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AZIZ HUSSINI (AP) AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT


Submitted: 16 May 2017

Web Blue CoS

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 80

 

P1042/16

OPINION OF LORD ARMSTRONG

In the cause

AZIZ HUSSINI (AP)

Petitioner

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner:  Winter;  Drummond Miller LLP

Respondent:  Massaro;  Office of the Advocate General

16 May 2017

Introduction
[1]        The petitioner is a national of Afghanistan.  He was born on 7 May 1993.  The respondent is the Secretary of State for the Home Department, as represented by the Advocate General for Scotland.  The petitioner left Afghanistan in late 2008, and entered the UK on 30 June 2009.  He claimed asylum on 13 August 2009.  His application was refused.  He was subsequently granted discretionary leave to remain as a minor, valid until 7 November 2010.  He applied for further leave to remain in the UK on 13 October 2010.  That application was refused on 24 June 2011.  Following further submissions, he was subsequently granted leave to remain as the partner of Gemma Vosper, for a limited period of 30 months, valid until 10 January 2016.  By application received by the respondent on 7 January 2016, he applied for further leave to remain as the partner of Angela Jane Fenton, on the basis of his family and private life in the UK.  That application was considered under the 10‑year partner and private life routes of Appendix FM and paragraphs 276 ADE(1) – CE of the Immigration Rules.  Since the petitioner did not meet the definition of a partner under the rules, no question of consideration of “insurmountable obstacles” to family life arose.  As the claim failed under these rules, it was also considered outside the Immigration Rules on the basis of exceptional circumstances, but was refused in that regard also.  By decision, dated 31 July 2016, the respondent also certified the petitioner’s human rights claim as being clearly unfounded, in terms of section 94(1) of the Nationality, Immigration and Asylum Act 2002. 

[2]        The petitioner sought reduction of the decision to certify his claim under section 94(1), the effect of which would be to allow him the opportunity to make an in‑country appeal to the First‑tier Tribunal. 

[3]        Both parties adopted the content of written notes of argument, which I have taken into account together with the oral submissions made at the bar. 

 

The Submissions for the Petitioner           
[4]        The central issue was whether the respondent had erred in law by deciding that the petitioner’s claim was clearly unfounded and was therefore bound to fail.  In that context, the relevant test was a lower one, and was more generous to the petitioner, than the “realistic prospects of success” test, which applied in relation to decisions made under Rule 353 of the Immigration Rules.  A claim which was clearly unfounded was one which had no prospects of success, (R(AK)(Sri Lanka) v Secretary of State for the Home Department [2010] 1 WLR 855, at paragraph 34;  SN v Secretary of State for the Home Department [2014] CSIH 7, at paragraph [17]).

[5]        It was maintained for the petitioner that the effect of the decision, which would require his return to Afghanistan, was disproportionate.  In that regard, the recent decision in case the of R(Agyarko) v Secretary of State for the Home Department [2017] UKSC 11, which concerned cases involving similar factual backgrounds to that of the petitioner, was significant.

[6]        In that regard, the Home Office instructions on the granting of leave outside the Immigration Rules where exceptional circumstances applied, included the following:

“’Exceptional’ does not mean ‘unusual’ or ‘unique’.  Whilst all cases are to some extent unique, those unique features 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 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.” (paragraph 3.2.7d) (Agyarko, at paragraph 19)

 

[7]       In Agyarko, at paragraph 41, Lord Reed stated: 

“As the European court has noted, the boundary between cases best analysed in terms of positive obligations, and those best analysed in terms of negative obligations, can be difficult to draw. As this court explained in its judgment in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799, para 32, the mode of analysis is unlikely to be of substantial importance in the present context. Ultimately, whether the case is considered to concern a positive or a negative obligation, the question for the European court is whether a fair balance has been struck. As was explained in Hesham Ali at paras 47-49, that question is determined under our domestic law by applying the structured approach to proportionality which has been followed since Huang.”

 

[8]        In the petitioner’s case, in assessing the issue of proportionality, the question of whether there were “insurmountable obstacles” to family life which could have been taken into account did not arise because, since he did not meet the definition of “partner”, the petitioner’s claim could not be considered within Appendix FM.  Notwithstanding that, the submission for the petitioner was that the respondent had failed to take into account material factors, indicative of what would be unjustifiably harsh consequences for the petitioner, which, had they been taken into account, would not have justified the certification of the claim as being clearly unfounded. 

[9]        In circumstances where the petitioner could meet the financial requirements for entry clearance, and where his position was that his immigration status, for the purposes of section 117B of the 2002 Act was not precarious, the approach, that it was likely only to be in exceptional circumstances that the removal of the non‑national family member will constitute a violation of Article 8 (Agyarko, at paragraph 54), did not apply. 

[10]      In Rhuppiah v Secretary of State for the Home Department [2016] 1 WLR 4203, doubt had been expressed as to whether it could be asserted with authority that any grant of limited leave to enter or remain, short of indefinite leave to remain, qualified as precarious (paragraph 44).  Even if little weight was to be attached to precarious family life, that was not the same as attaching no weight to it.  Other compelling factors could still outweigh the need to require removal from the UK (paragraphs 53, 54).  Even if, at the time of his application, the petitioner’s immigration status was to be considered precarious, the situation which he and his partner would face in Afghanistan was such a compelling factor.

[11]      Against that background, in the context of the petitioner’s claim, viewed as an application for entry clearance, the question for the respondent had been whether there was a “sensible reason” to require him to return to Afghanistan in order to apply for entry clearance from there (MA (Pakistan) v Secretary of State for the Home Department [2010] Imm AR 196, at paragraph 9).  The respondent had erred in law by finding, in effect, that it would be proportionate to do so, but without identifying such a sensible reason. 

[12]      The petitioner had submitted, with his application, information relating to the nature of his relationship and the unstable security situation in Afghanistan, included in his application forms, his statement, supportive letters from others, articles on Hazaras, (that being the ethnic group to which the petitioner belonged), and an Amnesty International report and country reports on human rights practices in Afghanistan, contained in a US Department of State report.  Notwithstanding that, although the operative part of the decision of 31 July 2016 made repeated references to the concept of “exceptional circumstances”, there was, in contrast, no reference to any exercise involving an assessment of proportionality or the identification of a sensible reason.  The decision was comparable in that respect to that considered in MA (Pakistan), supra, (see paragraphs 10, 11). 

[13]      Further, the respondent had been under a duty to consider the Home Office Country Information and Guidance on Afghanistan:  Security and Humanitarian Situation (July 2016), which was available at the time of the petitioner’s application (AN v Secretary of State for the Home Department [2013] CSIH 111, at paragraph [25]).  That country guidance indicated that the situation in Afghanistan was unstable, that as a result of the armed conflict there, there were large numbers of internally displaced persons, that women and girls were at a disproportionate risk of harm, that, since 2012, the numbers of civilian deaths and injuries had increased, that the security situation had drastically deteriorated, that intensified fighting, the destruction of property, violence, and intimidation remained, that the security situation was becoming increasingly volatile, that the insurgency continued to take a heavy toll on the population, and that abductions, hostage‑taking, and summary executions of civilians continued. 

[14]      Further the Home Office website indicated that visa processing times in relation to applications made from Kabul took 120 days in a third of all cases.  That was information to which the respondent was required to have regard (AN, supra, at paragraph 25), and which was relevant to an assessment of the delay, separation, and family disruption which comprised a factor in the proportionality of the decision (Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420 at paragraph 42). 

[15]      By failing properly to take such information into account, the respondent had failed properly to exercise anxious scrutiny. 

[16]      Further, the reference in the decision letter to the possibility of the petitioner continuing his relationship from overseas, by using modern methods of communication was not relevant in assessing whether there would be no interference with family life (Mansoor v Secretary of State for the Home Department [2011] EWHC 832 (Admin), at paragraph 16). 

[17]      Further, the respondent had erred by failing to recognise that it should only be comparatively rarely that an individual should be required to return for entry clearance (MA (Pakistan), supra, at paragraph 7). 

[18]      Further, the respondent had erred by failing to consider whether the petitioner’s claim was better decided in the UK once and for all, rather than requiring him to return to Afghanistan and to apply from there with the possibility of a further appeal (Chikwamba), supra, at paragraph 42). 

[19]      In relation to the issue of relocation by the petitioner and his partner, the respondent’s decision had been made on a consideration of whether there were relevant exceptional circumstances.  In that regard, the respondent had erred by failing to consider what was proportionate, by taking into account all the factors which were relevant to the petitioner’s case (Agyarko, supra, at paragraph 47).

[20]      In that regard, the petitioner had submitted evidence of his intention to live with Ms Fenton and to marry her.  That was apparent from the statements of the petitioner himself, Ms Fenton, her sister, another of her sisters, her mother, and Ms McGarrell, her friend.  Reference was made to Reed and Murdoch:  Human Rights Law in Scotland, 3rd edition, for the accepted proposition that:

“Certainly, a lawful and genuine marriage involving cohabitation between two persons of the opposite sex will fall within the scope of the article.  However, a relationship outwith marriage may also qualify as a ‘family’, and the scope of Article 8 may also further extend to situations in which a full family life has not yet been established as long as there is a genuine intention to cohabit and to lead a normal family life.”

 

[21]      In circumstances where the petitioner could not meet the requirements of the Immigration Rules, and where no substantive consideration had therefore been given to the circumstances surrounding the petitioner’s relationship in terms of Appendix FM, it was incumbent on the respondent to consider whether the petitioner’s removal was disproportionate in terms of Article 8 (Khan v Secretary of State for the Home Department [2016] SC 536, (“MAK”), at paragraph 14). 

[22]      In that regard, in so far as section 117B of the 2002 Act was concerned, the relevant subsection was section 117B(4).  However, it did not apply, as the petitioner’s relationship with Ms Fenton was formed when he was present in the UK lawfully.  Section 117B(5), which made reference to immigration status which was precarious, concerned only private life, as opposed to family life.  In Rhuppiah, supra, the concept of precariousness and unlawfulness had been distinguished (paragraph 32).  It did not therefore follow that little weight was to be attached to the petitioner’s relationship.  In any event, it was not the case that the petitioner’s immigration status was to be viewed as precarious (Rhuppiah, supra, at paragraph 44). 

[23]      Other factors, identified in the evidence presented to the respondent, and relevant to an assessment of whether it would be proportionate to expect Ms Fenton to accompany the petitioner to Afghanistan, were that (i) she was British, and entitled to remain in the UK;  (ii) she had lived in the UK for all of her life;  (iii) she had no family or other ties with Afghanistan;  (iv) she was working in the UK;  (v) she had accommodation in the UK;  (vi) she did not speak any of the native languages of Afghanistan;  (vii) she was, ethnically, a western woman;  and (viii) on the basis of the available country guidance, indicating the poor security and humanitarian situation in Afghanistan, she would be at significant risk of violence or worse if she relocated there.

[24]      In defining “exceptional circumstances” in terms of refusal resulting in “unjustifiably harsh consequences”, the respondent had fallen into error.  The petitioner did not require to demonstrate only that unjustifiably harsh consequences would result.  The correct test was whether the decision was proportionate and whether a fair balance had been struck between the competing interests of the petitioner, on the one hand, and the those of the state, on the other (MAK, supra, at paragraph 14), even if the petitioner’s immigration status was precarious (Rhuppiah, supra, at paragraph 53, 54).

[25]      In any event, given the available country guidance on Afghanistan, the petitioner had demonstrated that unjustifiably harsh consequences would result from his removal there. 

[26]      Having regard to all of the available information, it could not be asserted that anyone, carrying out a proper assessment, would inevitably reach the same decision that the claim had no prospects of success (Khan v Secretary of State for the Home Department [2015] SC 583, paragraph 11, 12).

 

Submissions for the Respondent
[27]      It was accepted that, for the purposes of demonstrating that a case was not “clearly unfounded”, the relevant test was more generous to an applicant than that of the “reasonable prospects of success” test, and was a lower threshold to overcome (SN, supra, paragraph 17). 

[28]      The appropriate approach to the matter was for the court to apply the normal principles of judicial review (S v Secretary of State for the Home Department [2015] SLT 651, at paragraphs 16 – 42, under reference to ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6).

[29]      The petitioner’s immigration history included the period from 5 March 2012, when he had been served with an IS151A document indicating his liability for detention and removal, until 11 June 2013, when he was granted limited leave, for a period of 30 months, as the partner of Miss Vosper.  Throughout that period, the petitioner had been in the UK without leave to remain.

[30]      It was accepted that, as the result of his relationship with Ms Vosper, the petitioner had been in the UK lawfully, but his leave had been granted for a limited period only, and for the specific reason of his relationship with her and their intended marriage. 

[31]      The content of the petitioner’s application, received on 7 January 2016, made it plain that, at that time, he and Ms Fenton were not living together.  He therefore did not meet the definition of a partner within the Immigration Rules.  In considering the petitioner’s application, the respondent, for that reason, had decided that he did not qualify under the Immigration Rules.  No issue arose in that regard. 

[32]      In determining whether he might qualify outside the Immigration Rules, the respondent had considered whether there were exceptional circumstances, in the sense of something which might justify him being treated differently from what otherwise would be the outcome of the application of the rules.  That was consistent with the approach set out in Agyarko, supra, in which, at paragraphs 54 – 60, the appropriateness of the test of “exceptional circumstances” was acknowledged in cases involving consideration outside the Immigration Rules.  In particular, in characterising the nature of the test, at paragraph 60, Lord Reed accepted the Secretary of State’s definition of the word “exceptional” in the very terms which appeared in the decision made in respect of the petitioner’s application, viz:

“The Secretary of State has not imposed a test of exceptionality, in the sense which Lord Bingham had in mind:  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 words ‘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’.”

 

[33]      In relation to the nature of the petitioner’s relationship with Ms Fenton, it was relevant to note that it had been formed when his immigration status was precarious.  The fact that he may have been in the UK lawfully did not impinge on that.  He was aware that he had been granted limited leave to remain only on the basis of his relationship with Ms Vosper.  That was a relevant consideration in assessing whether his position was precarious (Rhuppiah, supra, at paragraphs 30 – 36;  see also A v Secretary of State for the Home Department [2016] SLT 611, at paragraph 71).  Where immigration status was precarious, it was likely to be only in exceptional circumstances that the removal of the non‑family member would constitute a violation of Article 8 (MAK, supra, at paragraph 14 – 16, 19 – 20).  That approach, in the context of assessing proportionality, was consistent with Agyarko, at paragraph 54 – 60.  In considering what weight was to be given to precariousness in the assessment of proportionality, it was unnecessary to have regard to section 117B of the 2002 Act.  In the context of an Article 8 claim, where immigration status was precarious, and where it was claimed that removal would constitute a breach of the right protected by that article, it was for the petitioner to demonstrate that to be a compelling case by reference to exceptional circumstances (MAK, supra, at paragraph 19).  Here, the time‑limited extent of the petitioner’s leave, and its grant for a specific purpose, were clear indicators of his precarious immigration status.  In circumstances where the relationship, on the basis of which limited leave had been granted, had ended, the petitioner could have no legitimate expectation that he would be able to remain in the UK on the basis of another reason. 

[34]      In Rhuppiah, supra, the court had considered the precarious nature of immigration status in relation to private life, in the context of the grant of a student visa.  It was relevant to have regard to the individual’s awareness of his own position in circumstances in which he would know from the outset that, having been granted limited leave for a particular reason, he would have to leave at the end of a set period (paragraphs 30, 31, 33 – 36).  In the present case, the petitioner could have had no expectation that he would be allowed to remain on any basis other than his then intended marriage to Ms Vosper.  Following the end of that relationship, his position was akin to that of a student whose course of study had come to an end. 

[35]      In relation to the petitioner’s relationship with Ms Fenton, it was also relevant to note that, at the time of the application, they were not a cohabiting couple.  Family life, for these purposes, required a relationship which was close and had an apparent degree of permanence.  Simply to be in a relationship with another was not enough.  In Kroon and others v The Netherlands [1995] 19 EHRR 263, it was held that family life for the purposes of Article 8 was not restricted to marriage and that it might encompass other relationships where parties were living together outside marriage.  Although, as a rule living together may be a requirement for such a relationship, exceptionally other factors, such as children being born to the couple, could also serve to demonstrate that there was sufficient constancy to create the necessary family ties (paragraph 30).  Reference was made to the Practical Guide on Admissibility Criteria of the European Court of Human Rights, in which it was stated that engagement, in itself, did not create family life (paragraphs 319 – 324).  In KM v Secretary of State for the Home Department [2014] CSOH 7, it had been held that a couple who were engaged, lived apart, and had no financial interdependence between them, were not enjoying family life as defined in Article 8 (paragraph 25).  In circumstances where the petitioner was not living together with Ms Fenton, Article 8 was similarly not engaged.

[36]      Although for the petitioner, some weight had been placed on the guidance set out in the decision of Chikwamba, supra, that case was not relevant in the circumstances under consideration.  The facts in Chikwamba were that the applicant fulfilled the relevant entry requirements but for the fact that, in accordance with the existing policy, she should have applied from outwith the UK.  The question in that case was whether, in these circumstances, it was proportionate to require her to return to Zimbabwe for that purpose.  That was not the positon in the petitioner’s case.  The respondent had rejected the petitioner’s claim on the basis that he did not meet the relevant requirements, either under the Immigration Rules or when considered outside them, and had determined that it was clearly unfounded.  His application had not been rejected on the basis that it ought to have been made from abroad. 

[37]      In any event, the petitioner’s application had made no reference to the approach set out in Chikwamba.  It was concerned, not with satisfying the respondent that the entry requirements were met, but rather that leave to remain was appropriate.  Reference was made to YH v Secretary of State for the Home Department [2016] CSOH 72, for the proposition that criticism of the Secretary of State was not appropriate in circumstances where the particular matters founded upon by an applicant were not set out in the covering letter which accompanied an application (paragraphs 89 – 96).  In Agyarko, the matter had been considered by Lord Reed, who had stated, at paragraph 36:

“In Sales LJ’s view, Ms Agyarko’s case was very far from a Chikwamba type of case. She had not asked the Secretary of State to consider whether leave to remain should be granted on the basis of Chikwamba. This was not an argument of such obviousness that the Secretary of State had been obliged to consider it regardless of whether it was mentioned. Accordingly, the Secretary of State could not be said to have erred in law in failing to grant leave to remain on that basis.”

 

In similar circumstances, the arguments raised for the petitioner on the basis of Chikwamba, should be rejected. 

[38]      Further, Chikwamba concerned circumstances in which the claimant, if required to apply from abroad, was likely to succeed.  That could not be said in the case of the petitioner in circumstances in which, at the time of his application, he did not qualify as a partner under Appendix FM.

[39]      In relation to the submission for the petitioner that the respondent had erred by finding it proportionate that Ms Fenton could relocate to Afghanistan, the response for the respondent was that no such finding had been made.  The respondent had determined that the nature of the petitioner’s relationship was not sufficient for the purpose of the Immigration Rules, and that no exceptional circumstances were demonstrated.  That being so, there was no requirement on the respondent to consider what the couple might do in relation to the consequences of the petitioner’s removal (MAK, supra, at paragraph 18).  In circumstances in which it had been determined that the relationship did not fall within Article 8, it was unnecessary to consider whether Ms Fenton’s relocation to Afghanistan would be proportionate.  It was accepted, that the available country guidance indicated that Ms Fenton would be at risk in Afghanistan, but the plain fact was that she did not have to go there.  Even if Article 8 was engaged, contrary to the respondent’s position, then given the petitioner’s precarious immigration status, even if Ms Fenton did not follow him to Afghanistan, the fact of separation, in the absence of exceptional circumstances would not constitute a breach of his right to a family life (MAK, at paragraph 16, 18). 

[40]      Reference was made to the case of LWF v Secretary of State for the Home Department [2014] CSIH 77, in which factual circumstances very similar to those of the petitioner’s were under consideration, and similar arguments advanced.  The decision in that case indicated the correct approach, in such circumstances, in relation to a challenge to certification under section 94(2).

 

Discussion

[41]      In a case such as this, the test to be applied in determining whether the petitioner’s case was truly “clearly unfounded”, and therefore one with no prospects of success, is more generous to the petitioner, and sets a lower threshold, than the “reasonable prospects of success” test (R (AK (Sri Lanka)),supra, at paragraph  34;  SN, supra, at paragraph 17).

[42]      Although for the petitioner, reliance was placed on the approach set out in Chikwamba, supra, it was accepted that the petitioner’s case was not strictly comparable, in that his application, received on 7 January 2016, was not presented as one seeking entry clearance, and it had not been decided by reference to the Home Office policy under consideration in Chikwamba.  Nevertheless, the approach considered in relation to the issues raised in that case, concerning the weight to be accorded to harsh and unpalatable conditions in the country of intended return, and the extent and effect of likely interference with family life, in the overall assessment of the proportionality of the decision to be made, is reflected in the reasoning of the decisions in MA (Pakistan), supra, MAK, supra, and Agyarko, supra.  What emerges from these decisions is that in cases involving questions as to the existence or not of exceptional circumstances, the test is one of proportionality, albeit that in cases involving precarious family life, something compelling is required to outweigh the public interest. 

[43]      Under reference to Reed and Murdoch:  Human Rights Law in Scotland, 3rd edition, at paragraph 6.14, it was asserted, on behalf of the petitioner, that on the basis of his genuine intention to cohabit, marry and lead a normal family life, his relationship, as at the time of his application, fell within Article 8.  In support of the existence of that genuine intention, reference was drawn to the petitioner’s statement and the letters by Ms Fenton, other members of her family and her close friend, all of which accompanied, and formed part of, the petitioner’s application.  On a fair reading, the content of each of these documents could be construed as being eloquent of the emotional depth of the parties’ relationship and the sincerity of their intentions.  Although they were not cohabiting at the time of the petitioner’s application, his statement indicated that they had done so between January and August 2014, and explained the supervening circumstances, unconnected with their relationship, which rendered that state of affairs no longer possible.  I consider it also significant that, in his statement, the petitioner indicated that, although he does not live at the same address as Ms Fenton, he frequently stayed overnight with her, and that they “go away” most weekends.  In her letter, Ms Fenton confirmed that the pursuer “stays at my flat most days”.

[44]      In that regard, I was informed that the petitioner and Ms Fenton were now living together, and had done so since November 2016.  Although that fact was not before the respondent at the time of the petitioner’s application, reference was made to the case of Regina v Secretary of State for the Home Department, ex Parte Launder 1997 1 WLR 839, for the proposition that, in certain cases, where there were concerns about human rights and the risk to an applicant’s life and liberty, a decision could be set aside in order that the matter could be reconsidered in the light of developments constituting changed circumstances (per Lord Hope, at 860H – 861B). 

[45]      In any event, given the particular history of the petitioner’s relationship with Ms Fenton, as it was at the date of his application, I consider that his circumstances, in that regard, could be distinguished from those under consideration in the cases of Kroon, supra, and KM, supra, in which there had never been any cohabitation. 

[46]      I accept that in the context of section 117B of the 2002 Act, there is a distinction be drawn between precariousness and unlawfulness (Rhuppiah, supra, at paragraph 32).  However, I am satisfied, for the reasons submitted by the respondent, that in the case of the petitioner, his relationship with Miss Fenton was formed when his immigration status was precarious.  At that point, he was aware that his leave to remain was restricted in time, and conditional on the intended development of his relationship with Ms Vosper.  That being so, and on the basis that his relationship with Ms Fenton amounted to family life, in order for him to succeed in his application it was necessary for him to demonstrate exceptional circumstances, such that his removal to Afghanistan would constitute a breach of Article 8. 

[47]      What then were the exceptional circumstances, if any, which arose for consideration in the petitioner’s application?  In that regard, emphasis was placed on the voluminous documentation, pertaining to the unstable and insecure nature of the current situation in Afghanistan, which was included with the application.  Of the 350 pages which comprised the covering letter, the two formal applications, and supporting documentation, some 90 pages comprised (i) news articles concerning the persecution of the Hazara ethnic group, (ii) an Amnesty International report (2015), and (iii) a US Department of State report (2014).  Specific reference to the first and third of these was made in the text of the covering letter.  All three were listed at the end of the covering letter, as enclosures.  Almost the entire content of these documents indicated the perilous state of affairs pertaining in Afghanistan.  In that regard, this case is to be distinguished from the position under consideration in YH, supra, in which only particular adminicles of evidence from the content of an expert report were relied upon but not specifically referred to in a covering letter.  In any event, I accept that, in accordance with the observations made in AN, supra, at paragraph 25, it was incumbent on the respondent to have regard to the available Home Office Country Information Guidance on Afghanistan:  Security and Humanitarian Situation (July 2016).  It is of note that, in the decision of 31 July 2016, no reference is made to any of these materials, or to the unjustifiably harsh consequences on return which their content would suggest.

[48]      For the respondent, it was submitted that the petitioner’s claim was based on family life only, rather than on his fear of persecution, but it is to be noted that the issue of fear of persecution on the grounds of the petitioner’s religion and ethnicity, in the context of the current situation in Afghanistan, together with the issue of the risk to which Miss Fenton would be exposed were she to relocate, was specifically raised in the application’s covering letter. 

[49]      It would appear, from the content of the decision of 31 July 2016, that the respondent’s approach to the issue of exceptional circumstances, as was submitted on the respondent’s behalf, was influenced by the determination that, since the petitioner did not meet the definition of a partner, Article 8 was not engaged.  In determining the case, however, including the question of whether Article 8 was engaged on the basis of the nature of the petitioner’s relationship, it was necessary to consider “all factors relevant to the specific case in question” (Agyarko, supra, at paragraph 57). 

[50]      Several ancillary criticisms were made of the decision.  In that regard, I accept, on the basis of Mansoor, supra, at paragraph 16, that the reference in it to the possibility of maintaining contact from overseas by modern methods of communication is not a relevant consideration in an assessment of the extent to which family life might be disrupted. 

[51]      An issue was raised as to the meaning to be ascribed to the phrase “claimed relationship” as used in the decision text.  In its context, the phrase could be a negative reference to the determination that the petitioner did not meet the definition of a partner for the purposes of the Immigration Rules, or it might simply be a reference to the fact that the relationship with Ms Fenton was prayed in aid by the petitioner.  On either interpretation, I do not consider the use of the phrase to have been material. 

[52]      Although, in some respects, there are similarities between the petitioner’s situation and the factual position considered in LWF, supra, there are also differences.  Although the petitioner has as a poor immigration history, to the extent that he remained within the UK without leave from 5 March 2012 until 11 June 2013, that is a significantly lesser period than the five year overstay taken into account in LWF.  In that case, unlike that of the petitioner in this case, the relationship concerned had never involved the couple living together.  More significantly, in contrast to the situation relating to Afghanistan, in LWF there was nothing to suggest that unacceptable consequences would result following return to China.  In these circumstances, I consider the facts of LWF to be significantly different from those of the petitioner’s case. 

[53]      On a fair reading of the decision of 11 July 2016, its terms do not indicate that proper consideration was given to all factors relevant to the petitioner’s case (Agyarko, supra, at paragraph 57), in relation to the nature of his relationship, as assessed for the purposes of Article 8 outside the Immigration Rules, or in relation to the question of whether it was demonstrated that there were exceptional circumstances to be taken into account (MAK, supra, at paragraph 19).  The apparent failure to do so indicates an error of law on the part of the respondent, by failing properly to make the requisite judgement on proportionality.  In consequence, I find that in certifying the petitioner’s claim as she did, the respondent did so without having properly assessed its merits.

[54]      Even putting to one side the new information imparted in the course of the submissions, to the effect that the petitioner and Miss Fenton do now cohabit, and that he would meet the financial requirements of entry clearance and leave to remain, I accept that it cannot justifiably be asserted that anyone carrying out a proper assessment, involving consideration of all the relevant factors and applying the appropriate test of proportionality, would inevitably reach the same decision as the respondent did, that is, that the petitioner’s claim had no prospect of success and was bound to fail.  In particular, I am satisfied that, on such an appropriate approach to the petitioner’s application, it cannot justifiably be asserted that he would necessarily fail to demonstrate that, in light of all the relevant known facts, family life was established on the basis of his relationship with Ms Fenton and thus Article 8 engaged.  On that basis, in light of the material submitted with the application, I am persuaded that it cannot justifiably be asserted that the petitioner would be bound to fail in seeking to identify the necessary weighty factors in his favour, amounting to exceptional circumstances, which would be necessary to overcome the normal result in this type of precarious status case (MAK, supra, at paragraph 19).

[55]      For these reasons, I find that the respondent erred in law by certifying the petitioner’s claim as she did.

 

Decision
[56]      In the event, therefore, I shall sustain the petitioner’s plea‑in‑law, repel the respondent’s third and fourth pleas‑in‑law, and reduce the decision, dated 31 July 2016, to certify the petitioner’s human rights claim as clearly unfounded in terms of section 94(1) of the Nationality, Immigration and Asylum Act 2002. 

[57]      I shall reserve, meantime, all questions of expenses.