SM AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2014] CSIH 98
XA94/13
OPINION OF LADY CLARK OF CALTON
in the application for leave to appeal under section 13(4)(b) of the Tribunals, Courts and Enforcement Act 2007
by
SM
Applicant;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
Act: Caskie; Drummond Miller LLP
Alt: McIlvride; Office of the Advocate General
21 November 2014
[1] In this case the applicant seeks leave to appeal to the Court of Session from two decisions of the Upper Tribunal. In the first decision dated 5 June 2013 the Upper Tribunal refused to find the applicant entitled to enter the United Kingdom. In the second decision dated 19 July 2013, the Upper Tribunal refused to grant permission to appeal to the Court of Session.
[2] Although the application for leave to appeal bears to be in respect of both decisions, I consider that the relevant decision in respect of which leave may be sought is the substantive decision of the Upper Tribunal dated 5 June 2013. I consider that the decision of 19 July 2013 is an “excluded decision”.
[3] The application is made under the Tribunals, Courts and Enforcement Act 2007 section 13 and rule 41.2 of the Rules of the Court of Session 1994 on the basis that the proposed appeal raises an important point of principle.
Summary of the history
[4] The applicant is aged 44 years and is a citizen of Pakistan. His application seeking entry clearance with a view to settlement as a spouse of SS, a person present and settled in the UK, was refused by the respondent on 4 May 2012. He appealed the refusal and there was a hearing at Glasgow on 11 January 2013 before the First Tier Tribunal.
[5] The First Tier Tribunal found in fact that there was a relationship between SS and the applicant in about 2000. The First Tier Tribunal was prepared to accept that relationship resulted in their marriage in 2000 and that the applicant and SS “more likely than not” had a child MS born 3 September 2002. Thereafter in about January 2003, SS entered the UK with said child and claimed asylum. Her asylum claim was based on a history which narrated violence and beatings from the applicant. She said she could not tolerate his torture and that she had to flee Pakistan to save her life.
[6] Thereafter SS had four other children. It was not disputed that the applicant, who remained in Pakistan, was not the father of said four children. In 2013, SS sought to sponsor the applicant and claimed that, following a visit to Pakistan in 2012, she and the applicant “decided that they wanted to try and make a relationship work again”. She wanted the applicant to live with her and the five children and be a father to them.
[7] The First Tier Tribunal found it impossible to reconcile the sworn representations of SS in 2004 with her sworn representations in 2013. The First Tier Tribunal found SS wholly incredible and unreliable and stated:
“I cannot be any more satisfied than was the ECO that these parties are actually still married or that they have any actual intention to live together as husband and wife in a valid and subsisting union in the UK.”
The First Tier Tribunal further concluded inter alia that as the child MS had seen his father once since he was three months old and SS had seen the applicant only twice and that recently, in nine years, he could not be satisfied that a family life exists as between them protected under article 8.
[8] On 11 April 2013, the Upper Tribunal granted permission to appeal, on the limited ground of article 8 of the European Convention of Human Rights (ECHR), on the basis that “it is, just about, arguable that the judge has not properly considered the proportionality of the decision given that he has accepted that the child was probably the appellant’s child and that there has been some contact”.
[9] On appeal to the Upper Tribunal, that Tribunal considered the submissions on behalf of the appellant including a new legal submission to the effect that in assessing proportionality no distinction should be made between “in country” applications and “out of country” applications under reference to Appendix FM of the Immigration Rules which makes provisions in respect of article 8 and family members. It was submitted that the applicant can satisfy the requirements of an “in-country” application and should be given the benefit of that in considering the application.
[10] The submissions made on behalf of the applicant were rejected by the Upper Tribunal. The Upper Tribunal found (paragraph 19):
“The question was primarily one of fact for a judge to determine on the evidence. He was entitled to conclude as he did. The reasons given are more than adequate… If that conclusion is sustained that is decisive…”
In paragraph 20 of their decision, the Upper Tribunal rejected the submission in relation to “in-country” and “out of country” cases and concluded that the various considerations which were identified were not decisive for present purposes.
Submissions of counsel
[11] Counsel for the applicant submitted that the Upper Tribunal had erred in law in that there had been a failure by the Upper Tribunal to recognise that the respondent, in promulgating the Appendix FM rules, had herself set out the requirements to be met in considering applications which involved article 8 of the ECHR. In the Appendix FM rules, the respondent had set the balance to be struck between the right to respect for private and family life and the legitimate aims of protecting other interests in the public interest.
[12] I was addressed in some detail by counsel for the applicant about the content of these rules insofar as they applied to applications by applicants seeking to remain in the UK on the basis of their family life. The history of the development of the Appendix FM rules was explained under reference to MF (Nigeria) v Secretary of State for the Home Department (2013) EWCA Civ 1192 and MF v SSHD (2013) CSIH 52. During the course of submissions, counsel for the respondent intervened to agree that the application should proceed on the hypothesis that if the applicant was residing in the UK, he would satisfy the requirements to be met to qualify under article 8 in respect of a person seeking to remain in the UK under the Appendix FM rules. I understood this intervention was made to save court time. Counsel for the applicant submitted that this concession considerably advanced his case.
[13] Counsel for the applicant accepted that he still required to persuade the court that rules relating to “in-country” applications were to be read across to applications relating to “out of country” applications and that the Upper Tribunal erred by failing to make such a read over. If the Upper Tribunal had done so, counsel submitted the Upper Tribunal would have concluded that the First Tier Tribunal had erred in law. Counsel submitted under reference to paragraph 19 of the determination of the Upper Tribunal that the Upper Tribunal had asked the wrong question. The Upper Tribunal stated:
“The question was primarily one of fact for the judge to determine on the evidence. He was entitled to conclude as he did. The reasons given are more than adequate. …”
Counsel submitted that in paragraph 20 when the Upper Tribunal attempted to engage with the submission about the read across between “in-country” and “out of country” cases, the Upper Tribunal were not entitled to conclude that there are general differences between the two situations.
[14] As I understood the submission of counsel for the applicant, his proposition was that once it was accepted that the applicant “ticked the boxes” for the rules set out in relation to “in-country” applications that was the end of the matter as the respondent in the Appendix FM rules had set out a framework in which the article 8 assessment was to be determined. In certain circumstances, as in the present case, this had the result that it was easier for an applicant to succeed under the rules compared with a freestanding article 8 assessment unconstrained by the framework of the Appendix FM rules. As I understood the final position of counsel, he did not dispute that when an article 8 assessment was carried out it was open to the First Tier Tribunal to find against the applicant. That did not amount to an error of law in this case. But he submitted the error of law arose because the application required to be considered within the framework of the Appendix FM rules and that had not been done.
[15] In response, counsel for the respondent, under reference to his note of argument 14 of process, invited the court to refuse the application. He submitted that the main submission made by the applicant had not been made before the First Tier Tribunal and did not form one of the grounds of appeal to the Upper Tribunal. Any reference to the submission about the Appendix FM rules by the Upper Tribunal were obiter.
[16] In any event, counsel stated that the submission relied on by the applicant was misconceived. The provision in the relevant Immigration Rules reflect the respondent’s considered view (as endorsed by Parliament) of where the proportionality balance in terms of article 8 is to be struck in the particular factual circumstances provided for in the Appendix FM rules. It is obvious that the applicant in this case is not an “in-country” applicant. There is no read over as between “in-country” and “out of country” applicants. If the applicant wishes to have an application considered under the Immigration Rules, he must expect that application to be considered under the rules which apply to him, that is the “out of country” application rules. The applicant’s case was properly considered under the rules applicable to him and an article 8 assessment was duly carried out by the First Tier Tribunal. The Upper Tribunal correctly concluded that the First Tier Tribunal made no error of law in reaching the conclusion which it did.
Discussion
[17] SS came to the UK with the child MS and sought refuge alleging violence and torture by the applicant against SS. Years have passed with no contact with the applicant except the limited contact described by the First Tier Tribunal. Said child has been brought up by SS in the UK with other children who are his half brothers and sisters.
[18] It appears in this case that issues which were not part of submissions before the First Tier Tribunal and not identified in the grounds of appeal have ended up forming the basis for a ground of appeal on which leave is sought before this court. In my experience this is becoming a common feature of such applications. This is not the case to deal with this problem but some regard must be given to the nature and limits of the appeal process.
[19] I have considered the merits of the submissions and conclude that the applicant has not identified any error in law on the part of the Upper Tribunal. I consider that the Upper Tribunal were too restrained in paragraph 20 in concluding that the considerations raised in the submissions about the Appendix FM rules “are not decisive for present purposes”. I consider that the submissions are not only “not decisive” they are without merit. No sound legal basis was put before me to explain why there was or should be some read across from rules relating to “in-country” applications to rules relating to “out of country” applications. This appeared to be mere assertion on the part of counsel. In my opinion the assertion was not based on any legal principle and defied common sense. Counsel sought to make a virtue out of the former. I was invited to conclude that in the absence of any legal principle, developed in case law to support his assertion, this somehow raised an important point of principle which would be of assistance to resolve in other cases. I am unpersuaded that the proposed appeal raises any important point of principle to be resolved by granting leave to appeal.
Decision
[20] I conclude that the applicant has failed to bring himself within section 13(6)(a) of the 2007 Act and leave to appeal is refused.