[2014] CSOH 35



in the cause



For judicial review of a refusal of permission to appeal by the Upper Tribunal dated 15 January 2013


Petitioner: Caskie; McGill & Co

Respondent: O'Rourke; OAG

21 February 2014


[1] This petitioner came before me at a first hearing where the petitioner sought reduction of a decision made by a judge of the Upper Tribunal, dated 15 January 2013. By that decision the Upper Tribunal refused the petitioner permission to appeal against the decision of the First-tier Tribunal (FTT) Judge to refuse leave to appeal on 14 December 2012.

[2] The petitioner is a citizen of Pakistan who applied for leave to enter in the UK as a fiancée, which application was refused on 13 December 2010. On 13 December 2010 she appealed. Her appeal was allowed and she was granted a six month visa valid until 30 April 2011. She arrived in the UK on 21 December 2011 and on 9 January 2012 she got married. She had applied for variation of her leave to remain to allow her entry as spouse, on 27 April 2012, which application was refused on 18 September 2012 on the basis that she did not have the required language certificate under the Immigration Rules. She appealed to an immigration judge who dismissed her appeal in a decision dated 20 November 2012. She then sought leave to appeal from that decision from the FTT and subsequently sought leave from the Upper Tribunal as rehearsed above.

[3] At the time the petitioner made her application for variation of her leave to remain on 27 April 2012 she was required to provide a certificate of an appropriate English language qualification - that is a certificate from a list of approved providers appended to the immigration rules. Breach of this immigration rule could result in refusal of the application. However the approved list of providers which was appended to the rules had not been approved by Parliament and on 18 July 2012 the court of appeal held in Alvi v Secretary of State for the Home Department (SSHD) 2012 1 WLR 2208 that the requirement was unlawful. On 20 July 2012 this was remedied by a change in the Immigration Rules whereby the same requirement was properly incorporated into the rules.

[4] The decision of the immigration judge focussed on an assessment of the proportionality of the refusal in accordance with article 8 of the European Convention of Human Rights (ECHR). It was accepted by the petitioner that this was the appropriate issue for assessment, namely whether interference with her article 8 rights was proportionate to the legitimate aim of the economic wellbeing of the country through 'firm and fair immigration control' in accordance with Razgar v SSHD [2004] 2 AC 368. This proportionality exercise involved a balancing of the article 8 rights of the petitioner to remain, along with the interests of the state in having an effective, efficient and lawful system of immigration control.

[5] The petitioners application to the Upper Tribunal against refusal of leave to appeal by the FTT, submitted inter alia that those admitted to the UK temporarily for the purpose of marriage are spouses who are granted two years leave to remain. Whereas the petitioner as fiancée was only granted six months leave to enter the UK. In the circumstances of the petitioner who got married upon entry to the UK, account ought to be taken of the very restrictive time period within which an English language certificate could be obtained and this reduced period was a relevant factor in an article 8 assessment.

[6] The decision of the Upper Tribunal in refusing permission to appeal stated:

"The appellant was granted entry clearance on 30 October 2011 for a period of 6 months. That is not "exceptionally unusual" as is argued in the grounds; it is exactly the period specified in paragraph 290, the rule under which her appeal was allowed. She delayed in coming for some two months; no reason is offered for this. The judge was entitled to find that the appellant should have been aware of the change of the rules in November 2010, well before her arrival and also entitled to find she should therefore have taken steps to learn English in anticipation of what would be required of her when she sought to vary leave. At the time of her application she had not even enrolled in a language course."

The Issues

[7] The two issues before me were:

(1) Whether the unlawfulness of the requirement for a language certificate at the time of the petitioners application was a relevant factor and ought to have been taken into account in the proportionality assessment under article 8; if so whether this, being an issue under Convention rights was one which, although not raised by the petitioner, ought to have been considered by the Upper Tribunal and finally, if so, does this failure raise an important point of principle or practice such as to meet the test in Eba v SSHD [2011] UKSC 29 and entitle this court to intervene ?

(2) Whether the short period available to the petitioner to gain a language certificate in the context of the longer period available to spouses, was relevant to an article 8 assessment. And if so, did a failure by the Upper Tribunal to have regard to same, raise an important point of principle or practice such as to meet the Eba test and entitle this court to intervene ?

Petitioners Submissions

[8] In respect of the first issue the petitioner emphasised that at the time of her application the respondent had imposed an unlawful requirement upon her. This was a pertinent factor which was relevant to the proportionality exercise undertaken by the immigration judge. In that it constituted a failure to operate a lawful system of immigration control and therefor bore upon the weight to be attached to the interests of the state in the balancing exercise under article 8. In this regard counsel referred to the case of EB Kosovo v SSHD [2008] UKHL 41 where the illegality concerned an unreasonable delay in the proceedings which was viewed as reducing the weight to the requirements of immigration control in consideration of article 8. Lord Bingham stated at paragraph [16]:

"[16] Delay may be relevant, thirdly, in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes."

[9] The petitioner recognised that there were different types of illegality but submitted the illegality would have to be of no weight whatsoever before it would be irrelevant.

[10] Here it was submitted the decision of the immigration judge centred on the breach of the rules and this demonstrated the relevance of the failure to have regard to the unlawfulness of the requirement.

[11] It was accepted that this issue had not been raised before the Upper Tribunal but where such an issue involved the application of Convention rights it was one which nonetheless ought to have been considered by the Upper Tribunal. Reference was made to the approach taken by the Upper Tribunal in R v Immigration Appeal Tribunal ex parte Shen at paragraph [27] which in turn relied on the following passage in R v SSHD ex parte Robinson [1998] QB 929:

"If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour...Similarly, if when the Tribunal reads the special adjudicators decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued."

[12] The petitioner submitted that this - the failure to have regard to the unlawfulness of the requirement - was a Robinson obvious point.

[13] In respect of the second issue it was submitted that in conducting an article 8 assessment the rules, or a breach of the rules, was only the starting point. Not the end point which was the approach taken by the immigration judge. Reference was made to the immigration judge's decision at paragraph [36], which the petitioner submitted showed that the breach of the rules was viewed as determinative. The petitioner relied upon the reasoning in Patel v SSHD [2013] UKSC 72 at paragraph [54] where Lord Carnwarth emphasised that the rules were the starting point for any article 8 consideration and relied upon Lord Bingham's observations in Huang at paragraph [6] that:

"But an applicant's failure to qualify under the rules is for present purposes the point at which to begin, not end, consideration of the claim under article 8. The terms of the rules are relevant to that consideration, but they are not determinative"

[14] Counsel for the petitioner also relied upon the reasoning in the earlier case of Mansoor v SSHD [2013] UKSC 72 at [37] -[38]:

"[37] Non-compliance with the Immigration Rules is the starting point for human rights analysis because if you cannot comply with the rules you do not need to rely upon human rights to remain; it is not the end point. The Rules themselves as Lord Bingham has pointed out in Huang are not the source of balance between the public interest and that of the individual.

[38] It is thus a misdirection for the decision maker to state as in this case, the policy of the immigration regulations justifies interference with family life."

[15] Here it was submitted the approach of the immigration judge was to take the breach as determinative and a 'rule is a rule' approach not favoured in Patel and as such he had erred.

[16] It was submitted that it was relevant here to consider the context of this breach. There was an artificial distinction between those like the petitioner entering the UK as a fiancée given six months leave and those entering with the purpose of getting married receiving two years leave. Given the circumstances of the petitioner, now a spouse, the reduced leave afforded to the petitioner ought to have been taken into account in the proportionality exercise under article 8. In any event the short time frame ought to have been taken into account in consideration of the degree of failure involved here.

[17] In support of these submissions - that it is a relevant consideration 'how bad' the breach is - the petitioner relied again upon the reasoning in Patel at paragraphs [54] - [57]. Patel addressed what has been called the 'near miss' arguments in various conflicting cases. Within this consideration Lord Carnwarth at [57] suggested that the balance drawn by the rules may be relevant to the consideration of proportionality.

[18] This was a ground of appeal before the Upper Tribunal, but it was submitted, the Upper Tribunal simply repeated the error in their decision. This was an error on their part which had general application for all those in the position of the petitioner entering as a fiancée and raised an important point of principle as to whether the reduced period for such entrants, in the context of the contrast to those entering for the purpose of marriage was a relevant factor in assessment of article 8.

[19] Finally in respect of the Eba test what was required, where there was an error of law, was an error which occurred in a new or unprecedented way which had general application. It was wrong to elevate this test to requiring an error of law to be of a new species - it was sufficient that it was an error of law arising in new and different circumstances which had general application. Here both issues, individually constituted such an error.

Respondents Reply

[20] The respondent emphasised that in the first instance the petitioners submissions had to meet the test in Eba. The petitioner may have constructed an able intellectual argument, but it showed that neither of the grounds of review 'leapt out of the page' as Eba requires. It was important to appreciate that even if there was an error in law, that was not enough. In any event the real basis of challenge here was a purported failure to take account of material issues, which of itself, is not enough.

[21] Reliance was placed on the decision of the Inner House in SA v SSHD [2013] CSIH 62 that at this stage the court had to perform a gate-keeping role [43], the stringency of the test and its application being intended to the rare and exceptional case [44]. The requirement to be met here was to show the issues raised an important point of principle or practice of general application.

[22] Finally the first ground of review had not been raised before the Upper Tribunal and therefore required to show a "strong prospect of success" as set out in Robinson. Counsel for the respondent suggested that this meant a strong prospect of success in any ground of appeal to which leave was granted. In other words, the court had to be satisfied of a strong likelihood that at any appeal before the UT regarding the prior illegality of the requirement in the article 8 assessment, would result in the decision of any article 8 assessment favouring the appellant.

[23] In any event in respect of the first issue there was no error of law because at the date of determination the requirement for a language certificate was lawful.

[24] Secondly, the respondent disputed that immigration judge's decision determined the matter simply on a breach of the rules. What the immigration judge had determined was that the breach of the rules was an important element - not that it was determinative. It was clear that, the FTT and the Upper Tribunal were alive to the whole circumstances of the petitioner and it was accepted that the immigration judge had made an article 8 assessment. There was therefore nothing unreasonable in the approach of the judge at first instance nor in the consideration of the Upper Tribunal.

[25] The respondent accepted the reasoning in Patel that a breach of the rules involved a question of balance. However Lord Carnwarth in Patel at paragraph [56] also made clear that a 'near-miss' under the rules could not provide substance to a human rights case otherwise lacking merit. There was no strong article 8 claim here and this was not a 'near-miss' case. This was not oversight - it was a failure to comply in a context where no steps were taken to attempt to do so.


The First Issue - Unlawful Requirement

[26] The difficulty for the petitioner in the first issue is that at the time of the decision the requirement for a language certificate was lawful. That is the time that matters and it seems to me completely answers the petitioners point.

[27] Further, the illegality here was a matter of form or procedure and whilst this is nonetheless important, because the rule does not have the force of law, the substance of the rule here remained the same. This falls to be distinguished from the inevitable unfairness which arises from unreasonable delay. It was not suggested before me, or at any stage in the tribunal process, that any unfairness resulted from the two and half months period where the equivalent but unlawful requirement existed, or that it resulted in unpredictable or inconsistent consequences which caused the concern in Kosovo above.

[28] For these reasons I do not need to address the additional arguments regarding the fact that this matter was not previously raised and the meaning of success in R v SHHD ex parte Robinson.

The Second Issue - Breach Of The Rule As Determinative

[29] I am not persuaded that the decision by the immigration judge here is fairly read as treating the breach of the rules as the end point and determinative. Certainly he states at paragraph [36] that it is "the most important element in this case". But he does so in the context of his consideration of all the circumstances of the petitioners failure and decides, as he is entitled to do on the evidence, that the failure here was a breach in the context where there could have been compliance and no real explanation was provided.

[30] This is the view the Upper Tribunal took of the decision and the Upper Tribunal decision puts the failure in the context of the steps which could have been taken and the absence of any explanation, which factors the Upper Tribunal further considered weighed against the petitioner.

[31] I do not accept the respondents submission that the article 8 claim was not a strong one. The petitioner is a lawful entrant, married to a British citizen, her application was within time and she had enrolled in college.

[32] On the other hand I am not persuaded that the nature of the breach here could be equated to a 'near miss' failure in obtempering the rules. Had it been so, I accept this could be a factor relevant to the proportionality exercise. The nature of the breach of the rules which underpinned Sedley LJ reasoning in Pankina was very different to here. Indeed, I note the contrast to the position here where at paragraph [46] Sedley LJ observes :

"It is one thing to expect an applicant to have the necessary academic and linguistic qualifications: here a near miss is as good as a mile. It is another for an applicant to fall marginally or momentarily short of financial criterion"

[33] Further I consider there is a danger when viewing a breach of a rule as a narrow issue, to see it as opening the door to depart entirely from the rules and conflate the proportionality exercise with a wholly discretionary exercise. It is important to remember as Lord Carnwarth observed that article 8 is not a general dispensing power (Patel at [57]). Here in essence the petitioner seeks to establish that the background to this breach is a factor or ground under article 8 which it is not.

Eba Test

[34] In any event I do not consider the issues raised meet the Eba test. The peculiar illegality raised is not of sufficient substance to be properly described as raising an important point of principle or practice of general application. Whilst the second issue turns on the terms of this particular decision and does not raise any new point (SA v SSHD at [43] and Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60).

[35] For these reasons I shall refuse the petition and uphold the respondent's third plea in law.