APPEAL UNDER SECTIONS 13 AND 14 OF THE TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007 BY MUHAMMAD ARSLAN KHAN AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 13
XA49/15
Lord President
Lord Brodie
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Appeal
under sections 13 and 14 of the Tribunals, Courts and Enforcement Act 2007
by
MUHAMMAD ARSLAN KHAN
Appellant;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
Act: Lindsay QC, Winter; Drummond Miller LLP (for R H & Co Solicitors, Glasgow)
Alt: McIlvride QC; Office of the Advocate General
3 March 2016
Introduction
[1] This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 4 July 2014, which adhered to a decision of the First Tier Tribunal upholding the respondent’s decision to refuse the appellant’s application for leave to remain in the United Kingdom. The appeal concerns whether the FTT erred in its assessment of proportionality in terms of the Article 8 rights of the appellant and his wife. The context of that assessment was the appellant’s genuine marriage to a UK citizen whilst his immigration status was precarious. The case concerns the correct balancing of the individual’s right to respect for his and her private and family life with the state’s right to control immigration. There has been considerable judicial dicta on this subject in recent years; not all of it readily reconcilable. The court is concerned to ensure that the limits of its appellate jurisdiction, when considering the decisions of the immigration tribunals in this type of case, are properly understood. Ultimately, it is primarily for these specialist tribunals to determine whether, notwithstanding that the appellant’s precarious immigration status was known to the spouse when family life commenced, there are weighty factors which tip the balance away from a decision to refuse leave to remain being regarded as proportionate.
Immigration History
[2] The appellant is a national of Pakistan. He entered the United Kingdom on 30 January 2011 on a student visa which was valid until 27 November 2012. The appellant’s studies were ended with the closure of his college in about May 2011. The college’s licence was withdrawn by the Government. The appellant changed address without notifying the respondent. In June 2011 he moved to Inverness, where he worked part time in a takeaway, in breach of the terms of his visa. He commenced a relationship with a British national. She had expressed an interest in Islam. When the police visited the takeaway in October, the appellant said that he was sightseeing and would be going back to London at the end of the month. The couple entered into an Islamic marriage on 16 December 2011. They contracted a civil marriage on 27 January 2012. On 16 September 2012 the appellant applied for leave to remain on the basis of family life with his new wife. This was refused on 8 October 2013. The appellant appealed.
The Tribunals
[3] Before the FTT, the appellant explained that his wife could not live in Pakistan because of certain health issues. Her family was in the UK. She would not be able to adjust to Pakistani culture. She did not speak Urdu or Punjabi, although she had converted to Islam.
[4] The appellant’s wife gave evidence that she was employed and had been supporting the appellant since December 2011. The appellant did receive some funds from Pakistan. Her family, including her elderly parents, were all in the UK. She had previously been married, had lived in Malaysia for 2 years, but divorced in 2009. She would love to go to Pakistan, but was scared to do so because of her health problems and the cultural differences. She would find it hard to move and change her way of life.
[5] In its decision dated 6 March 2014, the FTT concluded that it had not been demonstrated that there were “insurmountable obstacles to family life ... continuing outwith the UK” in terms of the Immigration Rules (HC395); notably, Appendix FM: family members Rule EX1.(b). Whilst the appellant’s wife had stated that she preferred not to go to Pakistan, that did not constitute an insurmountable obstacle in terms of the rule. There was no evidence that she would not be able to access medical treatment in Pakistan. She was able to work full time, travel and had spent two years living in Malaysia.
[6] Under reference to R v Secretary of State for the Home Department [2004] 2 AC 368 and Huang v Secretary of State for the Home Department [2007] 2 AC 167, the FTT embarked upon a proportionality assessment in terms of Article 8. The FTT observed that the appellant had entered into family life with his wife in the knowledge that his immigration status was precarious. His wife had been aware of his status from the beginning of their relationship. The FTT concluded that the removal of the appellant was in accordance with the law. It had not been demonstrated that any interference would be disproportionate. The respondent had not made reference to the appellant’s option of applying for leave from Pakistan. It had not been shown that his removal to do so would be unreasonable or harsh.
[7] In its decision dated 4 July 2014, the UT decided that the FTT had correctly directed itself on the law and had given adequate reasons. Its determination contained no errors of law. The appeal was almost entirely a re-assertion of the submissions before the FTT. All of the factors relied upon by the appellant had been before the FTT and were reflected in its determination. The FTT had been entitled to make the determination which it had.
Submissions
Appellant
[8] There were three grounds of appeal. The first was underpinned by seven principles set out in the appellant’s written Note of Argument. Since several of these were either not disputed, or not in point in the context of this particular appeal, they are not all reproduced here. The principal submission, under reference to Mirza v Secretary of State for the Home Department 2015 SC 572 (at paras [19] – [20]), was that the FTT had failed to give proper consideration to the appellant’s spouse’s British nationality (and resultant EU citizenship). The proportionality of the interference with the appellant’s Article 8 right had to assume the separation of the couple. It had not been open to the FTT to conclude that any disproportionate interference with the couple’s Article 8 rights could be avoided by stating that the couple might move together to another country. Removal would involve indefinite separation. That was a disproportionate interference with the fundamental right to cohabit as a married couple.
[9] The common error of the FTT and the UT had been to assess proportionality on the basis that the couple would, or should, go to Pakistan. It should have been carried out on the assumption that the appellant would return to Pakistan alone. It was conceded that this may not be an approach of universal application. Each decision was fact sensitive. However, as a matter of principle, it was at least to be presumed that there would be a separation. S v Secretary of State for the Home Department 2015 SLT 651, which had been reclaimed, was in error in so far as it considered that Mirza (supra) and Khan v Secretary of State for the Home Department 2015 SC 583 were inconsistent with MS v Secretary of State for the Home Department [2013] CSIH 52. The dictum that it was not necessary to consider the partner’s UK citizenship in a non-Rules assessment of proportionality was incorrect. There was no test of exceptional circumstances (Khan (supra), at para [11]).
[10] The second ground of appeal was that the FTT had applied the wrong test of “insurmountable obstacles” (Rule, EX.1(b)) when assessing proportionality (R (Agyarko) v Secretary of State for the Home Department [2016] 1 WLR 390, Sales LJ at paras 29-30). A final ground was that the FTT had failed to assess and to consider whether the inability of the appellant’s wife to speak Urdu/Punjabi was an insurmountable obstacle or a relevant factor in the proportionality assessment.
Respondent
[11] The respondent argued that the FTT had considered the appellant’s wife’s British citizenship and had given adequate reasons for its decision. In so far as Mirza (supra) required a proportionality assessment to assume the separation of the couple, it proceeded upon a misunderstanding and misapplication of the law (MS (supra); Jeunesse v Netherlands (2015) 60 EHRR 17; R (Agyarko) (supra)). The UT had been well-founded in holding that the FTT had not treated “insurmountable obstacles” as a substantive test. The UT had been correct in holding that the FTT had made no material error of law in its assessment of the proportionality and that the FTT had had regard to all relevant factors in determining both whether there was any insurmountable obstacle and in carrying out its proportionality assessment.
Decision
[12] There was no dispute in this appeal that the appellant did not qualify for leave to remain in terms of the Immigration Rules, at least partly because there was no insurmountable obstacle to the appellant’s family life continuing with his wife in Pakistan (cf Rule EX1.(b)). The Rules are designed to cover the considerations that are relevant to an Article 8 claim in the normal case. In general, the application of the Rules will ensure that the proportionality assessment is properly carried out. However, this does not dispense with the obligation on the respondent to comply with the provisions of the Convention. If a family life claim is made, where the applicant does not qualify under the Rules, the respondent must consider that claim. It was not disputed that there is a family life within the meaning of Article 8. The issue before the FTT, in so far as relevant to this appeal, was whether the respondent ought to have been granted leave to remain outside the Rules on the basis that removal would be a disproportionate interference with the Article 8 rights of both the appellant and his wife.
[13] It is important not to over-complicate the exercise which the immigration tribunals require to carry out in this, relatively common, situation. Elaborate re-statements of multi-facetted tests are seldom necessary at first instance level. Assuming, as it normally should be with specialist tribunals regularly operating Convention jurisprudence, that the decision-maker is familiar with the concept of proportionality as explained in Bank Mellat v HM Treasury [2014] AC 700 (Lord Reed at para 74(4)), an appellate court should be slow to find fault in a tribunal decision which has taken into account all of the relevant circumstances and contains an apparently well-reasoned conclusion. The appellate court is restricted to adjudicating on whether there is an error of law in the tribunal decision (Tribunal, Courts and Enforcement Act 2007, s 13).
[14] In making judgments upon proportionality in the context of Article 8 claims in immigration cases, a tribunal will require to take into account a number of circumstances, albeit that it may not need to revisit or expressly repeat findings covered already in its decision under the Rules. The European Court of Human Rights has emphasised that, in assessing Article 8 claims in the immigration context, regard must be had to the fair balance that has to be struck between the competing interests of the individual on the one hand and the community as a whole on the other (Jeunesse v Netherlands (2015) EHRR 17, para 106). Article 8 cannot be seen as imposing on a state a general obligation to respect a married couple’s choice of their country of residence or to authorise family reunification in its territory (ibid at para 107).
[15] The extent of a state’s obligation will vary according to the particular circumstances of the persons involved and the general public interest. Factors to be taken into account in this context include: the extent to which family life would in fact be ruptured; the extent of the parties’ ties in the contracting State; whether there are obstacles (insurmountable or otherwise) in the way of the family living in the country of origin of the applicant for leave; and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (Butt v Norway (App no 47017/09), 4 December 2012, at para 78, following Nunez v Norway (App no 55597/09), 28 June 2011 at para 70 citing, inter alia, Da Silva v Netherlands (2007) 44 EHRR 34 at para 39).
[16] Most important in a case of this nature, the European Court has repeatedly said that, where the family life is created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of family life within the host state would from the outset be precarious, it is likely to be only in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (Jeunesse v Netherlands (supra) at para 108; Da Silva v Netherlands (supra) at para (39); Butt v Norway (supra) at para 78).
[17] A significant problem which the court faced in interpreting Mirza v Secretary of State for the Home Department (supra), was the sentence (in para [19]), under the heading “Discussion”, and following separate headings for the parties’ arguments, which reads “The assessment had to be conducted on the basis of separation of the couple”. This was replicated in the appellant’s written Note of Argument and, not surprisingly, founded upon heavily by him in oral submission. This was entirely understandable until, as was submitted by the respondent, it is realised that in this particular passage, the court appears to be reprising a submission. It is not part of the ratio decedendi. This finds support in the citation of Sanade and Others (British Children-Zambrano-Dereci) [2012] Imm AR 3 as supportive of the “petitioner’s position” rather than underpinning the reasoning of the court. In Sanade, the concession made by the respondent’s civil servant appears to relate to the engagement of Article 8, not to the assessment of proportionality.
[18] There is no reason requiring the decision-maker to proceed on the basis that a couple will inevitably be separated by removal of the applicant. In many cases, the evidence may point to the contrary. Relocation to the applicant’s country of origin outside the EU may involve minimal inconvenience. The tribunal has to decide, in a precarious case, whether it is proportionate to require the British, and hence EU, citizen to make a choice between separating or relocating pending determination of an application to enter as a dependent spouse. One factor in the tribunal’s assessment must be the practical possibility of relocating. The assessment will depend upon many factors. In some, perhaps most, cases the evidence on just what the British citizen will do may be unclear. Whether that is so or not, the tribunal need not proceed on an assumption that the couple will separate, or indeed that they will not do so. The ultimate proportionality assessment remains one of considering all the circumstances.
[19] Jeunesse v Netherlands (supra) was not cited in Khan v Secretary of State for the Home Department (supra), in which the Court rejected (at para [11]) the need for exceptional circumstances. On the face of Jeunesse, whilst not ignoring the need to treat many European Court cases as decisions applicable only to their particular facts, the contention that an appellant does not require to demonstrate exceptionality, where there is a known precarious status, is not a sound one; even if exceptionality is not to be elevated into a formal test. The reasoning of Sales LJ in R (Agyarko) v Secretary of State for the Home Department [2016] 1 WLR 390 is highly persuasive in its exploration (at paras 29 and 30) of the need for exceptional circumstances and the dimensions of the gap between these circumstances and insurmountable obstacles in precarious family life cases. By such circumstances may simply be meant the identification of weighty factors in favour of an application sufficient to overcome the normal result in this type of precarious status case (Re Izuazu (Article 8-New Rules Nigeria) [2013] Imm AR 453, Blake P at paras 69 and 78).
[20] Confronting the authorities of the host country with family life as a fait accompli does not, in itself, result in those authorities being under an obligation to allow the applicant to settle in that country (Jeunesse, supra, at para [103]. On the contrary, in general, persons in that situation have no entitlement to expect that a right of residence will be conferred upon them (Da Silva v Netherlands ((supra) at para 43).
[21] The FTT properly considered whether the appellant could satisfy the terms of the Immigration Rules and concluded, correctly, that he could not. The FTT then, as he was required to do, considered whether the claim might nevertheless succeed on the basis of Article 8. He concluded that the appellant had established family life with his wife in the UK in terms of Article 8, but that removal would not amount to a disproportionate interference with Article 8 rights. The FTT gave detailed reasons for the refusal to grant leave to remain.
[22] The marriage was entered into at a time when the appellant’s immigration status was precarious. It was of short duration, There were no children. The appellant’s wife was not financially dependent upon him. The FTT was not satisfied as to the claims regarding health concerns. The appellant’s wife had converted to Islam and had previously adapted to life in Malaysia. The appellant had family in his country of origin. The appellant might not require to be absent from the UK for long, as he could apply for entry from abroad as the spouse of a British citizen.
[23] In all these circumstances, the FTT was entitled to reach the conclusion that the appellant’s case did not amount to a disproportionate interference with the Article 8 rights of the appellant or his wife. There were no weighty or exceptional factors which could have justified granting leave outwith the Rules on the basis of Article 8 proportionality. There is no basis for holding that the FTT arrived at his conclusion by leaving out of consideration the wife’s nationality. The FTT did not regard “insurmountable obstacles” as a test in this equation. He noted the evidence and submission that the appellant’s wife did not speak Urdu or Punjabi. He recorded that he did have regard to these matters and mentions them repeatedly. Indeed, he noted the wife’s ability to adopt to another culture and her conversion to Islam as a way of life.
[24] For these reasons, the appeal is refused.