumstances it falls to this court to consider the matter afresh, albeit only in the context of a challenge to the Secretary of State’s certification under section 94(2) of the 2002 Act that the petitioner’s human rights claim is “clearly unfounded”. We emphasise that we are not concerned here with the question whether any appeal against the refusal of the petitioner’s human rights claim will succeed ‑ we are simply concerned with the question whether it is clearly unfounded.
[28] The test whether a claim is “clearly unfounded” has been considered in a number of decided cases. We do not propose to add to that jurisprudence. The words are clear and mean what they say. What has to be shown in this case is that, in a proportionality assessment carried out in this case, the petitioner will have no prospect of persuading a decision maker, a tribunal or a court that his claim to respect for family life is sufficiently strong to outweigh the public interest in his removal in accordance with the established rules of immigration control.
[29] The factors relied upon by the petitioner in this case are summarised in paragraph [18] above. On behalf of the Secretary of State it is emphasised, naturally, that the petitioner is an overstayer who has once absconded, and that his relationship with his fiancée is and has always been precarious, to the knowledge of both of them, in that it was established when his presence in the United Kingdom was unlawful and he was liable to be removed. These are no doubt powerful arguments, but it is not self‑evident that they necessarily outweigh the factors relied upon by the petitioner. What has to be assessed, assuming the facts to be as asserted by the petitioner in his application, is the proportionality of removing the petitioner in circumstances where his fiancée would or might be unable to go to India with him. That assessment has to be made in the first place by or on behalf of the Secretary of State. There will then be rights of appeal against any decision. A proportionality assessment of that sort is highly fact sensitive and we cannot say with any confidence that the petitioner’s claim is bound to fail.
[30] It follows that we consider that the Lord Ordinary was wrong to hold that the Secretary of State’s error of law was not material. It also follows that the Secretary of State was wrong to certify the petitioner’s human rights claim as clearly unfounded in terms of section 94(2) of the 2002 Act.
Decision
[31] For the above reasons we consider that the petitioner’s reclaiming motion must succeed. We shall recall the Lord Ordinary’s interlocutor of 1 September 2015 in its entirety; repel the respondent’s plea-in-law; sustain the petitioner’s pleas‑in‑law; and reduce the respondent’s decision contained in the letter of 21 April 2014 to certify the petitioner’s human rights claim as clearly unfounded in terms of section 94(2) of the Nationality, Immigration and Asylum Act 2002.
[32] We shall reserve all questions of expenses.