[2013] CSOH 176



in the petition of



For judicial review of a decision by the Secretary of State for the Home Department dated 26 March 2013 refusing to allow the petitioner leave to remain as a spouse of a UK national


Petitioner: Winter; Drummond Miller LLP

Respondent: O'Rourke; Office of the Advocate General

14 November 2013


[1] The petitioner was born in May 1971. He is a Pakistani national. He entered the UK on 15 July 2006 pursuant to a five-year visitor visa issued on 24 November 2005 and valid until 24 November 2010. He entered the UK on a number of occasions while his visa was valid, the last such occasion being in November 2010. He remained in the UK after his visa expired. In May 2011 he was discovered working in Stirling, contrary to the restrictions in his (expired) visitor visa, was arrested as a suspected immigration offender, was interviewed at Stirling Police Station and was served with notice that he was liable to be deported. However he was not in fact deported. Instead he was released subject to reporting requirements with which he has complied. It is averred by the Secretary of State that, while being interviewed, the petitioner admitted that he had worked illegally on previous visits to the UK in breach of the terms of his visitor visa, but this is not admitted.

[2] On 17 September 2011, while he remained in the UK subject to reporting requirements, the petitioner married a UK national. He was 40 at the time. His wife was in her early 20s. They met for the first time on 20 November 2010, just before the petitioner's visa expired, started living together in May 2011, decided to get married in June 2011 and did in fact get married in September 2011.

[3] On 22 November 2011 the petitioner submitted an application for leave to remain in the UK as the spouse of a UK national. This application was refused by letter of 17 January 2012 ("the first refusal letter"). On 13 February 2012 he asked the UK Border Agency to reconsider that refusal. No response was received to that request until, over a year later, he received a letter ("the second refusal letter") dated 26 March 2013, in which the UK Border Agency maintained their decision to refuse him leave to remain. On the same date, the UK Border Agency issued removal directions for the removal of the petitioner to Pakistan. Those removal instructions were cancelled when the first order was made in this petition.

[4] The petitioner challenges the refusal of his application for leave to remain in the UK essentially on grounds that that refusal, even if it is justified in terms of the Immigration Rules, is contrary to his article 8 ECHR right to family life.

The application for leave to remain
[5] The petitioner's application on 22 November 2011 was for an extension of his stay in the UK as the spouse of a British citizen. Having described the circumstances in which he met and married his wife, the application letter, written by solicitors acting for him, stated as follows:

"We advise that our client has been residing in the UK since his arrival [i.e. since his arrival in November 2010]. He has settled well and integrated amongst communities having made many friends. He is a law-abiding citizen and has no previous convictions. Wife of applicant is British by birth and has been working in the UK; her family members are also British citizens. The applicant has started well established private and family life in the UK hence; the refusal or ultimate removal would be violation of fundamental rights of applicant and his wife guaranteed under article 8 of ECHR. The refusal and ultimate removal would be disproportionate and would amount to interference with private and family life."

The letter then went on to refer to the cases of Huang v. Secretary of State for the Home Department [2007] 2 AC 167 and Beoku-Betts v. Secretary of State for the Home Department [2009] 1 AC 115.

The first refusal letter and grounds of challenge
[6] The first refusal letter is dated 17 January 2012. It accompanied a notice of decision of the same date intimating the Secretary of State's refusal to grant leave to remain. The notice addresses directly the grounds relied upon in the petitioner's application. It points out that, at the time he applied, the petitioner's visitor visa had expired, that he did not have limited leave to remain in the UK, that he had remained in the UK in breach of immigration laws and that he had married after he had been served with notice of his liability to deportation.

[7] The consideration given by the Secretary of State to article 8 ECHR and its relevance to the petitioner's application is explained in some detail in the first refusal letter itself. Since in argument before me a number of passages in this letter came in for criticism, I should set out the terms of the letter at some length, identifying and commenting on the main criticisms as I go along.

[8] The refusal letter took as its starting point the observation that every state has the right to control the entry of non-nationals into its territory and that article 8 ECHR did not give a person the automatic right to choose to pursue his or her family or private life in the UK. It quoted the following passage from paragraph 20 of the speech of Lord Bingham (delivering the opinion of the committee) in Huang, to the effect that the relevant question for the Secretary of State to consider was:

"... whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8."

The letter correctly acknowledged that, in the much-discussed passage his speech in Razgar v. Secretary of State for the Home Department [2004] 2 AC 368, Lord Bingham was not purporting to lay down a legal test of "exceptionality" but was simply expressing an expectation that the number of claimants entitled to succeed under article 8 would be small. No issue is taken with that. The letter went on to say that the issue of proportionality was to be assessed on the basis of all relevant factors, balancing the rights of the individual with the rights of the wider community and the state. Again, no issue is taken with that.

[9] The refusal letter then went on to say this:

"However, the case law shows that the threshold for finding that a decision to remove is disproportionate is very high."

That statement is criticised in this case. Mr Winter, for the petitioner, says that the case law shows no such thing. On the contrary, it shows that the threshold for such a finding is the ordinary civil standard of balance of probabilities. He relies for this on a passage in Naz (subsisting marriage - standard of proof) Pakistan [2012] UKUT 00040 (IAC) at paragraph 11, where the Upper Tribunal recited, with obvious acceptance, a submission that it was trite that the standard of proof of the primary facts in the entry clearance claims was the ordinary civil balance and that "a similar standard applies in article 8 cases, where the claimant alleges that immigration action interferes with subsisting private or family life"; and at paragraph 13, where despite rejecting the criticism of the judge on this point, the Upper Tribunal clearly accepted that the standard was the ordinary civil standard. That criticism of the higher test apparently adopted in the first refusal letter in this case appears to me to be justified.

[10] The refusal letter then goes on to cite extensively from the speech of Lord Bingham in Razgar, particularly from paragraph 20 of that speech in which Lord Bingham makes the point that decisions taken pursuant to the lawful operation of immigration control "we will be proportionate in all save a small minority of exceptional cases". Despite having earlier acknowledged, correctly, on the basis of Huang (supra), that in this passage Lord Bingham did not purport to lay down a legal test of exceptionality, the refusal letter went on to say this:

"The case of Razgar makes it clear, therefore, that it is only in an exceptional case that the decision to remove an applicant in the course of the lawful operation of immigration control would be disproportionate.

You have put forward no credible documentary evidence to suggest that your client's situation is exceptional, most compelling or compassionate."

This passage was criticised, also with justification. Despite having earlier recognised that exceptionality was not the test, the writer of the letter seems to have proceeded as though it was. While the first sentence might, on a favourable construction, amount to no more than an observation that, as Mr O'Rourke put it, "exceptionality is an outcome" (i.e. that successful proportionality challenges under article 8 will be rare), the second sentence - where the writer clearly states that the petitioner has put forward no relevant credible evidence to meet the exceptionality test - leaves me in no doubt that the writer is adopting the exceptionality test which he has earlier, correctly, disclaimed. I leave aside the expression "most compelling or compassionate" for this purpose, but clearly those words are used in amplification and not dilution of the test of exceptionality.

[11] The letter goes on to say that, in assessing the petitioner's case, consideration has "also" been given to five factors, namely: (i) does your client have a family life in the UK; (ii) if so, will removal interfere with that family life; (iii) would any such interference be in accordance with the law; (iv) would such interference be in pursuit of one of the permissible aims set out under article 8(2) ECHR; and (v) would such interference be proportionate to the permissible aim? It was agreed that those tests were taken from paragraph 17 of Razgar. It is, perhaps, arguable that the use of the word "also" indicates that these five factors were being considered not as a series of stand‑alone questions but in addition to the fact that the petitioner had failed to put forward relevant credible evidence to support an "exceptionality" test, but this may be reading the letter too literally. Probably nothing turns on that.

[12] In answer to the five questions posed, it was accepted, under reference to question (i), that the petitioner may have established his family life in the UK. However, under reference to question (ii), it was asserted in the letter that there would be limited interference with his private and family life as he would be returning to Pakistan: he was aged 39 and would be able to relocate to Pakistan, and any skills he had obtained in the UK could be used to support him in Pakistan. Under reference to question (iii), it was stated that such interference would be in accordance with the (UK domestic) law, which is unobjectionable. Under reference to question (iv), reference was made to the provisions of article 8(2). It was concluded in answer to question (v) that "taking into account the factors addressed above, it is considered that any interference is proportionate". I have to confess that I found the answer to question (ii) to be somewhat curious. That question was, as I understand it, to do with whether article 8 was engaged. Given that it was accepted under reference to question (i) that the petitioner had established a family life in the UK, clearly article 8 was potentially engaged by his removal. The comment about his ability to return to Pakistan was irrelevant to the fact that his removal and potential separation from his wife would, or might, interfere with his family life. It was relevant, if at all, to the balancing exercise required to be made in considering the last issue, proportionality. What is more, no consideration is there given to the question of the petitioner's wife, who was born and bred and lived and worked in the UK, having to re-locate to Pakistan if the family life was to be maintained despite the petitioner's removal there. This matter is considered later in the first refusal letter, but it is curious that the question about proportionality is answered in the affirmative without any reference to it at that stage.

[13] The refusal letter then goes on to say that the petitioner's case has been considered in light of the decision of the House of Lords in Chikwamba v. Secretary of State for the Home Department [2008] 1 WLR 1420. That case is to do with the lawfulness of the policy of requiring people relying upon article 8 to leave the UK so as to make an entry clearance application from abroad. It was held (taking the summary from the headnote) that article 8 appeals should not be dismissed routinely on the basis that it would be proportionate and more appropriate for the applicant to apply for leave from abroad. That case was a case involving Zimbabwe and it was held that to remove the claimant to Zimbabwe, where conditions were harsh and unpalatable, and thereby disrupt her family life, would violate her and her family's article 8 rights in a manner which was not justified by the need for effective immigration control. Thus Lord Brown of Eaton‑under‑Heywood, with whom the other members of the committee agreed, said (at paragraph 44) that "only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad". In the first refusal letter here it is said that it was not considered that the petitioner should benefit from the judgments in that case. That was because, in Chikwamba, the appellant's husband was a national of Zimbabwe and was unable to accompany his wife there. That was obviously a strong case. By contrast, in the present case it was said that:

"... no evidence has been provided to show that by returning to Pakistan your client could not maintain ties with his spouse and friends who continue to reside in the United Kingdom through modern channels of communication. Neither have you provided any evidence that your client's spouse could not accompany him to Pakistan."

There is obviously a distinction between the two cases. Unlike the case of Chikwamba, there is in this case no absolute bar to the petitioner's wife accompanying him to Pakistan. But that does not mean that the observations of Lord Brown at paragraph 44 of his speech can simply be ignored. At paragraph 42 he emphasises that in an article 8 family case "the prospective length and degree of family disruption involved in going abroad for an entry clearance certificate will always be highly relevant." I come back to this point later. But what Lord Brown is saying at paragraph 44 is that the policy of requiring applicants to make their application from abroad should not usually, without more, carry the day and lead to the dismissal of an article 8 appeal made in the UK. It is no answer to this point to say that no evidence has been provided to show that ties cannot be maintained between the petitioner and his wife and friends in different countries through modern means of communication. The assumption that there is no interference with family life because communication can continue from a distance is mistaken: see R (Mansoor) v. Secretary of State for the Home Department [2011] EWHC 832 (Admin) at paragraph 16. Nor is it any answer to say that no evidence has been provided as to why the petitioner's wife could not accompany him to Pakistan. That is no doubt true, but it is irrelevant - it simply reverses the onus laid down very clearly in Chikwamba. There was also discussion in this context of Beoku-Betts (supra) but nothing much seems to turn on that for present purposes.

[14] The question of whether it is reasonable to expect the petitioner's wife to relocate to Pakistan so as to prevent the petitioner's removal having the effect of interfering with his (and her) family life is addressed towards the end of the third page of the refusal letter. This formed a significant part of the attack on the validity of the reasons set out in that refusal letter and I must therefore quote certain paragraphs in full:

"Consideration has also been given to the recent Court of Appeal case of VW (Uganda) and AB (Somalia) v. Secretary of State for the Home Department [2009] Imm AR 436. The Court of Appeal confirmed in this case that when gauging the proportionality of a removal which may break up a family the question is whether it is reasonable to expect the family to leave with the claimant, the test envisaged was one of seriousness which would require the obstacles or difficulties to go beyond matters of choice or inconvenience.

You have not provided any evidence to show that your client's spouse could not accompany him to Pakistan. It is therefore considered that there would be no bar to your client's spouse accompanying him to Pakistan, should that be their choice, where they could continue to exercise their right to a family life. It appears simply that your client's preferred choice would be to remain in the United Kingdom; it is considered that this in itself would be insufficient to argue that your client's removal would be disproportionate.

We note that your client's spouse is 22 years of age. However, we consider that any change in cultural circumstances that your client's spouse may experience by going to live in Pakistan or elsewhere would be comparable to the change in culture that your client experienced following his entry to the United Kingdom. We do not consider that there would be any breach of the human rights of your client's spouse as it is open to her to accompany your client whilst he applies for entry clearance. If she chooses not to accompany your client, any time apart would be at their discretion and will also be for a relatively short period. We therefore do not believe that the short period apart would breach Article 8. In any case, it is open to your client to return with entry clearance to resume whatever family life exists with his family.

While it is accepted that your client may have established family life in the UK it is not accepted that the decision to refuse leave to remain gives rise to any interference with his family life. Your client has not provided any evidence to suggest otherwise. Consideration has also been given to the fact that your client has failed to observe immigration regulations by remaining [in and] entering the United Kingdom unlawfully and further breaching his conditions by taking employment.

Both your client and his spouse would have been aware of his immigration status when they began their relationship and of the possibility that they might not be able to continue the relationship in the United Kingdom. Your client and his spouse should have been aware of the implications this might have on their relationship and their family life. To allow your client to remain here would benefit her over those who comply with the law.

We are aware your client and his spouse do not own property and have no business interests in the United Kingdom.

While it is acknowledged that your client might prefer to live in the United Kingdom with his spouse, the Secretary of State considers that any perceived interference with his right to respect for private and family life under Article 8 is justified for the purpose of maintaining an effective immigration control, is proportionate to that aim, and does not therefore breach his Convention rights.

While it is acknowledged that your client's material quality of life in his own country may not be to the same standard as it would be in the United Kingdom, this is not deemed to be a sufficiently compelling factor to justify granting her leave to remain in the United Kingdom.

We appreciate that your client and his spouse will have made friends in the United Kingdom, however we feel these friendships could be continued from abroad in such forms as telephone calls or letters.

It may be considered that it would be unreasonable to expect your client's spouse to leave her home country and establish a life elsewhere to be with her husband. We consider that it would be no less unreasonable to expect your client to settle in a country other than his own and establish a life elsewhere to be with his wife. This is a situation faced by all couples entering into transnational marriages.

We are aware that visa processing times in Pakistan are that 72% of applications submitted during November 2011 were decided within 40 days and 98% were decided within 60 days, and we consider that any temporary interference with your client's family life while he seeks entry clearance would be proportionate. Nor do we accept that any further application for leave to remain in the UK would automatically succeed. We pay particular attention to the Lord Brown's comments in Chikwamba regarding how immigration history is a relevant factor to be considered when assessing proportionality.

Even accepting that your client has been in the United Kingdom for 15 months since his last claimed entry, in light of his blatant disregard for the immigration laws by remaining illegally, using deception to gain entry and breaching his conditions of entry, it is considered that we are entitled to weigh such factors heavily against him when assessing whether interference with her (sic) family life and the family life of his spouse is proportionate. We have considered the fact that there will be some upheaval should your client and his spouse relocate to Pakistan. However, given the factors considered above and the circumstances of his particular case we are of the opinion that requiring your client to return to Pakistan, thereby interfering with any family life, is a justifiable and proportionate course of action in pursuit of the legitimate aim of effective immigration control.

In view of the above we do not accept that the existence of your client's family or private life in the United Kingdom is a sufficiently compelling reason for making him an exception to the normal practice of removing those who have remained in the United Kingdom unlawfully. Nor is it considered that the decision to proceed with his removal from the United Kingdom would breach Article 8.

Your client and his spouse could settle in Pakistan or, Chikwamba notwithstanding, it is open to him to return to his own country and apply for an entry clearance through the correct channels as the spouse of a person present and settled in the United Kingdom.

Therefore, we consider the decision to proceed with your client's removal from the United Kingdom would not disproportionately interfere with his family or private life and as a result there would be no breach of Article 8."

[15] It is immediately apparent that amongst the points taken on behalf of the Secretary of State in that letter, there are a number which are simply bad. The first and most obvious point is that (in two separate paragraphs) it is suggested that it would be no great hardship for the petitioner's wife to accompany him to Pakistan since this would only be "for a relatively short period". Reference is made to statistics about the time typically spent processing applications made within Pakistan, and it is said that "any temporary interference" with the petitioner's family life while he seeks entry clearance would be proportionate. This ties in with the Chikwamba point which I mentioned earlier. The likelihood of the separation being only temporary and for a short time might be a legitimate point for the Secretary of State to make, but only if it was accepted that an application made from Pakistan would succeed, since it is only on that basis that the point has any substance. Were it otherwise, the petitioner's wife's stay in Pakistan with the petitioner would be prolonged, or she would return to the United Kingdom without him and their family life would be disrupted. But then, in the same breath, as the point is made about the separation being for a short period, it is said that it is by no means certain that an application made from Pakistan for him to remain in the UK would automatically succeed. Reasons are then given for saying why the application might fail, with a recital of his alleged "blatant disregard for the immigration laws", his "deception to gain entry" and his "breaching his conditions of entry". Those may be entirely legitimate points and the conclusion from those points might be that an application made from Pakistan would be refused. But if that is the case, it is disingenuous and misleading to argue that his removal from the UK and his wife's enforced relocation to Pakistan would be for only a short period, or should be judged on the basis that it would be for only a short period. If the application from Pakistan were to be refused, the petitioner's wife would be put in the same position as if the application from within the UK were refused. Any consideration of the merits or otherwise of a short temporary relocation is thus irrelevant.

[16] Further, in one paragraph quoted above, consideration of the reasonableness of expecting the petitioner's wife to re locate to Pakistan is balanced by the assertion that "it would be no less unreasonable to expect your client to settle in a country other than his own and establish a life elsewhere to be with his wife." If this is intended as part of the exercise of striking the appropriate balance, it is misguided. There is no question of "expecting" the petitioner to settle in the UK against his will. He wishes to settle in the UK, and feels comfortable in the UK having lived here on and off for over six years. It may well be that that will not and should not carry the day, but that is quite different from setting up a balancing exercise on a false premise.

[17] That is not to say that other, potentially better, reasons are not put forward. The letter refers to the petitioner's breach of immigration rules (by remaining in the UK after his visa had expired and working in the UK in breach of his tourist visa conditions and after his visa had expired); to the fact that the petitioner and his wife developed their relationship after expiry of his visa and got married at a time when he had been served with notice of intended removal and therefore his immigration status was precarious; and to the lack of any evidence of any difficulty about the petitioner's wife moving with him to Pakistan. These are matters which I shall consider in more detail later. However, I should express my grave reservations about the quality of decision-making in the first refusal letter having regard to the combined effect of the various points of criticism which I have attempted to summarise. Had matters stopped at this point, then notwithstanding the possibility that the Secretary of State might have been entitled to come to the same decision for justifiable reasons, I would have been concerned that the actual decision reached was so affected by a misguided approach - the apparent adoption of the wrong test and the taking into account of irrelevant considerations - that I would have felt bound to send it back for reconsideration.

[18] However, the matter does not stop there. By letter dated 13 February 2012 the petitioner asked for a review of that earlier refusal; and new Immigration Rules came into force.

The new Immigration Rules
[19] New Immigration Rules came into force on 9 July 2012, after the first refusal letter and after the petitioner's letter seeking a review of that refusal. The constitutional status of these rules was considered in R (Munir) v Home Secretary [2012] 1 WLR 2192 at paragraphs 37 - 39, MS v. Secretary of State for the Home Department [2013] CSIH 52 at paragraphs [19] - [22] and Izuazu (Article 8 - new rules) [2013] UKUT 00045 at paragraphs 30 - 51. The Immigration Rules are a statement by the Home Secretary as to how her powers under section 3 of the Immigration Act 1971 will be exercised. They may be relied on by applicants for entry to all leave to remain in the UK. However, the application of the rules in individual cases is subject to the requirements of the ECHR. I was told that they are constantly updated with a view to ensuring, so far as possible, compliance with the ECHR. Article 8 is obviously of particular significance in this case.

[20] The effect of this in the context of an application for judicial review of a decision by the Secretary of State to refuse permission to enter or to remain in the UK on article 8 grounds is helpfully summarised in paragraphs 40 - 43 of the decision of the Upper Tribunal (including the President, Blake J, and Lord Bannatyne) in Izuazu:

"40. ... judges called on to make decisions about the application of Article 8 in cases to which the new rules apply, and should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. If he or she does, there will be no need to go on to consider Article 8 generally. The appeal can be allowed because the decision is not in accordance with the rules.

41. Where the claimant does not meet the requirements of the rules it will be necessary for the judge to go on to make an assessment of Article 8 applying the criteria established by law.

42. When considering whether the immigration decision is a justified interference with the right to family and/or private life, the provisions of the rules or other relevant statement of policy may again re-enter the debate but this time as part of the proportionality evaluation. Here the judge will be asking whether the interference was a proportionate means of achieving the legitimate aim in question and a fair balance as to the competing interests.

43. The weight to be attached to any reason for rejection of the human rights claim indicated by particular provisions of the rules will depend both on the particular facts found by the judge in the case in hand and the extent that the rules themselves reflect criteria approved in the previous case law of the Human Rights Court at Strasbourg and the higher courts in the United Kingdom."

Those remarks were approved by Sales J in R (Onkarsinghe Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) and by the Inner House in MS v. Secretary of State for the Home Department [2013] CSIH 52, with this gloss, that if the court considering the application in terms of the Immigration Rules forms the view that on the matters in question the Rules have fully addressed any family life or private life issues arising under article 8, it would be sufficient simply to say that rather than having to go on fully and separately to consider the challenge under article 8. In other words, it is only where it appears to the court that there is an arguable case that the consideration given to the application under the Immigration Rules did not address one or more of the issues on which the applicant seeks to rely in a manner consistent with the obligations assumed by the UK under article 8 that it is necessary to go further and consider in full an article 8 challenge.

[21] It is not necessary to set out the new Immigration Rules in any detail for the purpose of this opinion. One of the rules, rule 284, a set out the requirements for an extension of stay as the spouse or civil partner of a person present and settled in the UK. One of those requirements, in paragraph (iv), was that the applicant had not remained in the UK in breach of the immigration laws, disregarding any period of overstaying for 28 days or less. There are new moderated exceptions allowing applications to succeed notwithstanding that the essential requirements are not met. One of these, brought in by paragraph EX.1 of Section EX, covers the case of an applicant who has a genuine and subsisting relationship with a partner who is a British citizen and settled in the UK "and there are insurmountable obstacles to family life with that partner continuing outside the UK". However, the details do not matter for the purpose of considering this petition, since it is not in dispute that the basis of the second refusal letter was one which was justified in accordance with the Immigration Rules. The only dispute concerns whether the refusal is consistent with the petitioner's article 8 rights.

The second refusal letter
[22] The petitioner's request for a reconsideration of the decision to refuse his application was refused by the Secretary of State by letter dated 26 March 2013. The relevant paragraphs of that (second refusal) letter read as follows:

"The decision to refuse your application for leave to remain and consideration under Article 8 of the Human Rights Act was correct. However as a result of the changes to the Immigration Rules which came into effect on 9 July 2012, any family life claim will now be given consideration under Appendix FM and private life is considered under paragraph 276ADE. Therefore the information submitted with your application of 22 November 2011 has now been assessed against Appendix FM and paragraph 276ADE.

The family life that you have raised ... is that of your spouse. There are no insurmountable obstacles to you and your spouse continuing your family life together in Pakistan. Your spouse has always known of your immigration status therefore they have been fully aware that they may not be allowed to continue their family life with you in the United Kingdom. This decision does not alter that expectation. In addition you can support your wife in her adjustment to life [in] Pakistan. While it is noted that your wife will have to cease employment in the United Kingdom there is nothing to prevent them [from] seeking work in Pakistan should they so wish. As family life can continue in Pakistan you cannot meet the requirements of Appendix FM."

The letter went on to consider the application based on private, as opposed to family, life and pointed out that the petitioner did not meet the requirements of paragraph 276ADE of the Immigration Rules. I was told by Mr Winter that this separate ground for the application, i.e. private as opposed to family life, is no longer insisted upon.

[23] It is not contended that the Secretary of State's assessment of the petitioner's application in this second refusal letter has in some way misinterpreted or misapplied the new Immigration Rules. Far from it - the new Immigration Rules specifically set out an "insurmountable obstacles" test. What is said, however, is that the Secretary of State has erred by failing to go on and consider the general proportionality of the decision having regard to the petitioner's article 8 rights. The case law on article 8 remained relevant. The statement that there are no "insurmountable obstacles" to the petitioner and his wife continuing their family relationship in Pakistan shows that the Secretary of State has fallen into error. That forms no part of the applicable test under article 8. The correct question is simply whether it is reasonable in all the circumstances for the petitioner and his wife to have to relocate to Pakistan in order to preserve their family life. It is said, too, that the Secretary of State did not consider the petitioner's wife's rights in this context. As an EU citizen, she cannot properly be expected to relocate to Pakistan where she would lose the benefits of her EU citizenship. Reference was made to MF (Article 8 - new rules) Nigeria [2012] UKUT 00393 (IAC), Sanade and others (British children-Zambrano-Dereci) [2012] UKUT 00048 (IAC) and MS v Secretary of State for the Home Department (supra).

[24] The starting point for any consideration of the petitioner's case should, in my opinion, be the second refusal letter. That is not to say that the first refusal letter will always be irrelevant, particularly if all or part of its reasoning is expressly or impliedly incorporated by reference into the second decision. But the starting point must be that second decision, particularly in a case such as the present where new Immigration Rules came into force after the date of the first refusal letter and where the application for reconsideration of the initial refusal was judged against the tests laid down in those new Immigration Rules.

[25] The second refusal letter appears to me to reveal two separate though related strands underlying the decision to refuse the petitioner's application. The first is that there are "no insurmountable obstacles" in the way of the petitioner and his wife continuing their family life together in Pakistan. The second is that when they met, developed their relationship and got married, both the petitioner and his wife knew that his immigration status in the UK was precarious, so that they could have had no reasonable expectation of being allowed to continue their family life together in the UK. I propose to consider the "insurmountable obstacle" question first.

[26] Mr Winter, for the petitioner, submitted that the "insurmountable obstacle" test was wrong in law. While, as he accepted, it was certainly the test set out in paragraph EX.1 of Section EX of the new Immigration Rules, it did not reflect the proper approach under article 8 ECHR. He referred me in this connection to AB (Jamaica) v. Secretary of State for the Hope Department [2008] 1 WLR 1893, VW (Uganda) v. Secretary of State for the Home Department [2009] Imm AR 436, R (Mansoor) v. Secretary of State for the Home Department [2011] EWHC 832 (Admin), Sanade and others (British children-Zambrano-Dereci) (supra), MS v. Secretary of State for the Home Department (supra), Izuazu (Article 8 - new rules) [2013] UKUT 00045 (IAC), R (Onkarsinghe Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) and MF (Nigeria) v. Secretary of State for the Home Department [2013] EWCA Civ 1192.

[27] I do not propose to set out all the passages relied upon in these cases. It is convenient to pick up the summary of the law given by the Upper Tribunal in Izuazu. In that case the Secretary of State rejected the applicant's claim because the test of "insurmountable obstacles" was not met. At paragraph 53 of the decision in Izuazu, the Upper Tribunal stated clearly that to reject a claim under article 8 because the test of insurmountable obstacles will not met "is to fail to comply with the principles of the established law". The Upper Tribunal went on to say this at paragraph 56:

"56. We acknowledge that in a number of Strasbourg decisions, different sections of the European Court of Human Rights have stressed that where initial entry has been unlawful or whether family life has been established at a time where status was precarious, it will only be exceptionally or where there are insurmountable obstacles to the family life being transferred abroad that removal would be violation. We note that there is, therefore, some tension between those cases where these criteria are used in some of the decisions of senior courts in the United Kingdom. However, whereas the Strasbourg Court refers to this being one of several factors to consider ... [the new Immigration Rules] imposes a test that has to be met for leave to be granted. This turns a factor in the case into a minimum requirement to be always met. We do not read the Strasbourg cases as doing this."

The Upper Tribunal went on at paragraph 57 to refer to the decision of the Grand Chamber in Boultif v Switzerland [2001] ECHR 479, which emphasises that it was, in the Upper Tribunal's words, "the degree of difficulty the couple faced rather than the 'surmountability' of the obstacle that is the focus of judicial assessment but again as a factor rather than a test". The Upper Tribunal went on to say this at paragraphs 58 - 59:

"58. It has been repeatedly stated in national jurisprudence laid down by the higher courts in the UK that in none of these cases was Strasbourg laying down a test for engagement of Article 8 as opposed to reaching a decision on proportionality in the particular case. The requirement for exceptional circumstances or insurmountable obstacles has been authoritatively declared to be an erroneous one in the Article 8 immigration context by the House of Lords in Huang [2007] UKHL 11 at [20], EB Kosovo [2008] UKHL 41 at [8] [12] [18] [20] [21] and by the Court of Appeal on innumerable occasions including LM (DRC) [2008] EWCA Civ 325 at [11] and [13]; VW (Uganda) [2009] EWCA 5 at [19] and [24]; JO Uganda [2010] EWCA Civ 10 at [14] to [15] and [23] to [26].

59. Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these decisions are binding on the Upper Tribunal and will be followed by it."

It goes without saying that those decisions will also be followed by a court of first instance in Scotland.

[28] MF (Nigeria) v. Secretary of State for the Home Department [2013] EWCA Civ 1192 was a deportation case. It was conceded on behalf of the Secretary of State before the Upper Tribunal that it would not be "a reasonable option" for the applicant's wife and stepdaughter to relocate to Nigeria with the applicant and that there were "insurmountable obstacles" to family life with them continuing outside the UK. The argument was whether this should be allowed to stand in the way of the decision to deport MF. But the observations of the Court of Appeal on the meaning of "insurmountable obstacles" and the effect to be given to that test at paragraph 49 of the judgement is of some relevance here:

"49. In view of the concession made before the UT, the question of the meaning of "insurmountable obstacles" does not arise. We did, however, hear argument on the point. We would observe that, if "insurmountable" obstacles are literally obstacles which it is impossible to surmount, their scope is very limited indeed. We shall confine ourselves to saying that we inclined to the view that, for the reasons stated in detail by the UT in Izuazu at Paras 53 to 59, such a stringent approach would be contrary to article 8."

There is nothing in the other case law to which I was referred to suggest that a contrary view has been adopted by the courts in Scotland or England.

[29] In my opinion, in the second refusal letter sent on her behalf, the Secretary of State has clearly fallen into error in rejecting the petitioner's application on the basis that there are no "insurmountable obstacles" to him and his spouse continuing their family life together in Pakistan. The relevant paragraph of the refusal letter, which I have quoted in paragraph [22] above, make it clear that the writer of the letter is not simply using the words "insurmountable obstacles" as a loose shorthand for something to be taken into account but is applying that as a substantive test. That is clear from the fact that the letter does not go on to assess issues of proportionality. The "insurmountable obstacles" test is treated as a minimum requirement, not as one of the factors to be taken into account in assessing proportionality. It is true that there is a reference also to the fact that the petitioner and his spouse have always known that his immigration status was precarious, a factor which might well be relevant in a proportionality assessment, but that is not followed by any attempt to make the assessment.

[30] It follows that I should reduce the decision of the Secretary of State contained in the second refusal letter. For the avoidance of doubt, it seems to me that I should also reduce the first refusal letter which, as I have attempted to show, is unsound for a number of reasons.

[31] Before leaving this case, however, I should comment on one matter which was discussed in argument under reference to the decision of the Upper Tribunal in Sanade and others (British children-Zambrano-Dereci) (supra). That was a judgement in three conjoined deportation cases. The particular facts do not matter, but it is sufficient to say that the claimant in each case had been found guilty of a serious criminal offence, variously indecent assault, supply of drugs and possession of drugs with intent to supply. Before turning to the facts of the individual cases, the Upper Tribunal discussed in considerable detail the applicable principles, albeit it must be emphasised in a deportation case and in a case which involved potential separation from children as well as from a spouse. In its decision, the Upper Tribunal, in addition to considering article 8 ECHR, directed its attention to the application of article 20 of the Treaty on the Functioning of the European Union ("TFEU") and to the cases of Zambrano (Case C - 34/09) and Dereci (Case C - 256/11). The argument, based on those cases, was, in effect, that article 20 TFEU precluded national measures which had the effect of depriving citizens of the EU of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens; and that a refusal to grant a right of residence to a person with dependent minor children and/or a spouse in the member state, where those children and/or the spouse are nationals of the member state and reside there, and where as a consequence of that refusal those children and/or that spouse would have to leave the EU, has such an effect. In answer to the Tribunal's request for clarification, Mr Devereux, for the Secretary of State, made this submission, which is recorded in paragraph [94] of the Decision:

"We do accept, however, that in a case where a third country national is unable to claim a right to reside on the basis set out above it will not logically be possible, when assessing the compatibility of their removal or deportation with the ECHR to argue that any interference with Article 8 rights could be avoided by the family unit moving to a country which is outside of the EU."

The Upper Tribunal dealt with this point in paragraph [95] in the following terms:

"[95] We shall take this helpful submission into account when we consider the application of Article 82 each appellant's case. We agree with it. This means that where the child or indeed the remaining spouse is a British citizen and therefore a citizen of the European Union, it is not possible to require them to relocate outside of the European Union or to submit that it would be reasonable for them to do so. The case serves to emphasise the importance of nationality already identified in the decision of the Supreme Court in ZH (Tanzania). If interference with the family life is to be justified, it can only be on the basis that the conduct of the person to be removed gives rise to considerations of such weight as to justify separation."

The word "separation" is, I think, used advisedly. It contemplates that because the rights of an EU national child or spouse are protected by article 20 TFEU, and they cannot therefore be required to leave the EU as a means of maintaining family life, it must be recognised that a consequence of a decision to deport (or to refuse an application for entry or residence) where the children or spouse are EU nationals living in the UK, will not simply involve a balancing of whether it would be reasonable in all the circumstances to expect the children or spouse to join the other person abroad but may involve a consideration of whether the reasons for removal or refusal of entry are so compelling as to lead to an acceptance that, since the EU family cannot be expected to relocate, there will be a separation and the family unit will be broken. To put it another way, the fact that the children or the spouse are EU nationals living in the UK and therefore cannot be removed from the EU is, at the very least, an additional and weighty factor to be thrown into the balance when considering the article 8 ECHR question of proportionality. Nationality and length of residence in the UK are, of course, already factors which fall to be taken into account in the assessment of proportionality - but this may add additional weight to those factors.

[32] At the end of the hearing I asked for further submissions on this issue which, at that point, I thought might be necessary for me to consider. I am grateful to parties for the written submissions which they sent to me. I was referred to the following cases in which Sanade had been considered: Harrison v. Secretary of State for the Home Department [2012] EWCA Civ 1736 (a decision on appeal from Sanarde); RS v Secretary of State for the Home Department [2012] UKUT 00218 (IAC); SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550; Nimako-Boateng (aka Holm) & IA v Secretary of State for the Home Department [2012] UKUT 00216 (IAC); R (Sanneh) v Secretary of State for the Home Department [2013] EWHC 793; and Ogundimu (Article 8 new rules: Nigeria) UKUT 60 (IAC). Since I have decided to grant the petition and reduce the two refusal letters on other grounds, I do not think it would be helpful to attempt any considered assessment of these cases. Suffice it to say that they tend to suggest that unless an EU national is forced to leave the EU, then EU law is not engaged and the merits of the article 8 application require to be dealt with on their own. For my part, I can see a potential overlap if the effect of removal or of refusing entry would be to present the applicant's family with a stark choice between, on the one hand, leaving the EU (and losing the enjoyment of EU substantive rights) so as to maintain the integrity of the family as a unit and, on the other, remaining in the EU and breaking up the family. But Mr Winter, for the petitioner in the present case, made it clear that he was not founding upon any EU law rights to any extent. In those circumstances I propose to say nothing further about this issue.

[33] For the reasons set out above, I shall grant the petition and reduce the two refusal letters dated 17 January 2012 and 26 March 2013. The effect of this will simply be to require the Secretary of State to reconsider the petitioner's application.