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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Abdelghani, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1227 (Admin) (26 May 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/1227.html Cite as: [2010] EWHC 1227 (Admin)

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IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th May 2010

Miss Geraldine Andrews QC:

1. This claim for judicial review concerns two decisions of the Defendant to refuse to allow the Claimant indefinite leave to remain ("ILR") in the

United Kingdom. It raises some interesting issues, the resolution of which could potentially have significant wider repercussions.

The factual background

2. The Claimant is an Egyptian national. He entered the UK on 4^th September 2000 on a six months' single entry visitor's visa, but when it expired he overstayed. In January 2002, he met a lady named Rakia Ahmed, a British citizen of Burmese origin who had settled in the UK in 1992. In March 2002 he moved in to the same address, and in September that year they went through an Islamic wedding ceremony and began to live together as man and wife. They were married in a civil ceremony on 26^th June 2003. Sadly, Mrs Ahmed suffers from a number of serious long-term physical and mental health problems. Her husband is her main carer, and it is clear from the medical evidence that was presented to the Defendant (and is now before the Court) that she would not be able to cope were he to be absent from home for any significant period of time.
3. On 18^th May 2004, the Claimant's then solicitors applied to the Defendant for leave to stay in the UK as the spouse of a person present and settled in the UK. The application stated in terms that it was made outside the immigration rules "as our client does not have the necessary entry clearance as a spouse".
4. That concession was rightly made. The Claimant could not have been granted leave to enter as a spouse within the immigration rules, as he plainly did not meet all the requirements of the rules. Entry as a spouse or civil partner of a person present and settled in the UK is governed by paragraph 281 of the Immigration Rules (HC 395). That paragraph sets out a number of substantive requirements for an applicant who is married to a person present and settled in the UK. I need not set them out verbatim, but they include requirements as to the genuineness of the marital relationship, the availability of accommodation, and the ability of the applicant to maintain himself and any dependants adequately, without resource to public funds. Finally, paragraph 281(b)(vi) sets out a procedural requirement, namely that

"the applicant holds a valid United Kingdom entry clearance for entry in this capacity" (emphasis added).

5. In practice, an applicant who has satisfied the relevant entry clearance officer that he meets all the substantive requirements of the rule will be given entry clearance and obtain what might be described in shorthand as a "spouse" visa. That visa, once granted, will serve as proof that he meets the substantive requirements. However, he must make his application for entry clearance as a spouse from outside the UK – a visa held under some other rule will not suffice. Therefore, even if he fulfilled all the substantive requirements of paragraph 281, the Claimant could not fulfil the procedural requirement because at the time when he made his application he had no valid "spouse" visa, and in order to obtain the visa he would have had to go back to Egypt and apply from there.
6. The Claimant's application in May 2004 was accompanied by a completed form FLR(M), which is the same form that would have to be used for an application made within the immigration rules, and a number of supporting documents. These included the couple's marriage certificates (both civil and Islamic), their original passports, a certified copy of the tenancy agreement for the housing association accommodation that they occupied, and a letter from London Telecon Limited which supported the contention that the Claimant would be able to do some work as well as care for his wife. There was also evidence of Mrs Ahmed's medical condition, to which I have already referred. These documents were plainly intended to satisfy the officer dealing with the application on behalf of the Defendant that the substantive requirements of the rules were met, and that this was a case in which it would be a disproportionate interference with the Claimant's Article 8 rights to require him to apply for entry clearance from outside the UK because of his wife's serious medical condition and her dependency on him.
7. It took the Home Office an unacceptably long time to decide what to do about the application, and it was only after the intervention of the couple's MP that a decision was finally forthcoming on 8^th February 2005. The decision letter was headed "Discretionary Grant of Leave to Remain". It continued as follows:

"Your application has been considered and it has been decided that the

Secretary of State's discretion should be exercised in your favour. You have been granted limited leave to remain in the United Kingdom, for a reason not covered by the Immigration Rules, until 8 February 2007.

You have been granted this leave in accordance with the published Home Office Asylum Policy Instruction on Discretionary leave, on the basis of your marriage to Rakia Ahmed" (emphasis added).

8. An internal instruction document disclosed by the Defendant concerning the formal grant of leave described the Case Type (type of permit) in these terms "Spouses under para 227-292 – LTR". The formal grant of leave states "Limited Leave to Remain". However, the fact that a case worker within the Home Office may have used the relevant paragraphs of HC 395 dealing with entry as a spouse or civil partner as a convenient shorthand on an internal form to describe the type of case with which the Claimant's application was concerned, does not mean that leave was granted within the Immigration Rules. On the contrary, as the decision letter made clear, leave was granted as a matter of discretion in accordance with the relevant Asylum Policy Instruction, to which I will refer in more detail shortly.
9. Before that first period of discretionary leave expired, the Claimant's solicitors made an application on his behalf for the Defendant to exercise his discretion to grant the Claimant indefinite leave to remain in the UK. In their letter dated 2^nd February 2007 the solicitors again acknowledged that the application was made outside the Immigration Rules. They pointed out that Mrs Ahmed's condition precluded the Claimant from applying for a visa as her spouse.
10. The decision that was made on that application, on 12^th February 2007, refused the Claimant ILR, but granted him a further period of 2 years' discretionary leave. The reason given for refusing the application for ILR was that "the Secretary of State is not satisfied that you have completed a period of 2 years within the Immigration Rules as the spouse of a person settled here" (emphasis added). A covering letter from the Home Office explained that, if appropriate, the Claimant would need to make a further application before that period of leave expired which, if successful, would lead to a further 2 years' discretionary leave to remain being granted (totalling 6 years) after which he would be eligible to apply for settlement.
11. The reason for this was that the Defendant's stated policy in cases such as the Claimant's was and is that

"A person will not become eligible for consideration for settlement until they have completed six years of Discretionary leave".

That policy is set out in the Asylum Policy Instruction ("API") entitled "Discretionary Leave", which despite its name covers both asylum and non-asylum cases.

12. The introduction to the API makes it clear that Discretionary Leave may be granted only in circumstances where the case falls within one of the limited categories set out therein, and that it is intended to be used sparingly. Under the heading "Criteria for Granting Discretionary Leave" the API expressly recognizes a category of case where the return of an individual would involve a breach of Article 8 of the European Convention of Human Rights (right to respect for private and family life) on the basis of family life established in the UK. In such cases, the API provides that discretionary leave should be granted for an initial period and then extended after review for a further limited period if the circumstances remain the same.
13. At the time of the Claimant's initial application in 2004, the standard initial period of discretionary leave granted to those with "marriage-based article 8 claims" was 2 years, but in April 2005 it was extended to three years to bring this category into line with other discretionary leave grants made on the basis of Article 8 ECHR. The API allows for shorter periods of discretionary leave to be granted if the Article 8 factors leading to the discretionary leave are going to be short-lived. I note that the notice that brought the change in the standard period into effect states in paragraph 6

"Where the person continues to qualify for Discretionary Leave at the end of the initial three-year period they should be granted a further three years. On completion of six years Discretionary Leave they will be eligible to apply for indefinite leave to remain (ILR)."

Persons who, like the Claimant, were granted 2 years' leave under the pre-existing regime would still be granted two further two-year periods until they were eligible for ILR on completion of six years (paragraph 8 of the notice).

14. The part of the API dealing with Article 8 claims expressly provides that

"this category applies to both asylum and non-asylum cases. In non-asylum cases it is most likely to arise in the context of a marriage or civil partnership application where, although the requirements of the Rules are not met (e.g. because the correct entry clearance is not held) there are genuine Article 8 reasons which would make return inappropriate"

(emphasis added). The Claimant's case fell squarely within the example given in the API, since he did not hold the correct entry clearance but in order to obtain entry clearance as a spouse he would have had to return to Egypt and make his application there, and there were genuine Article 8 reasons which would make that inappropriate.

15. In making the decision in 2004 to grant him discretionary leave it was expressly accepted by the officer acting on behalf of the Defendant that requiring him to meet that procedural requirement would have been a disproportionate interference with his rights under Article 8 ECHR. That decision was clearly justified in the circumstances and, as the situation had not changed two years later, and still has not changed, there remains justification for continuing the Claimant's leave to remain in the UK as a matter of discretion.
16. What the Claimant complains about, however, is that he was and is being treated less favourably than someone who has fulfilled all the criteria in Paragraph 281 of the Immigration Rules. He argues that such discrimination is unfair and irrational. A person who satisfied the substantive and procedural requirements of Paragraph 281 would be entitled under the Rules to ILR after only two years of living with his spouse in the UK, provided that his circumstances had not changed in the meantime. However, someone who satisfied all the substantive requirements of Paragraph 281 but who could not, and the Defendant had expressly accepted should not be required to satisfy the procedural requirement, because it would interfere with his Article 8 rights, would have to wait under the API for six years before being put on an equal footing, even if his circumstances had not changed. Although Ms Hoskins for the Defendant disputed this as a matter of fact, the Claimant's case is that he falls within the latter category and that his application was treated by the Home Office on that footing.
17. Following the decision to grant a second period of 2 years' discretionary leave, in line with the API, the Claimant's solicitors investigated how practicable it would be for the Claimant to return to Egypt and make an application for entry clearance as a spouse from there. Although the British Embassy in Cairo indicated it would only take 2-3 weeks for him to get an interview, their investigations revealed that the decision itself could take much longer – some 3 to 6 months. The medical condition of the Claimant's wife and her dependency upon him as her carer meant that he could not have left her on her own for anything like that length of time. His solicitors therefore wrote another letter to the Home Office on 29^th March 2007. This time they said "when he applied for his first visa he was granted a marriage visa outside immigration rules, when he should actually have been granted a spousal visa inside immigration rules, as other people in the same situation have been given the normal spousal visa. As a result he believes his application for residency will take far longer than it should have."
18. The response from the Home Office referred to and confirmed the earlier decisions made in February 2007, and stated that the writer was not in a position to advise the solicitors on what course of action their client should take.
19. In February 2008 the Claimant's solicitors made a further application, this time for an extension of stay. They sought a variation of his existing leave to that of a spouse. Evidence was produced to show that Mrs Ahmed's condition had degenerated and was long term. This time the solicitors sought to argue that the original grant of discretionary leave in 2004 had in fact been granted pursuant to the Immigration Rules, in reliance on Paragraph 2 of the Rules which states that "all staff of the Home Office Immigration and Nationality Directorate will carry out their duties... in compliance with the provisions of the Human Rights Act 1998". They argued that this led to the discretionary leave being characterised as "leave to remain which is given in accordance with the provisions of the Immigration Rules", thus satisfying the requirements of Paragraph 284 of the Rules.
20. This provides that:

"The requirements for an extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom are that:

The applicant has limited leave to enter or remain in the United Kingdom which was given in accordance with any of the provisions of these Rules, other than where as a result of that leave he would not have been in the United Kingdom beyond 6 months from the date on which he was admitted to the United Kingdom on this occasion in accordance with these Rules, unless the leave in question is limited leave to enter as a fiancé or proposed civil partner."

21. The solicitors' argument did not find favour with the Home Office and on 17^th March 2008 a letter was written in response refusing the application and pointing out (correctly) that the Claimant's limited leave to enter was not given "in accordance with the provisions of these Rules" because his leave was granted outside the Immigration Rules. As the Claimant still had valid leave which did not expire until 8 February 2009, there was no right of appeal against that decision.
22. On 30th January 2009 the Claimant's solicitors made a further two applications, which gave rise to the decisions under review in this action. The primary application was for ILR, with a fall-back application for limited leave to remain if ILR was refused. In the first of the decisions which is the subject of the present claim for Judicial Review, conveyed in a letter dated 12^th May 2009, the application for ILR was refused, but the Claimant was granted a third period of discretionary leave to remain until 12^th May 2011, again in accordance with the policy set out in the API.
23. At this point, the Claimant changed his solicitors and on 15^th July 2009 the new firm, Fisher Meredith, wrote a judicial review letter before action to the UK Border Agency requesting a review of that decision on the basis that the Claimant " met the criteria for indefinite leave to remain and that is what he should have been granted". In essence, they submitted that he met all the substantive requirements under paragraph 281 of the Immigration Rules, and that because the Defendant had determined that it would infringe his Article 8 rights to require him to comply with the procedural requirement of entry clearance, he should be treated as if he had done so or as if that procedural requirement had been waived. Reference was made to Article 14 ECHR, which when read with Article 8 requires that where the Defendant acts in the field of private and family life, like cases are treated alike.
24. The Defendant responded promptly, with a letter conveying the second decision under challenge, which confirmed the first decision and repeated the reasons for it. Paragraph 287 of the Immigration Rules is the paragraph setting out the requirements for ILR for the spouse or civil partner of a person present and settled in the UK. The decision letter pointed out that by subparagraph (a)(i)(a) of Paragraph 287 of HC 395, the applicant must either have been admitted to the UK for a period not exceeding 27 months or given an extension of stay for a period of 2 years in accordance with paragraphs 281 to 286 of these Rules and must have completed a period of 2 years as the spouse or civil partner of a person present and settled in the UK.
25. The second decision letter, dated 17^th July 2009, stated (correctly) that the Claimant was not given "an extension of stay for a period of 2 years in accordance with paragraphs 281 to 286" as required by paragraph 287. This was because the original decision granting the Claimant discretionary leave was made outside the Immigration Rules. He therefore did not qualify for ILR under paragraph 287.
26. The decision letter pointed out that at the end of the Claimant's current period of discretionary leave he would be entitled, in accordance with the API, to apply for indefinite leave to remain because then he would have completed six years' discretionary leave. The letter went on to explain why ILR was not being granted:

"At the time your client made his original application for leave to remain on the basis of his marriage he had overstayed in the United Kingdom and had no valid leave. He therefore did not meet the requirements of the Rules for leave to be granted in this category and his application fell for refusal. However in the light of the exceptional compassionate circumstances and Human Rights issues involved in your client's case, it was decided that leave should be granted on a discretionary outside the Rules basis. As the Secretary of State was satisfied that your client's circumstances have not significantly changed since the initial grant of discretionary leave, he has chosen to exercise further discretion and grant another period of discretionary leave. These periods of leave were granted on a purely outside the Rules basis and should not be considered as waiving any requirements of the Immigration Rules relating to leave on the basis of marriage."

27. I note that the person who wrote this letter did not suggest that the Claimant failed to meet the requirements of the Rules for any reason other than the fact that he had no valid leave or entry clearance as a spouse at the time of his initial application. Apart from the denial that there has been any waiver of the requirements of the Rules, the letter fails to address any of the legal arguments raised by the Claimant's solicitors. In particular it appears that the person exercising the discretion on behalf of the Secretary of State did not apply his mind to the question whether the six - year period set out in the API should be relaxed or curtailed in the present case in order to give the Claimant parity of treatment with someone who had obtained entry clearance as a spouse.
28. As Ms Hoskins pointed out, the fact that the Claimant only has discretionary leave to remain does not place him under any disadvantage in terms of being able to work or travel or claim state benefits. His Article 8 rights are not impaired. In May 2011, which is only a year from now, he will be able to apply for indefinite leave (termed "settlement") and if his circumstances do not alter in the interim, that application will be successful. Apart from the fact that his case will be reviewed again next year, he is no worse off in practical terms than someone who has been granted ILR.
29. However, the fact that someone may find themselves in the same position in just over a year's time as they say they should have been in 2006 or 2009 would be no reason to refuse them judicial review if they can substantiate their claim, and the decision to limit their leave to remain in this country was unlawful. The medical evidence makes it clear that, however strong the likelihood that in May 2011 the Claimant will finally get indefinite leave, the current uncertainty over his immigration status is contributing significantly to his wife's mental health problems. There is a genuine reason for the Claimant to try to get the matter resolved through the Courts now, instead of resigning himself to waiting until next year.

The application for Judicial Review

30. In section 6 of the Judicial Review Claim Form the Claimant sought the following remedies:

i) A declaration that the Claimant meets the requirements of Paragraph 287(a)(i) of the Rules;

ii) Alternatively a declaration that that Paragraph is ultra vires or an order quashing it;

iii) A declaration that the API entitled "Discretionary Leave" contains

Rules within the meaning of sub-section 1(4) and section 3(2) of the Immigration Act 1971;

iv) A declaration that the Defendant's failure to lay before Parliament a statement of the rules contained in the said API is a breach of s.3(2) of the Immigration Act

v) An order quashing the decisions of the Defendant not to grant the Claimant ILR;

vi) A mandatory order directing the Defendant to grant the Claimant indefinite leave to remain in the UK alternatively to consider afresh and according to law his application for such leave;

vii) Further or other relief.

31. In the course of his submissions, however, Mr Cox made it clear that the Claimant was no longer seeking a mandatory order directing the Defendant to grant the Claimant ILR. He conceded that if the decisions complained about were quashed, the matter would have to go back for reconsideration, and the Defendant's discretion would have to be exercised afresh.
32. In support of the Claimant's application, Mr Cox concentrated on three arguments: the argument that the Claimant's case met the requirements of Para 287 of HC 395 on its true construction; alternatively if on its true construction Paragraph 287 does require compliance with the procedural as well as the substantive requirements of Paragraphs 281 it is irrational and therefore unlawful; and the discrete argument that the API is a "rule" that ought to have been laid before Parliament pursuant to s.3(2) of the Immigration Act 1971. I shall refer to these arguments respectively as the construction argument, the irrationality argument and the s.3(2) argument. As the construction and irrationality arguments are so closely interrelated, I shall consider them together.

The construction and irrationality arguments.

33. Mr Cox submitted that paragraph 287 of the Immigration Rules should be construed so as to avoid the result that a person is excluded for non-compliance with a procedural requirement when the Secretary of State has decided that it was unreasonable to enforce that procedural requirement.

This means that the words "in accordance with the requirements of paragraphs 281-286" should be construed as meaning "in accordance with the substantive requirements of paragraphs 281-286." Alternatively if paragraph 287 could not be so construed, it was irrational and therefore ultra vires and unlawful, and the words in question should be struck out. He submitted that it was illegitimate to have a general policy in the Rules requiring someone to go back to their own country just to fulfil a procedural requirement in order to get the benefits of entry as a spouse, because that would unlawfully discriminate against those persons who, like the Claimant, were unable for legitimate Article 8 reasons to do so.

34. Mr Cox recognized, as do I, the serious ramifications of striking out words in an Immigration Rule that has been laid before Parliament in accordance with the Secretary of State's obligations under s.3(2) of the Immigration

Act without (so far as I know) giving rise to any objection, and that has been operated in many cases over many years. For that reason he urged the Court to adopt the construction for which he contended.

35. Mr Cox relied on the decision of the House of Lords in Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420, [2008] UKHL 40. The case concerned a failed asylum seeker from Zimbabwe, who married a man who had already been granted asylum in the UK, and subsequently bore him a daughter. She claimed that to remove her to Zimbabwe would breach her Article 8 right to respect for her family life. That claim was refused and an appeal was dismissed essentially on the grounds that the claimant could and should return to Zimbabwe to apply there for entry clearance. It was Government policy at that time that anyone without entry clearance, including failed asylum seekers, should return or be returned to their own country and make any applications for entry clearance from there.
36. The House of Lords held that this policy was unlawful if and insofar as the requirement to make the application from abroad would disproportionately interfere with the applicant's Article 8 rights. They apparently envisaged that someone in Mrs Chikwamba's position should be entitled to have her application under Article 8 and any appeal against the Secretary of State's refusal of that application considered from within the UK.
37. In the passage beginning at paragraph 40, Lord Brown of Eaton–under-Heywood (with whose speech the other members of the House agreed) dealt with the argument of the Secretary of State that it was unfair to steal a march on those in the entry clearance queue by gaining entry to the UK by other means and then taking the opportunity to marry someone settled here and remain on that basis. He asked rhetorically whether it was really to be said that others would feel a sense of unfairness unless those like Mrs Chikwamba were required to make their claims to remain from abroad. He then went on to identify the real rationale for the policy as different, namely to deter people from coming to the UK in the first place without having obtained entry clearance, and to do so by subjecting those who do not, to the substantial disruption of their lives involved in returning them abroad.
38. Lord Brown expressly recognized that such an objective was not in itself necessarily objectionable, and that sometimes it would be reasonable and proportionate to take that course. He gave the example of persons who had entered the country illegally. However he concluded in 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.
39. On the facts of the case, Lord Brown said in paragraph 46:

"no one apparently doubts that, in the longer term, this family will have to be allowed to live together here. Is it really to be said that effective immigration control requires that the claimant and her child must first travel back to Zimbabwe, a country … where conditions are "harsh and unpalatable", and remain there for some months obtaining entry clearance before finally she can return (at her own expense) to the United Kingdom to resume her family life which meantime will have been gravely disrupted? Surely one has only to ask the question to recognize the right answer".

40. In his concurring speech, at paragraph 6 Lord Scott said that it was, or ought to be, accepted that Mrs Chikwamba would have every prospect of succeeding in an application made in Zimbabwe for permission to re-enter and remain in this country with her husband. He asked

"So what on earth is the point of sending her back? Why cannot her application simply be made here? The only answer given on behalf of the Secretary of State is that government policy requires that she return and make her application from Zimbabwe. This is elevating policy to dogma. Kafka would have enjoyed it."

41. Mr Cox argued that the thrust of the speeches in Chikwamba were to the effect that an applicant for leave to enter or remain in the UK in reliance on Article 8 should not be forced to return to their home country merely to enforce the entry clearance requirements for entry "as a spouse". Therefore, once the Defendant had decided that a person fell inside that category, and allowed them to enter or remain within the UK without the need to apply for entry clearance from outside the UK, they should be put on the same footing going forward as someone who had successfully applied for entry clearance as a spouse. In practical terms, the Defendant had waived the requirement for entry clearance, and having done so, it would be wrong in principle (and irrational) for that same requirement to be used as the sole justification for treating that person differently.
42. Mr Cox asked rhetorically "is it rational for the Secretary of State to say to the Claimant, you do not qualify for indefinite leave as a spouse because you did not meet the procedural requirements, even though I decided that you should not have to meet those requirements in order to stay in the UK because I recognized that to make you do so would infringe Article 8?"
43. Ms Hoskins submitted that paragraph 287 of HC 395 is clear and unambiguous. The reliance on Chikwamba was misplaced, because nothing in that decision would have provided the Claimant with the right to enter under the Rules in 2004 or thereafter. Even if the Claimant came within the ambit of the decision in Chikwamba, that would not provide a basis for entry under the Rules rather than under the API on discretionary leave, which was the basis for the grant of leave here.
44. Ms Hoskins submitted that the policy set out in the API is consistent with Chikwamba, and that the initial grant of discretionary leave to the Claimant properly recognized, in line with that decision, that to require him to make his application for entry clearance from Egypt would be a disproportionate interference with his Article 8 rights. However there was no waiver by the Secretary of State of the requirements of the Immigration Rules; as the Claimant's former solicitors acknowledged at the time, his application was made and considered outside the Rules and therefore the regime in paragraphs 281 to 287 did not apply to his case and could not apply to his case.
45. So far as irrationality is concerned, Ms Hoskins submitted that there was nothing irrational about treating people who have applied for entry clearance or extensions of stay through the proper channels differently from those who have not and cannot do so. Making it more difficult for someone who does not comply with the Rules to stay in the UK serves the legitimate purpose of discouraging non-compliance. This, of course, is the same point as was raised by the Secretary of State in Chikwamba. However it was not accepted by the House of Lords as being the overriding consideration in all cases, despite the fact that it had found favour with the Court of Appeal in earlier decisions such as R(Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840.
46. Ms Hoskins informed the Court that before the introduction of paragraph
47. in April 2003, over 50% of those who switched into the marriage category did so within six months of entry. It was also suspected that a significant proportion of such applicants were involved in sham marriages. It was considered that people who have been here for longer than six months were more likely to have formed genuine long-term relationships since their arrival. Subject to specified exceptions, Paragraphs 284 and of HC 395 prevent a person who has been granted a total of six months' leave or less from switching into the category of spouse. This is designed to ensure that a person who intends to settle in the UK on the basis of marriage applies for spouse entry clearance in the proper way from abroad, and to avoid an abuse of the system by those who wished to avoid the more rigorous examination of marriage applications abroad or the higher cost of obtaining spouse entry clearance abroad.
48. Ms Hoskins submitted that the Claimant's case on irrationality was fundamentally misconceived. In substance it was an argument for the extension of the Rules to his category of case. She also submitted that the Claimant's case was based on the false premise that he was in the same position as someone who did meet the requirements of the Rules for entry as a spouse. This was not a case in which he was given leave to enter "as a spouse". Since the leave was granted outside the Immigration Rules, the decision was wholly different in nature and the evaluation was of a different character and involved a different set of considerations. Although she conceded that there would be an overlap between the criteria applied under the Rules and in the exercise of the policy under the API, Ms Hoskins submitted that the person exercising the discretion would not have applied his mind to the question whether the substantive requirements of the Rules were met, because it had been accepted by the Claimant that he could not bring his application within the Rules.
49. Ms Hoskins stressed that the Defendant did not accept that the Claimant satisfied all the substantive requirements of the Rules, and argued that there was no evidence that he did. She submitted that when the original decision maker stated in the letter quoted in paragraph 6 above that leave was given "on the basis of your marriage to Rakia Ahmed" he was using shorthand to encompass not only the fact of the marriage, but all the compassionate circumstances that gave rise to the decision that to require the Claimant to return to Egypt would be a disproportionate interference with his Article 8 rights. She pointed out that marriage to someone settled in the UK would not be enough by itself to obviate the necessity to apply for entry clearance from outside the UK, and that discretionary leave could not have been based on the fact of the marriage alone. It was obviously based on all the other factors that made it disproportionate for the Claimant to have to leave his wife and go to Egypt to make his application for entry clearance from there.
50. In response to that point, Mr Cox took me to the evidence and pointed to a number of matters which he submitted made it clear that the Claimant not only did satisfy, but was treated by the Defendant as having satisfied all the substantive requirements of the Rules, and that his initial application was dealt with on the basis that the only requirement of the Rules that he was unable to fulfil was the procedural one. However, given that this was challenged by the Defendant, Mr Cox submitted that the Court did not need to resolve that question, because it was something that would have to be considered in any event if the decisions were quashed and the matter looked at afresh.
51. I do not accept Ms Hoskins' submission that the person exercising the discretion to grant the Claimant entry in 2004 would not have applied his mind to the question whether the substantive requirements of the Rules were met, or that the exercise carried out on that occasion was a "wholly different" exercise from that which the Entry Clearance Officer in Egypt would have carried out if the Claimant had gone back there to make his application. Even though it had been conceded by the Claimant's solicitors that his application fell outside the Rules, a proper exercise of the Defendant's discretion must surely have involved considering whether, and if so to what extent the applicant did meet the substantive requirements of the Rules, and if not, why not. The whole tenor of the API indicates, as Mr Cox submitted, that the substantive requirements of the Rules should be the starting point for consideration of the application.
52. I would also have expected the official making that initial decision to set out in the decision letter any specific non-compliance with the Rules, other than the entry clearance requirements, that he had identified, in order to explain the reasons why, despite such non-compliance, he had reached the decision to allow this applicant entry as a matter of discretion. The only non-compliance with the Rules that was ever identified was the failure by the Claimant to obtain entry clearance in Egypt. Therefore there is considerable force in Mr Cox's submission that the initial decision was premised on an acceptance by the Defendant that the Claimant met all the substantive requirements of the Rules. All the evidence seems to me to point that way. However, that is not a matter that the Court needs to decide in order to rule on this application for judicial review.
53. In the course of argument I asked Ms Hoskins what the position would be in the hypothetical case of a person who did satisfy all the substantive requirements of the Immigration Rules and who had obtained discretionary leave to enter because the Secretary of State had accepted that it would be an infringement of his Article 8 rights to require him to seek entry clearance from abroad. In particular, what was the Defendant's justification for applying the policy in the API that such a person should have to wait six years to qualify for ILR, whereas someone who was in exactly the same position in terms of the substantive requirements but who had applied for entry clearance from abroad would only have to wait for two years?
54. Although Ms Hoskins did not make any formal concession, and reserved the position of the Secretary of State on this point (because in her submission it did not arise for consideration here), she realistically acknowledged that it would be difficult in that hypothetical case, consistently with the reasoning in Chikwamba, to provide a sufficient justification for treating the applicant who fell outside the Rules less favourably than the applicant who fell inside them. Ms Hoskins submitted that in such a case it would be a matter for the discretion of the Defendant to disapply the policy set out in the API so as to treat the second applicant on a like for like basis, and that the policy could be disapplied, notwithstanding that the general tenor of the language used in the API is mandatory.
55. In my judgment, if the sole reason why the person concerned is unable to comply with the procedural requirements of the Rules is one which the Secretary of State has acknowledged to be a legitimate ground for exceptionally allowing the substantive application for entry clearance to be made from within the UK, the lawful aim of discouraging non-compliance with the Rules cannot be subverted by putting that person on the same footing thereafter as someone who has complied with those procedural requirements. In paragraph 4 of Chikwamba Lord Scott made the observation that "policies that involve people cannot be, and should not be allowed to become rigid, inflexible rules. The bureaucracy of which Kafka wrote cannot be allowed to take root in this country and the courts must see that it does not." I respectfully agree.
56. Of course, as Ms Hoskins pointed out, a person who is granted discretionary leave on Article 8 grounds may not meet all the substantive requirements of the Rules for entry as a spouse. The example given in the API of someone who has not obtained entry clearance under a "spouse visa" is just an example. It is theoretically possible for discretionary leave to be granted in a "spouse" case in circumstances where one or more of the substantive criteria set out in the Rules have not been met, though such cases are likely to be rare. One can also conceive of other kinds of cases in which a person has been granted discretionary leave outside the Rules on Article 8 grounds.
57. There may be good policy reasons for having a six year period as the normal waiting time before those admitted outside the Rules can apply for indefinite leave to remain, including the reasons mentioned by Ms Hoskins. However, once the Secretary of State or his officer has reached the decision that, in accordance with Chikwamba principles, it would be disproportionate to require a person seeking leave to enter as a spouse or civil partner of a person settled in the UK to obtain entry clearance, and exercises a discretion to allow that person leave to enter the UK, then if that person would have obtained entry clearance as a spouse from outside the UK, it is much harder to see that there is any legitimate justification for subsequently treating that person more disadvantageously than a person whose family circumstances did not preclude him from obtaining that clearance, by treating him as ineligible to apply for ILR until after six years in total have elapsed.
58. I take the view that it probably would be unlawful to apply the six-year policy period, as a matter of routine, and quite possibly in any event, to a case of an applicant who at the relevant time of entry met all the substantive criteria under paragraph 281 of the Immigration Rules, and who had been granted discretionary leave to enter outside the Rules on the basis of the marriage or civil partnership because it was accepted by the Secretary of State that it would be a disproportionate interference with his Article 8 rights to require him to go through the procedural formality of applying for entry clearance from abroad. In such a case, the very reason that the Defendant had acknowledged as a good and sufficient reason for allowing that applicant into the country without a "spouse" visa would be used as a ground for denying him the same rights as someone who has been able to fulfil that procedural requirement. That cannot be right.
59. It seems to me that such discrimination purely in consequence of the blanket application of a normal six-year waiting period for those granted discretionary leave could be castigated as irrational. It would not be a necessary or proportionate measure to meet the legitimate policy concerns that justify the general approach of treating those who comply with the rules more favourably than those who do not. To borrow Lord Scott's phrase, that would be elevating policy to dogma. I do not reach that conclusion simply by applying the reasoning in Chikwamba by analogy, but also in consequence of the operation of Article 14 read in conjunction with Article 8 ECHR, which is the point made by Fisher Meredith in their Judicial Review letter before action. I leave open, of course, the possibility that the Defendant might be able to justify a difference of approach on the facts of the individual case, or for reasons unconnected with the failure to meet the procedural requirement.
60. The next matter I have to consider is what bearing, if any, that conclusion has on the construction and irrationality arguments raised by the Claimant in this particular case.
61. On the construction issue, despite Mr Cox's valiant efforts to persuade me otherwise, I agree with the Defendant that it is unarguable that paragraph 287(a)(i)(a) means anything other than what it says, namely that the applicant must have been given an extension of stay in accordance with paragraphs 281 to 286 of the Immigration Rules, and that includes the procedural requirement of paragraph 281(b)(vi). It cannot apply to someone who has been granted discretionary leave despite non-compliance with the Rules. Paragraph 2 of the Rules does not qualify paragraph 287 in the manner for which Mr Cox contended, or entitle this Court to place an interpretation upon it other than that which it bears as a matter of ordinary construction. Mr Cox conceded that his construction would require the Court to read words into paragraph 287, and in my judgment there is no justification for doing so. The language is plain and unambiguous, and the intention behind it is clear. Only those who have complied with all the requirements of paragraph 281 can qualify under paragraph 287 for indefinite leave to remain after 2 years.
62. Moreover, Mr Cox's suggested reading of paragraph 287 would not just meet a case in which the relevant officer had decided that compliance with the requirement of 281(b)(vi) would infringe the applicant's Article 8 rights, but any case in which the applicant had failed to comply with the requirements of that paragraph, for whatever reason. That would subvert Paragraph 281 and the policy considerations behind it. In general terms, those who do not meet the requirements of the Immigration Rules but who are allowed nevertheless to enter or remain in this country have no entitlement to be treated on a par with those who do meet the requirements of the Rules, although there may be exceptional situations in which it would be unlawful to treat them differently.
63. I turn to the argument that if Paragraph 287 does require someone who fulfils the substantive requirements of Paragraph 281 to fulfil the procedural requirement of Paragraph 281 as well, before he can avail himself of the right to seek indefinite leave to remain after 2 years living the UK as a spouse or civil partner of a person settled here, it is irrational. I accept that there are genuine and rational grounds, in general terms, for making a distinction between those who have complied with the requirements of the Immigration Rules and those who have not done so. There may be a variety of reasons why there has been non-compliance with the Rules, (including the procedural requirements) some of which may be more deserving of sympathy than others. The fact that paragraph 287 confers, or potentially confers, certain benefits upon someone who falls within the Rules which would not be conferred automatically on someone who falls outside them, does not make paragraph 287 irrational or unlawful.
64. However, there is an even more fundamental reason why Mr Cox's argument about paragraph 287 being irrational is misconceived. There is nothing irrational about a provision of the Immigration Rules only governing the position of persons who have complied with those Rules. The Immigration Rules, as a body, are not designed to cater for people who do not comply with the Rules. The requirement in paragraph 287 that leave should have been granted "in accordance with" paragraphs 281-286 cannot be castigated as irrational merely because it fails to deal with the situation of someone who did not fulfil that requirement - whether for Article 8 reasons or otherwise. This was not a case in which the Defendant waived compliance with a particular requirement of the Rules but, as Ms Hoskins said, a case in which the Claimant was allowed entry despite his non-compliance. Paragraph 287 did not apply to him and cannot be extended. It follows that the construction and irrationality arguments must fail.
65. In truth the complaint of the Claimant is not really about the scope or operation of paragraph 287, or if it is, it is misconceived. It seems to me that his substantive grievance is about the apparently inflexible way in which the policy set out in the API was applied, so as to deny his application for indefinite leave to remain made four years after he was first given leave to enter. However, that is not the way in which the application for judicial review of the decisions in question has been framed.
66. The decision letters appear to me to indicate that the Defendant's officers focused solely on the question whether paragraph 287 did or did not apply to the Claimant's case. Although, as I have held, they reached the right answer on that question, they appear not to have considered whether this was an appropriate case for exercising a discretion to truncate the normal minimum waiting period of six years before granting ILR, a discretion that Ms Hoskins rightly acknowledged to exist. Nor do they appear to have turned their minds to the question whether Articles 8 and 14 ECHR required them to treat this applicant on a like for like basis with someone who had obtained entry clearance as a spouse. I can therefore conceive of grounds on which the Claimant might have sought judicial review of the decisions based upon the way in which the policy in the API was applied to his case. Indeed the Judicial Review letter before action put his claim squarely on that basis. However, when I raised this point with Mr Cox, he expressly disavowed any intention to make such a challenge, and went so far as to concede that the Defendant's decisions were properly within the ambit of his discretion. He stated in terms that if the Claimant fell outside the Rules, then subject only to the s.3(2) point his claim for judicial review must fail.
67. It is not for me to question the way in which the Claimant's legal team has decided to put his case. No doubt there is a very good reason for not pursuing an argument which I found, at least superficially, to be persuasive, and to which Ms Hoskins seemed to have no easy answer, apart from submitting that this case was not factually on all fours with the hypothetical case postulated in paragraph 51 of this judgment. In any event, it would be wrong in principle for me to decide the case on a basis that was deliberately not advanced, since the Defendant has had no proper opportunity to address it. There may well be authorities to which I was not referred which would preclude me from arriving at what appears to be the just result. With some regret, I therefore turn to the sole remaining argument advanced on the Claimant's behalf.

The Section 3(2) Argument

68. Mr Cox's final argument was based on Section 3(2) of the Immigration Act which provides, so far as relevant, as follows:

"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances..."

69. Mr Cox accepted that a failure to comply with Section 3(2) did not make the "rule" in question invalid, and that its application could not be challenged as unlawful. However he submitted that the "policy" set down in the API was a "rule" falling within the purview of Section 3(2), and that if this Court were to accept that it was, and to express the view that it ought to have been laid before Parliament, that might pave the way for Parliament to do something to remove the apparent injustice that it is capable of causing someone like the Claimant.
70. Ms Hoskins' initial riposte was that this argument fell into the trap of assuming that the Secretary of State's likely response to such a ruling by the Court would be to lay the "rule" before Parliament, whereas it would be open to the Secretary of State to react in a number of other ways, including dispensing with the policy altogether. I did not find this an attractive stance: one would not expect a Minister to react to the Court's ruling in a way which looked as if he or she was trying to evade his statutory responsibilities, and the veiled threat that he or she might do so would be no reason to avoid making the ruling if, however politically unpalatable, it were otherwise justified. However, I could see force in the wider point made by Ms Hoskins that the chances of the Claimant benefiting from anything the Court said about whether the Secretary of State should have put the policy before Parliament were likely to be remote, and that could well affect the question whether the Court would exercise its discretion to grant relief.
71. After some debate, it was agreed with Counsel that the sensible course was for any question of relief to be left over until after I had formed a view on the merits of the argument on s.3(2), because there would be no need to address it if I were to conclude that the argument must fail.
72. At first sight it might appear obvious that a "rule" is something that is designed to regulate, and which sets out definitive criteria that must be fulfilled by an applicant in order to obtain leave to enter or remain in the UK. However Mr Cox submitted that Section 3(2) was not limited to what might be termed "hard-edged rules". He relied on the passage in Lord Bridge's speech in R v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1986] 1 WLR 910 at 917H to 918B, which draws attention to the fact that the Immigration Rules themselves are quite unlike ordinary delegated legislation, but

"are discursive in style, in part merely explanatory and, on their face, frequently offer no more than broad guidance as to how discretion is to be exercised in different typical situations. In so far as they lay down principles to be applied, they generally do so in loose and imprecise terms..."

73. In the recent case of MO (Nigeria) v Secretary of State for the Home Department [2009] 1 WLR 126 the Court of Appeal reconsidered what was said in the Bakhtaur Singh case and emphatically rejected an argument that things had changed in the intervening years. In that case, consideration was given to s.3(2) of the Act. In paragraph 15, Buxton LJ pointed out that that section would have been just as effective if it had not referred to "rules" but had been formulated in terms, for instance, of a statement of the principles according to which the Secretary of State intends for the time being to exercise the statutory and prerogative powers which govern admission to the United Kingdom. Longmore LJ added in paragraph 27 that if the true position is that the immigration rules are statements of executive policy at any particular time (as the Court of Appeal had decided they were) it would be inappropriate to say that any applicant has a vested right to rely upon such policy statement. Policy statements change as policy changes. It follows from these judicial observations that the Immigration Rules are not "rules" in the conventional sense.
74. Since the Immigration Rules are statements of existing principle or of executive policy, Mr Cox argued that there is no legitimate basis for creating a distinct body of "rules outside the Immigration Rules" or "policy outside the Rules" which enables the Secretary of State to avoid the requirements of s.3(2). If a provision, whatever it may be called, in fact governs the practice to be followed for regulating the entry into and/or stay in the United Kingdom of persons required by the Immigration Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances, it falls within s.3(2). The section itself envisages that a "rule" may apply only to persons falling within a particular class. Thus the requirement in the API that those allowed to enter the UK as a matter of discretion on Article 8 grounds must wait at least six years to qualify for ILR is a "rule".
75. Ms Hoskins submitted that the API were more generous than the Rules; they were concessions, and far from being inflexible, could be departed from. This was so despite the fact that the Secretary of State has chosen to express the policy in the API in mandatory language of the type one might expect to find in a hard-edged "rule". Mr Cox's answer to this was that a rule does not cease to be a rule because it is capable of being departed from in the exercise of discretion; and that the Immigration Rules themselves were not immutable, but contained elements of flexibility and discretion, so that even if Ms Hoskins was right about the nature of the API this was not a valid ground for distinction. On this point I agree with Mr Cox. The key question to be determined is whether Parliament intended that measures such as those contained in the API, whether they are expressed in the language of regulation or not, should be subject to its scrutiny under s.3(2).
76. Mr Cox conceded that the Act itself provides for "Instruction" to be given to Immigration Officers under Schedule 2, and that such instructions do not have to be put before Parliament, but submitted that as immigration officers exercise the semi-autonomous power to grant or refuse leave to enter the UK (under s. 4 of the Act), the API cannot fall within the definition of "Instruction".
77. I agree that this is so: however, as Mr Cox also conceded, the Secretary of State also has the power to delegate his powers under s.4 in respect of leave to remain or variation of existing leave, and in practice has no choice but to do so because of the high volume of applications with which he has to deal. In order to promote a uniformity of approach by those exercising the delegated powers on his behalf, the Secretary of State also has the power to issue guidance about how those powers are to be exercised. Mr Cox submitted that this power is limited to guidance, and does not extend to instruction, because the Secretary of State cannot issue an instruction to himself, but in this context that seems to me to be a semantic distinction which takes the argument no further.
78. If Parliament has envisaged that the Secretary of State can issue instructions to the persons who have responsibility for making decisions about entry, and those instructions are not to be treated as "rules" falling within s.3(2), it would be very odd if guidance given by the Secretary of State to the persons to whom he has delegated his powers under s.4 to give leave to remain or to vary any leave granted, had to be regarded as having some more elevated status, which would require Parliamentary oversight. That would result in the paradoxical situation whereby Parliament would have less control over instructions regulating the interpretation and application of the Immigration Rules at the point of entry to the UK, than it would over guidance about how Home Office officials should deal with applications made by persons who were already here.
79. Mr Cox acknowledged that his submissions potentially had serious practical repercussions if they were correct. This is because he adopted the extreme position that any measure (other than an "instruction" under Schedule 2), however labelled, relating to the practice to be followed for regulating the entry into and stay in the UK of persons required to have leave to enter was a rule. It is fair to say that an interpretation of s.3(2) that required any such instructions or guidance or policies (other than an "instruction" to immigration officers issued under Schedule 2 of the Immigration Act) to be laid before Parliament, would obviously result in a huge increase in Parliamentary business, and could have a detrimental impact on the ability of Parliament to function normally.
80. Ms Hoskins adopted an equally extreme contradictory position, namely, that a rule was only a rule falling within s.3(2) if the Secretary of State designated it as an Immigration Rule or an amendment to those Rules. On that point, I agree with Mr Cox that the question whether a measure falls within s.3(2) or outside it cannot be definitively determined by the label that the Secretary of State decides to attach to it. Therefore section 3(2) is not necessarily confined to a rule, measure, or policy directive that the Secretary of State decides to call an "Immigration Rule" or decides to treat as a modification of the existing Immigration Rules. I accept that one has to look at the substance of the measure in question, otherwise the Secretary of State could easily bypass the requirements of s.3(2). The difficulty lies in ascertaining precisely where the line should be drawn between those policy statements or statements of principle that qualify as "rules" falling within s.3(2) and those falling outside it – assuming, contrary to Mr Cox's submission, that such a category exists.
81. Ms Hoskins submitted that there is a distinction between a rule, on the one hand, and a policy relating to the interpretation or application of a rule, or a policy dealing with matters that are not covered by the existing Immigration Rules, on the other. She further submitted that a policy, even if expressed in mandatory or prescriptive terms, can be departed from, whereas a rule cannot. However, as Mr Cox demonstrated by reference to cases such as MO (Nigeria) that distinction cannot be applied so easily to the Immigration Rules, which are themselves no more than statements of existing policy. Moreover, every change to the Immigration Rules, ex hypothesi, must address a situation that is not covered by the existing rules. Thus it must be possible for a measure or a policy relating to something that is not already the subject of an existing Immigration Rule to fall within s.3(2).
82. It seems to me, therefore, that the true distinction must lie in the function and practical application of the measure in question. If, in practice, something is treated as an immigration rule, it is a rule. If, for example, an existing Immigration Rule sets out five specific requirements for leave to remain, but as a matter of established practice people who only fulfil the first four requirements are always allowed to stay in the country, then that practice may create a new "rule" or a modified rule falling within section 3(2) and there is an obligation to lay it before Parliament. The same would apply if the Secretary of State sent out a circular to his staff dispensing with requirement No.5 for the indefinite future.
83. On the other hand, whether one calls them rules or statements of principle, or statements of executive policy, the measures falling within s.3(2) must create a yardstick (however flexible, and whether or not involving the exercise of a discretion) against which applications for leave to enter the UK or remain in the UK made either by anyone, or by a particular defined class of persons, fall to be evaluated from time to time by those who have been entrusted with the responsibility of granting or refusing such applications. There will always be people who meet that yardstick, and people who do not.
84. In the case of people who do not fulfil the specified criteria at a particular time, there will always be some who nevertheless seek (and deserve) to be allowed to enter or to remain. There is undoubtedly a residual discretion in the Secretary of State which may be exercised by those to whom his powers are delegated, on a case by case basis, notwithstanding that the applicant does not or cannot fulfil whatever the relevant specified criteria may be at that time. I do not consider that s.3(2) of the Act, on its proper interpretation, is concerned with the exercise of that residual discretion or with guidance that may be issued by the Secretary of State from time to time to those persons to whom his powers have been delegated, with a view to creating a consistency of approach to the exercise of that residual discretion. That exercise is necessarily concerned with something other than the application of the rules that are the subject-matter of s.3(2).
85. Although the requirement set out in the API of a minimum of six years' residence before someone who has been granted discretionary leave may apply for settlement appears to be mandatory and inflexible, and is expressed in language that appears to be the language of regulation, in my judgment guidance of the type to be found in the API is not what Parliament had in mind when s.3(2) was enacted. That section is directed at those measures whose function and purpose is to regulate in general terms who can come into the country, and who can remain here, and for how long, after they have obtained leave to enter. It is not directed at any measure which promotes uniformity of approach to the exercise of a residual discretion on a case by case basis to those who, for whatever reason, do not meet the requirements of those rules.
86. For those reasons the s.3(2) argument must fail.

Conclusion

87. It will be apparent that I have considerable sympathy with the complaint by the Claimant that he has been unfairly made to wait far longer to qualify for ILR than someone in exactly the same position who had obtained the entry clearance that the Defendant decided it would be disproportionate and unfair to require the Claimant to obtain. Nevertheless, for the reasons stated above, it is clear that the three grounds upon which his claim for judicial review of the relevant decisions is based must fail. I therefore dismiss this application.