L.K. FOR JUDICIAL REVIEW
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 22
P374/14
OPINION OF LORD McEWAN
In the cause
LK
Petitioner;
for
Judicial Review
Respondent:
Petitioner: Lindsay, Winter; Drummond Miller LLP
Respondent: McIlvride; Office of the Advocate General
20 February 2015
[1] In this matter the petitioner seeks judicial review of the respondent’s decision communicated to him by letter dated 21 February 2013.
[2] A number of authorities were canvassed before me from the process bundles viz:
Abdulaziz etc v UK [1985] 7 EHRR 471
Amrollahi v Denmark 56811/00
Bonlty v Switzerland [2001] 33 EHRR 1179
AB (Jamaica) [2007] EWCA Civ 1302
VW (Uganda) [2009] EWCA Civ 5
Amrollahi v Denmark [2009] EWCA Civ 5
Mansoor [2011] EWHC 832
R (Aguilar Quila) v Secretary of State [2012] IAC 621
Sanade [2012] Imm AR 3
MF (Nigeria) [2012] UKUT 393
Izuazu [2013] Imm AR 3
MIK (Pakistan) [2013] CSOH 176
Nagre [2013] EWHC 720
MS [2013] CSIH 52
Halleemudeen [2014] EWCA Civ 558
Ganesabalan v Secretary of State [2014] EWHC 2712
Ahmed [2014] EWHC 300
MM (Lebanon) [2014] EWCA Civ 985
Some of these were fully canvassed, others only mentioned in passing.
[3] In opening for the petitioner Mr Lindsay drew my attention to the petition and answers as amended. The decision which was under review was contained in the letter of 21 February 2013 which had refused leave to the petitioner to remain as a partner. It was conceded that there could be no challenge to the assessment made under the rules. The problem arose because the last stage had not been undertaken. There was under article 8 a “good arguable case” and the failure properly to consider it had resulted in a disproportionate interference with private life. The other partner Mr M was an EU citizen and a UK resident and proportionality had to be assessed on the basis that he stayed in Scotland and not in the Philippines. British Nationality was the point and the error was not to carry out the second stage assessment. Further, the respondent had said that the threshold for article 8 was “insurmountable obstacles”. That, however, was just one test for proportionality and was not the only test. Due to the UK nationality of Mr M there was a good arguable case.
[4] Counsel then firstly took me to the authorities dealing with the need to engage with a two stage process. He began by referring to MS [2013] at various paragraphs between para 7 to para 30. There had been no immigration judge decision here and it was not a rule 3.5.3 case. As the rules could not cover every situation there was need for the second stage. Exceptionality was not the test and the reasoning in the decision letter should demonstrate that the second stage had been carried out. Since that had not been properly done there was need for judicial review. Continuing on the issue of proportionality, he went on to refer to Nagre [2013] paragraphs 11 to 13. The circumstances had to be balanced in the scales to find proportionality. He finished this chapter of his argument by looking at MM (Lebanon) [2014] paragraphs 128/130.
[5] Mr Lindsay then moved to look at the circumstances of this case and the applications for leave to remain. The petitioner had come to this country lawfully and had had leave to remain. Due to homophobic and racist abuse locally he could not study, left college and went to England. Forth Valley College reported this to the Home Office and in 2011 his leave to remain was curtailed. By then, however, he was in a civil partnership with I.M. The credibility of the relationship was never in doubt. M worked with Falkirk District Council. Adequate vouching of all of this had been produced in no. 6/1 and 6/2 of process.
[6] The argument continued by looking at the decision letter no. 6/3 of process. That was the document sought to be reduced. The letter referred to the rules, his leave and the cancellation of that. It then looked at article 8, Appendix FM and the relevance of “private life”. All of this was only a stage 1 exercise and there was no challenge nor could there be to the failure for three separate reasons (procedural: rule 284(1) and (4); partner ex1(b); and private life 276 ADE). However, it was then that the problems arose. Although the letter was written before Nagre there was no hint anywhere of an approach based upon proportionality. It was not something which could be inferred. There was no two stage approach and that was the proper policy. He referred me to MF (Nigeria) (2012) paragraphs 9 to 17. A good example of the proper approach was Ganesabalan (2014). Reference was made in particular to paragraphs 2 to 10, and 29 to 38. The case had some similarity on the facts and also there was no challenge to the conclusion on the rules. No reasons express or implied had been given.
[7] As examples of a sufficient letter Nagre could be looked at paragraphs 21 to 23 and 50 to 52. Ahmed (2014) paragraph 12 was an example of an irreducible minimum. Here, also, it could not be said that it was “inevitable” that it would have failed. (Ganesabalan paragraph 46.) In this case in 6/3 only the rules were mentioned. There was no mention of a second test. That was mandatory and the failure to do so left the decision open to challenge. It had to be done with reference to 6/2 of process even if the petitioner did not ask for it. It might be asked if 6/6 was a new decision, but in reality it just affirmed the first decision. In any case it applied the test of “insurmountable obstacles” which is fine under the rules but not for article 8 at the second stage. The Philippines is a devout Roman Catholic country and does not recognise same sex marriage. It was open to doubt if they would get residency rights there. All this showed there was a good arguable case which would not inevitably be refused; and while all of that might have been better highlighted the duty on the respondent was mandatory and she had to respond in a specific way to what 6/2 told her. No. 6/8 of process purported to refuse a decision on the basis of no new evidence; but the respondent had had all the evidence from the start. On the point of inevitability reference was here made to Halleemudeen (2014) paragraphs 4 and 59.
[8] Some examples of “obstacles” were then given. MIK (Pakistan) (2013) was looked at in some detail and there the facts were less favourable than the present case. The decision letter was close to no. 6/3 of process. Various passages were looked at between paragraphs 1 and 30. To apply “insurmountable obstacles” as a test is an error in law. VN (Uganda) (2009) was also considered paragraphs 17 to 19 and 24.
[9] Counsel then detailed the specific facts in this case which should have been considered, and I refer to these elsewhere in this opinion.
[10] Counsel then pointed out AB (Jamaica) which he described as a less meritorious case. There, as here, detailed and anxious consideration was absent. Here nothing had been said about M’s article 8 rights. He was 49 and had an inalienable right of abode in the UK. The court must apply “anxious scrutiny” to see that article 8 rights are considered. Contrast, said Mr Lindsay, Amrollahi where there had been a conviction yet expulsion was deemed disproportionate due to a wife. Here the petitioner was of good character. Mansoor showed that nationality was important (see para 42). Counsel then looked at in this context Izuazu; Sanade at paras 93/95 and MIK (para 31). Boultif he cited only as an example of the possible problems of living in another country. Quila was a good example of the need for a fact sensitive inquiry in order to make a proper article 8 decision. It should be noted from that case that Abdulaziz was probably now not to be followed. No 6/2 had laid out a good arguable case to remain as a partner.
[11] In his reply speech Mr Lindsay said that no. 6/3 had to expressly state whether there was a good arguable case or not. Had there been any thought process and was it expressed as having been carried out? It is a mandatory matter and not to do so amounts to an error in law. Accordingly 6/3 disclosed an error in law. If the error was material the petition succeeds and only if failure at the second stage was “inevitable” would that not be so (Ganesabalan and contrast Halleemudeen). Nothing can be properly described as inevitable at article 8 stage since it is always fact sensitive. This was a same sex relationship, not a marriage. It was said that no new facts were put to the respondent but all the new facts were in 6/8 which was already before her and known to her.
[12] For the respondent Mr McIlvride asked me to refuse the prayer of the petition, sustain his pleas and repel those of the petitioner. He accepted that no 6/3 of process was the decision. The petitioner had been refused under the relevant rules and no issue arose about that. The question was whether when the rules were applied that amounted to disproportionate interference under article 8. Also was the test insurmountable obstacles or was that merely a factor bearing on proportionality.
[13] It must be assumed that the provisions of the rules take fully into account article 8 rights in the great majority of cases. The minister is obliged to undertake the further exercise if an applicant has demonstrated a good arguable case that the application of the rules would lead to unjustifiably harsh consequences such that a refusal to remain was disproportionate. Here the petitioner failed to discharge the onus of showing such a good arguable case.
[14] The decision could only fall to be reduced if it was Wednesbury unreasonable; and that question has to be determined on the basis of the material actually before the minister when she made her decision. The nationality of the petitioner’s partner is not in itself a factor sufficient to give rise to a good arguable case. It was contended that “insuperable obstacles” had wrongly been applied as a test. However, it was necessary to recognise firstly that the rules expressly refer to “insuperable obstacles” and the rules here are not challenged; secondly in the rules existence or otherwise of “insurmountable obstacles” is only one of many factors to be taken into account, and thirdly and in any event no material had been put before the minister to suggest there were insurmountable obstacles to him and M continuing their relationship in the Philippines or to suggest they could not reasonably be expected to do so.
[15] Counsel then looked at a number of the cases before me. In MS the issue was whether a further submission amounted to a fresh claim. There was some similarity to the present case as the partner there was a UK citizen. The present case was not truly a case where the relationship was precarious as was the case in MS. Counsel took me to paragraphs 30 to 32 where it could be seen that everything was taken into account under the rules and there was no good arguable case for another article 8 assessment. The rules already take nationality into account and so there is no need for any second stage. The decision (2013) was before Nagre, where the rules themselves were challenged. Counsel looked at that case where there was an element of precariousness. The case of MM he said was not binding and para 129 was obiter. Y v Russia was looked at in some detail and there an issue arose as to whether the parties could reunite in China. The decision in Aquitar had not affected Y v Russia. Ahmed was looked at and distinguished and counsel said that the cases of Izuazu and Sanade were different. Issues of EU citizenship had arisen as was also seen in Lord Glennie’s case MIK.
[16] Mr McIlvride concluded by looking at some aspects of the petition. He said that lack of family ties, language problems in the Philippines had not been put to the minister. The country was admittedly devoutly Roman Catholic but it was never suggested that there would be any problem with same sex couples. The financial information was not very detailed. Whether Mr M could speak the language of the Philippines or had any connection with the country were all matters recognised by the rules; and even if the minister did not go on to say that she had thought about article 8 on its own and whether a good arguable case existed that was nothing to the point. There was no material before her to lead her to any such conclusion. If it was an error it was not a material one.
[17] Let me look now at certain aspects of the immigration history and the relationship of the parties. There was little dispute about any of this and it is in short compass. It has to be viewed against the assertion that it discloses a good arguable case and so to proceed would be a disproportionate interference with article 8 rights.
[18] Mr M was a UK national who had lived all his life in Britain. He was in employment, was the tenant of a house and could support the couple. He had no connections to the Philippines nor could he speak the language there.
[19] The petitioner had come here lawfully as a student and met M when he had leave to remain. They began a relationship and to cohabit when he had leave to remain. There was a long period of residence since 2006; and only a short period of unlawful residence before he tried to regularise things.
[20] I turn now to some of the cases.
Ganesabalan v Secretary of State [2014] EWHC 2712
[21] Was looked at in some detail. The case was based on private and family life linked to proportionality under article 8. There was a long period of lawful residence then a marriage to a British citizen. His claim to remain was refused under the rules and no challenge was made to that (the first stage test). It was said, however, that there had been no consideration of whether exceptional circumstances justified leave to remain outside the rules to satisfy article 8. The minister argued that as there was nothing exceptional no second stage arose, and any review would inevitably result in the same decision.
[22] The deputy judge, however, took the view that in cases like this a second stage must always be demonstrably considered giving reasons and judicial review will only fail if the decision would inevitably have been the same. The rules were not a complete code where article 8 was in issue. He then set out six key points (Roman numbers) between para 10 to 37. What had to be shown was that the minister had considered the exercise of her discretion or exceptional circumstances or proportionality. Would the refusal result in unjustifiably harsh consequence and amount to a refusal that was not proportionate. If there might be a good arguable case the exercise must be undertaken. On the issue of inevitability the judge pointed up the dangers of relying on other similar cases and that their value was as working examples which might help towards confident conclusions. On the facts before him the minister did not ask the legally relevant questions and give reasons. It could not be said that the decision would inevitably have been the same if the discretion had been addressed.
[23] Before me it was accepted that this case is a correct statement of the law.
Boultif v Switzerland [2001] 33 EHRR 1179
[24] This case concerned a man who had come from Algeria to Switzerland, married a Swiss citizen and later was sentenced to imprisonment for robbery. He had behaved in prison, served his sentence and had had employment. The authorities refused to renew his residence permit. The wife had never lived in Algeria and could not speak Arabic. The husband was deemed only a limited danger to public order. The court found the Government in breach of article 8.
Amrollahi v Denmark 56811/00
[25] Followed Boultif and was again a case involving a husband who was convicted of drugs offences. He had long been absent from his country of origin and had a Danish wife. Because of her expulsion was held to be disproportionate.
R (Aquilar Quila) v Secretary of State [2012] 1 AC 621
[26] Aquilar Quila was referred to for what was said in it about Abdulaziz (1985). The decision was not to follow the older case and that the area of engagement of article 8 should now be wider in this context. There were two appeals and both succeeded. In neither case was there a forced marriage. The proper approach was to make a sensible fact specific inquiry into whether the refusals were justified. The marriages were consensual and recent. Neither case could be described as a “reunion” case as happened in Abdulaziz.
Mansoor [2011] EWHC 832
[27] Involved a wife wishing to remain with her husband and family of seven who were lawfully in and citizens of the UK. The case was in fact settled but certain guidance was given on decision taking. There was a common household with many children of various ages. At para 28, Blake J pointed out that the proper test was whether it was reasonable to expect the family member to relocate. There had been six years of living together in the UK. At para 42 he said this “... a National enjoys the ... human right ... to live and remain in their own country ...”. This rule has now been extended to give rights to non EU parents to remain and look after their child born in the EU (Zambrano v Onem 2011 touched upon in argument before me.)
Y v Russia
[28] Was a complex case involving much more than article 8. The applicant was a university professor who had married a Russian national. The family life had been created at a time when his immigration status was precarious. Political issues in China were involved as also his ill health.
[29] The court confirmed that article 8 did not impose on the State a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunion on it territory.
[29] In refusing the application the court pointed out that the husband had spent most of his life and academic career in China and had family there, nor had he applied for a residence permit.
Halleemudeen [2014] EWCA Civ 558
[30] Was a case involving “inevitability”. The petitioner, his wife and children were all Sri Lankan nationals. He had been lawfully in the UK since 2001. He had employment. He made an application for indefinite leave to remain. In 2010 he was convicted of a road traffic offence. The minister refused his application under the relevant rules and concluded removal would not breach Article 8. A first-tier tribunal judge found removal would be disproportionate. The Upper Tribunal set that aside then remade it finding removal would not be disproportionate.
[31] The Court of Appeal found that both Tribunals were in error in spite of having oral evidence from the petitioner; evidence not available to the Court of Appeal. For this reason the court declined to decide itself the issue of proportionality. However, balancing all the facts, they could not conclude that when remitted, it would be inevitable that the decision would be the same. “Proportionality” was not a pure question of law or fact. It was a difficult and evaluative exercise.
Sanade [2012] Imm AR3
[32] Three conjoined cases, each concerning the father of a young child who was a British citizen. In each case the fathers had been sentenced to imprisonment for serious crime. The fathers being liable to deportation put in issue a breach to their right to a family and private life. In the lead case the mother and children could not be required to leave the EU. The husband was now no risk to others. The conduct had not been repeated and it was not criminal conduct at the higher end of the range of seriousness, and involved no violence, weapons or trafficking class A drugs. The interference with family life contemplated by his deportation was accordingly not necessary in the public interest. A difficult question was posed at para 93 concerning the avoidance of interference of family life because it was reasonable to expect the child and other parent to join the appellant in the country of origin. The answer to that (para 95) was in the negative, thus emphasising the importance of nationality.
Ahmed [2014] EWHC 300
[33] Was a case looking at the two part test for evaluation of article 8 considerations. The claimant was an overstayer but was the spouse of a woman with a settled right to remain,. There were no children. The minister found that their living in the UK was only a preference. There were no problems in relocating back to Pakistan. In her decision letter the minister expressly considered article 8. She did not consider that a return to Pakistan was disproportionate. Inadvertence about the rules gave no additional rights. There was a small element of precariousness which the minister recognised. The decision of the minister was upheld. What was important to note was that the assessment was multifaceted. The degree of difficulty rather than surmountability should be the focus of assessment but as a factor rather than a test.
VW Uganda [2009] EWCA Civ 5
[34] These were two cases involving article 8. The first was a case of a right to remain in the UK and the second a right to reunite here. Both husbands had indefinite leave to remain. A test of insurmountable obstacles had been applied. In allowing one appeal and refusing the other the Court of Appeal said that the test was not insuperable obstacles but whether it was reasonable to expect the family to leave with the claimant. The inquiry into proportionality was not a search for an insurmountable obstacle and did not end with its elimination. Assessment of proportionality under article 8 was a balanced judgement of what could reasonably be expected in the light of all the material facts. If removal was held to be disproportionate it was necessary to show more than mere hardship, mere difficulty or mere obstacle; there was a seriousness test which required obstacles or difficulties to go beyond matters of choice or inconvenience. In any one case the question would be whether the hardship consequent on removal would go far enough beyond that baseline to make removal a disproportionate use of lawful immigration controls, which in turn would depend inter alia on the severity of the interference with private and family life.
[35] In the first case removal of the whole family to Uganda would seriously affect the partner and in particular the daughter who was a British decision. The decision to remove her was flawed. The second (reunion)case was refused.
[36] Cases did not usually reveal stark choices hence a need for a careful and informed evaluation of the facts. There is no “bright line” rule.
AB (Jamaica) [2007] EWCA Civ 1302
[37] Is another example of a failure to consider under article 8 the effect of removal on a marriage to a British citizen. The husband had lived all his life in the UK and there had been no detailed and anxious consideration about how he would cope if he had to follow her to Jamaica to keep his marriage intact. (Para 20).
MIK (Pakistan) 2013 CSOH 176
[38] This case is another example of a marriage by an immigration offender to a UK national and at a time when it could be described as precarious. The decision was flawed in that it had used insurmountable obstacles as the test and made no assessment of proportionality. At para 31 Lord Glennie also attached importance to being EU Nationals living in the UK. That was a weighty factor when the break up of a family unit was in issue.
MF (Nigeria) [2012] UKUT 393
[39] Is a decision of the Upper Tribunal. The facts fell between the old rules and the introduction of the new in 2012. The claimant had earlier been convicted and imprisoned. He had, however, married a British citizen and had a stepdaughter. He claimed the new rules did not apply to him or if they did article 8 had to be considered. The decision emphasised the need for a two stage approach in article 8 cases as the rules did not reflect all the current jurisprudence in spite of a statement that the rules would fully reflect the factors weighing for or against an article 8 claim.
[40] I agree with counsel that this has become a wish more than a statement of law. That may be no criticism of the drafters of the rules since it is inevitable that not all cases can ever be covered. On the facts, in spite of being a foreign criminal, with a poor immigration history and a precarious marriage; because of his close relationship with his stepdaughter it was found not proportionate to deport him.
MM (Lebanon) [2014- EWCA Civ 985
[41] Was three cases in which two citizens with a right of abode in the UK and a third who was a refugee with no such right; were married to spouses with no right of abode, were not EU citizens, who lived outside the UK and wished to reunite and live with their spouses in the UK. The case turned on minimum financial requirements in new rules on sponsor UK partners third party funding and whether these contravened article 8. The rules were statements of policy liable to frequent changes. In the case the new rules were challenged as valid and no decision had been made in any case. The judge (Blake J) heard evidence about Home Office policy and the financial burdens on the public purse, and comparisons with other countries. There is a very lengthy opinion from the Court of Appeal supporting the rules and declining to get involved in what is a policy decision. Comments were made about Nagre which are not strictly binding on me and which are obiter. They suggest that there should be no intermediary test in article 8 cases (“good arguable case”) (para 29). Let me now briefly turn to Nagre.
Nagre [2013] EWHC 720
[42] Is an important decision by Sales J. An overstayer began living with a woman in the UK. The main thrust of the case was a challenge to the rules themselves. They were upheld and ultimately the case itself failed on the facts since it was covered previously by the Rules. The judge set out the proper tests in showing the general approach to question of proportionality. This case was followed in MS in the Inner House and I finally look briefly at that.
Izuazu [2013] Imm AR 3
[43] Was a case where the appellant had a poor immigration history, a precarious marriage and had been convicted of crime and sent to prison. It was found that there was a strong public interest in her removal and a weak right to respect for family life. It was reasonable to expect the husband to follow her to Nigeria and make that choice.
[44] There was a careful analysis of many cases and the differing formulae and criteria applied in article 8 considerations. Many factors had to be considered and balanced. The degree of difficulty faced by a couple in relocating outwith the UK is a focus of judicial assessment in order to reach a decision on proportionality in a particular case.
MS [2013] CSIH 52
[45] Concerned an immigration offender who had lived and worked undetected for some ten years. Eventually he applied for leave to remain and around the same time formed a relationship with a woman. She had a daughter. The case failed and the opinion of the Lord Ordinary was upheld. The case is not important on its facts but it is binding for what was said about the proper test to apply when cases fall outwith the rules and article 8 has to be considered.
[46] I must now pass from the cases to deal with the decision in the present case. The documents complained of are no. 6/3 of process with the three relevant pages attached to Border Agency letter of 21 February 2013.
[47] The decision notice begins by acknowledging that leave to remain is sought as the civil partner of M. It goes on to refuse the application under two separate paragraphs of rule 284 both of which relate to dates. The writer then goes on to consider article 8 in terms of the appendix (FM) of the rules under three separate areas of these and concludes again that the claim fails under the rules. In the course of the decision the writer states:
“... furthermore you have not demonstrated any insurmountable obstacles that would prevent you from continuing your family life outside the UK ...”.
What the letter does not do is to look independently at article 8. It is not necessary for me to set out or to analyse the various rules and exceptions since it was conceded at the outset that there was not nor could be any challenge under the rules. The narrow issue in this case is whether the respondent was obliged to go further and to demonstrate clearly that she had considered article 8 outwith the terms of the rules and as a discrete other question. I am clear in this opinion that in law it is necessary, demonstrably, to do so and that in this case it was not done. It was necessary to consider in particular, the nature of the relationship between the petitioner and his partner (Mr M), the effect of the removal of the petitioner to the Philippines on their family life and to ask the correct question of whether the whole facts showed a good arguable case of disproportionality if leave to remain is not granted.
[48] In my opinion no. 6/3 regrettably does not do any of those necessary things and may have confused matters by relying on a test of “insurmountable obstacles”. There is ample authority for the need to conduct this second stage, and in the cases, where it is properly done the minister’s discretion is not often interfered with. (Izuazu is a good example). I am bound by the decision in MS which I have already referred to. The Inner House followed Nagre and Izuazu and I refer to what Lord Drummond Young said between paragraphs 23 and 30. (I should add that I am aware that the test in Nagre may be open to debate in England; MM (Lebanon), but that is not a concern here).
[49] Nor is it necessary for me to try to discover a minimum standard of separate article 8 analysis. It is enough that it has not been done and this discloses an error in law. A final question arises as to whether it amounts to a material error and whether on reconsideration the result would inevitably be the same. In my view counsel was correct to say that nothing was inevitable when article 8 is involved. All the facts were before the respondent (see no. 6/8) and it is clear that some have not been properly considered eg the effect on M and the suggestion that he, as a UK resident of many years, should relocate to a country he knows not. The cases shown the care that is now necessary to take where the interests of third party family members are affected eg Mansoor where there were no adverse factors and even Boultif, Amrollahi, Sanade and MR (Nigeria) where apparently undeserving applicants were not refused leave to remain . I refer again to Halleemundeen. Proportionality is a difficult and evaluation exercise. It is not one for me to undertake or suggest what should be the result. I cannot say that in this case the facts when properly considered would inevitably lead to the same result when remitted back.
[50] Accordingly, I will grant the prayer of petition by sustaining the petitioner’s first plea in law and repelling the respondent’s plea. Expenses will be reserved.