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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 >> Sikhosana, R (on the application of) v The Secretary of State for the Home Department [2014] EWHC 4312 (Admin) (18 December 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/4312.html Cite as: [2014] EWHC 4312 (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
		18th December 2014

Michael Kent QC:

1. This is a claim for judicial review brought with the permission of Miss Geraldine Clark sitting as a Deputy Judge of the High Court. His Honour Judge Jarman QC sitting as a Judge of this Court had directed that there be a "rolled up hearing" but because, in reliance on recent Court of Appeal authority, the Claimant's Counsel was permitted substantially to change the nature of the grounds being pursued, Miss Clark adjourned the substantive hearing which has now come before me.
2. The Claimant, a citizen of South Africa, is now aged 37 and came to the United Kingdom on a six-month visitor's visa in 2002. He obtained further leave to remain as a student until 30 September 2003 but he has remained unlawfully here since then. On 5 March 2012 he applied for leave to remain as a family member on the basis that he had met a British citizen, Sharon Verona Campbell, in 2007 and they had been living together since November 2008. She was earning a living as a self-employed cleaner and they, along with her two children from a previous relationship, occupied a three bedroom flat rented from the Council by Ms Campbell. They intended to marry. The Claimant was said to rely upon financial support both from Ms Campbell and from his family in South Africa.
3. By letter dated 13 October 2012 the Claimant was notified that his application had been refused. The letter was accompanied by a Notice of Decision which contained reasons. The covering letter stated that changes to the Immigration Rules announced on 11 June 2012 (that is after the date of the Claimant's application for leave to remain) now set out "requirements for those seeking leave to enter or remain on the basis of their right to respect for private or family life by defining the criteria that a person is expected to fulfil in order to qualify (sic) this right to remain in the United Kingdom. These are set out in Appendix FM and paragraph 276ADE of the Immigration Rules".
4. The Notice of Decision referred to paragraph 295F, with reference to 295D (i) and (iv) of the Immigration Rules, and to paragraph D-LTRP1.3, with reference to R-LTRP1.1(c) and (d) of Appendix FM. It also referred to paragraph 276CE. The first part of the Notice identified two requirements of paragraph 295D which the applicant was unable to meet, namely the need to have limited leave to enter or remain in the United Kingdom and not to have remained in breach of the immigration laws. There is no issue about that. The Notice then went on to consider Appendix FM, setting out relevant parts and concluded that the Claimant could not qualify under the requirements laid down in that Appendix or come within any of its specific exceptions.
5. Finally the decision letter refused the application under the private life limb of Article 8. I need say no more about that because the Claimant has abandoned a challenge based upon his rights to a private life under Article 8 of the European Convention.
6. In response to that decision these proceedings were started on 21 December 2012 seeking an order quashing it on a number of grounds. One of the grounds was that the letter had erroneously relied on new Immigration Rules introduced by HC194 that came into force on 9 July 2012, that is after the date of the Claimant's application for leave to remain. The argument was that he was entitled to be considered under "the old rules". That prompted a further letter from the UK Border Agency dated 18 June 2013 which stated that it had "been produced in order to provide further clarification relating to the consideration, and refusal, of the application submitted by your above named client on 5 March 2012". In fact the letter was more than clarification because in the next paragraph it said that "the Secretary of State has given further consideration to the application submitted by your above named client on 5 March 2012. For the reasons set out below and in her earlier decision dated 13 October 2012, it has been decided to maintain the earlier refusal." This letter went on to consider the application under Appendix FM and concluded, as before, that the Claimant could not bring himself within the relevant exception. There is then a paragraph headed "Consideration outside the Immigration Rules". This continues:

"In accordance with the Secretary of State's instructions, it has also been considered whether your client's application raises or contains any exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant consideration by the Secretary of State of a grant of leave to remain in the United Kingdom outside the requirements of the immigration rules.

Careful consideration has been given to the information provided on your client's behalf, but for the reasons given above and in the earlier decision on 13 October 2012, the Secretary of State is satisfied that there are no circumstances which would render a refusal of leave to remain a disproportionate interference with his rights, and those of Ms Campbell, under Article 8 ECHR".

7. The original grounds which, as I have stated, pre-dated the 18 June 2013 letter, in addition to complaining that the decision was taken under the new rules including Appendix FM, made a particular complaint that the SSHD had infringed the principle laid down in Chikwamba v SSHD [2008] UKHL 40 [2008] 1 WLR 1420 in failing to consider whether it was a disproportionate response to require the Claimant to leave the United Kingdom in order to apply for entry clearance in South Africa. That has—rightly in my view—not been pursued: this is not a case where the only reason why leave was refused was because a temporary interference with Article 8 rights while he returned to his home country to make an entry application would not in itself be a disproportionate interference. On the contrary the conclusion here was that a permanent exclusion would not amount to a disproportionate interference with his Article 8 rights. Similarly the complaint originally advanced that the Claimant ought to have been allowed an in-country right of appeal has rightly been abandoned.
8. Because of the reference in the grounds to error of law in applying the new rules there was some, as it turned out unnecessary, work imposed upon those acting for the Secretary of State to demonstrate that in fact the old rules (that is to say paragraph 295D), had been applied to the Claimant's case. It only really became apparent, as I understand it, when the matter came before Miss Clark that reference to "the old rules" was another way of saying that Appendix FM had no application and the Claimant's application for leave to remain should have been considered outside the rules altogether in light of all matters relevant to the need to protect his Article 8 rights. That has led to a discussion before me as to whether in fact Appendix FM should have been referred to at all in the decision letter. For reasons which will appear that, which requires consideration of transitional provisions on which courts arguably have taken different views, is not in my view fundamental to the outcome of this case. In any event it seems likely that linked appeals in Khalid v. Secretary of State for the Home Department and SS (India) v. Secretary of State for the Home Department recently considered by the Court of Appeal on which judgment is awaited, may well authoritatively resolve this question. I will deal with it therefore relatively shortly.
9. The new rules were introduced by HC194 coming in to effect on 9 July 2012. Under the heading "Implementation" there is text making clear that any application for leave to remain made before 9 July 2012 but not yet decided "will be decided in accordance with the rules in force on 8 July 2012". The text then goes on to say:

"Appendix FM applies to applications made on or after 9 July 2012 as set out in paragraph 91 of this Statement of Changes".

10. Read in isolation that can only mean that Appendix FM would have no relevance to the Claimant's application for leave to remain in this case. Though paragraph 91 of HC194 modifies the position slightly in applying Appendix FM to certain applications made before 9 July 2012 that is explicitly not the case "where the provisions of Part 8 are preserved and continue to apply, as set out in paragraph A280". As paragraph A280 includes, amongst other things, the rule under which an application for leave to remain as an unmarried partner is made, including paragraph 295D, these transitional provisions would seem to confirm that, in his case, Appendix FM would not apply.
11. However, before the decision refusing leave to remain on 13 October 2012 had been made and communicated, further changes were introduced under HC565 dated 6 September 2012. Paragraph A277C of this statement of changes provides:

"Subject to paragraphs A277 to A280 and paragraph GEN.1.9. of Appendix FM of these rules, where the Secretary of State is considering any application to which the provisions of Appendix FM (family life) and paragraph 276ADE to 276DH (private life) of these rules do not already apply, she will also do so in line with those provisions".

12. Mr. Rawat on behalf of the Secretary of State says that the new transitional provisions introduced in September 2012 did therefore bring into force Appendix FM in relation to pending applications. Mr. Kannangara responds that paragraph A277C does not affect his client's case because his client was never applying under the rules but was only applying for discretionary leave outside the rules and paragraph A277C is premised upon an application being made under the rules.
13. My view is that Mr. Rawat is probably right on this question. Paragraph A277C does not say that the pending application has to be made under the rules but refers to "any application to which the provisions of Appendix FM....of these rules do not already apply". In any event it seems to me that, although it was bound to fail because the Claimant could not satisfy two of the key requirements of paragraph 295D of the rules, on the face of it he was still applying under that paragraph which is quoted in the covering letter from his solicitors dated 5 March 2012. He applied on a form which was intended to be, as it says on its front page, "a specified form for the purpose of the Immigration Rules".
14. Mr. Kannangara points to a decision of Mr. Dove QC (as he then was) sitting as a Deputy High Court Judge in Iqbal v. Secretary of State for the Home Department [2014] EWHC 1822 (Admin) who came to a different conclusion. However he was considering paragraph A277B of HC565 which is significantly differently worded.
15. The reason why this may not matter is that the authorities to which I will refer in a moment clearly require that, in a case to which Appendix FM applies, the Secretary of State must nevertheless consider whether, if the Applicant cannot succeed under that Appendix, there are nevertheless separate reasons why leave to remain ought to be given in order to avoid a disproportionate interference with the Applicant's Article 8 rights. Whether the correct procedure was for the Secretary of State to consider discretionary leave based on the Claimant's Article 8 rights outside the rules or to apply the check-list in Appendix FM but then go on to consider the matter further in the light of Article 8, the ultimate question is the same: did the Secretary of State come to a decision which amounted to a disproportionate interference with the Article 8 rights of the Claimant.
16. Mr. Kannangara in support of his contention that the old rules should apply relied upon the decision of the Court of Appeal in Edgehill & Another v. Secretary of State for the Home Department [2014] EWCA Civ 402. That was a case concerned with the right to private life and a change in rules which already addressed certain aspects of the rights guaranteed by Article 8 in relation to private life by allowing a grant of indefinite leave to remain on the ground of long residence. The old rules required 10 years continuous lawful residence or 14 years continuous residence (lawful or not but with some exceptions). The revised rules set out in HC194 imposed a single requirement of 20 years continuous residence (lawful or not but again with exceptions). It was the Secretary of State in that case who submitted that, because they had sought discretionary leave under Article 8, the old rules were not preserved for the two applicants for leave to remain because the second paragraph of HC194 under the heading "Implementation" was directed only to pending applications under the rules but their applications were made outside them. The Court of Appeal rejected this argument and concluded that the effect was that the cases before them had to be considered under the old rules and, insofar as in one case the old rules were in a crucially material respect more generous and would have yielded a different result, the appeal in that case should be allowed. The Court of Appeal did not consider the later transitional provisions under HC565 to which I have referred but that is because the decisions of the First Tier Tribunal under appeal pre-dated the changes brought in by HC565.
17. There is in any event an important distinction between this case and the Edgehill case which is that the Claimant cannot here point to any substantive rule that existed at the date of his application which was, by the changes made in July 2012, made less favourable as in one of the cases in Edgehill. Mr. Kannangara says however that the changes are detrimental to his client because, in effect, the Secretary of State has simply focussed on the checklist in Appendix FM and not looked at the matter in the round as she would have done prior to the introduction of Appendix FM.

Appendix FM

18. So far as relevant to this case this provides in E-LTRP.1.1 that "to qualify for leave to remain as a partner all the requirements of paragraphs E-LTRP.1.2 to 4.2 must be met." One of those requirements was that "the applicant must not be in the UK in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1 applies." (E-LTRP.2.2). As the Claimant could not meet that requirement he had to come within EX. 1 if he was to succeed under Appendix FM. The exception in EX.1 included a case where "(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen…and there are insurmountable obstacles to family life with that partner outside the UK."
19. The House of Lords in Huang v. Secretary of State for the Home Department [2007] UKHL 11 [2007] 2 AC 167 had rejected the contention that there was a test of "exceptional circumstances" to be met by an applicant seeking discretionary leave outside the old immigration rules notwithstanding the use of that phrase by much of the Strasbourg jurisprudence. While it would in practice be exceptional for Article 8 to trump immigration rules it was not in itself a separate test. I have been taken to the observations of the Court of Appeal in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 [2014] 1 WLR 544 on the correct approach to such cases. That was concerned with separate rules relating to deportation of those convicted of crime but it makes clear that the changes introduced in 2012 in general do not fall foul of the rule in Huang by imposing a separate test of "exceptionality". Further the approach adopted by Sales J in R (Nagre) v. Secretary of State for the Home Department [2013] EWHC 720 (Admin), which was a case concerned with Appendix FM, was expressly approved. Sales J had noted that the revised rules which included Appendix FM, taken together with Immigration Directorate Instructions to officials as to the approach to be adopted, provided "better explicit coverage of the factors identified in case law as relevant to analysis of claims under Article 8 than was formerly the position". A two stage process was appropriate: first consider whether the applicant can succeed under the rules including Appendix FM. If not then "go on to consider whether there are compelling circumstances not sufficiently recognised under the new Rules to require the grant of such leave". However in a case where "the consideration under the Rules has fully addressed any family life or private life issue arising under Article 8, it would be sufficient simply to say so; they would not have to go on , in addition, to consider the case separately from the Rules" (paragraphs 29 and 30 of his judgment).
20. One of the complaints made by Mr. Kannangara is that Appendix FM under paragraph EX.1 (b) provides an exception, in a case where the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, only where "there are insurmountable obstacles to family life with that partner continuing outside the UK" [emphasis added]. Sales J in Nagre noted that this is a phrase picked up from the judgment of the European Court of Human Rights in Rodrigues Da Silva & Hoogkamer v. Netherlands (2007) 44 EHRR34 where the Court pointed out that it would be exceptional in a "precarious" case (that is one where the relationship started at a time one partner had no right to remain) for Article 8 to prevent removal: "persons who, without complying with the regulations in force, confront the authorities of a State with their presence in the country as a fait accompli do not, in general, have any entitlement to expect that a right of residence will be conferred on them."(paragraph 43)
21. In paragraph 41 of his judgment in Nagre Sales J says he agrees with the comment of the Upper Tribunal in Izuazu v SSHD [2013] UKUT 45 (IAC) that the Strasbourg case law "does not treat the test of insurmountable obstacles to relocation as a minimum requirement to be established in a precarious family life case before it can be concluded that removal of the Claimant is disproportionate; the case law only treats it as a material factor to be taken into account". In MF (Nigeria) Lord Dyson in paragraph 49 giving the judgment of the Court made a comment about the phrase "insurmountable obstacles" but noted that the issue did not arise in that case. He said "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 are inclined to the view that for the reasons stated in detail by the UT in the Izuazu case [2013] Imm AR 453 paras 53-59, such a stringent approach would be contrary to Article 8". Relying on that Mr. Kannangara submits that when, in the second letter of 18 June 2013, the Secretary of State does purport to consider the matter outside the Immigration Rules but then merely refers back to the reasons already given in relation to Appendix FM, she must be imposing too stringent a requirement, namely that it must be literally impossible for the family life of the Claimant and Ms Campbell to continue in South Africa.
22. The trouble with that argument is that, as noted, the rules must be read with the Immigration Directorate's Instructions. Those in force at the date of the second decision letter, in a section concerned with Appendix FM and Exception EX.1 included:

"3.2.7c Assessing whether there are insurmountable obstacles.

In determining whether there are 'insurmountable obstacles' the decision maker should consider the seriousness of the difficulties in which the applicant and their partner would face in continuing their family life outside the UK, and whether they entail something that could not (or could not reasonably be expected to) be overcome, even with a degree of hardship for one or more of the individuals concerned".

23. There then follows discussion of specific problems, such as the ability of both parties to enter and stay in the country where they would be expected to live, cultural and religious barriers and the impact of mental or physical disability, which might need to be considered.
24. It seems to me therefore that the way in which Appendix FM is applied (and it can be expected that an officer considering an individual case will so apply it) in the light of that guidance does not involve the imposition of a minimum requirement, before an applicant can come within the relevant exception of "insurmountable obstacles", of a finding that it is impossible for him and his partner to live together in the other country.
25. In 3.2.7d of the Instructions, guidance on consideration outside the rules and what may amount to "exceptional circumstances" is also given. This includes:

"'Exceptional' does not mean 'unusual' or 'unique'. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1. of Appendix FM have been missed by a small margin. Instead, 'exceptional' means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. That is likely to be the case only very rarely".

26. That accords with what has since been said in Haleemudeen v. Secretary of State for the Home Department [2014] EWCA Civ 558 where the Court regarded a tribunal finding of "apparent harshness" as "in substance an application of an impermissible 'near miss' test" (paragraph 49). In practice there is likely to be some feature of the case which has not been addressed by the Immigration Rules, perhaps because it is an unusual circumstance. As has been seen the guidance in relation to "insurmountable obstacles" already mentions certain specific features such as the need for medical treatment and to that extent those considerations are already incorporated in Appendix FM itself.
27. So I reject the argument that either in applying Appendix FM or in considering the matter outside the Immigration Rules, the Court should infer that the Secretary of State has imposed a requirement which effectively does not fully acknowledge the Claimant's Article 8 rights.

The factors considered by the Defendant

28. The authorities show that there is a two stage process as I have said. Having rejected a claim as not falling within Appendix FM does the need for the second stage mean that in a case such as this it is not sufficient to say that "for the reasons given above and in the earlier decision letter of 13 October 2012, the Secretary of State is satisfied that there are no circumstances which would render a refusal of leave to remain a disproportionate interference with his rights, and those of Ms Campbell, under Article 8 ECHR"? The answer must depends on the facts of the particular case but Mr. Kannangara has not been able to point to any specific factors which are not mentioned in the original or supplementary decision letters which ought to have been given separate consideration. It is recorded that the Claimant had been unlawfully here for over 8 years after his leave to remain as a student expired in 2003 until he made his application for leave to remain, that he has no children from the relationship with Ms Campbell, that her two children are now aged 25 and 21 and will no longer require the same level of support from their mother as they required when younger. It is further noted that, from the start of the relationship, Ms Campbell should have been aware of the Claimant's precarious immigration status and the fact that he could be asked to leave the United Kingdom at any time. It is noted that the Claimant and her partner do not own any property in the United Kingdom and that she is not currently undertaking any highly paid skilled work. It is noted that should they decide to relocate to South Africa "it would not be impossible for Ms Campbell to find employment, or to set up a similar business to the one she has in the UK". It is also noted that the Claimant would be able to find work in his home country (something that he is not currently permitted to do in the UK), which would assist their finances while the couple readjust to life in South Africa. On the question of "insurmountable obstacles" it is accepted that "the couple may face a degree of hardship if they are relocated to South Africa, and that life there may not be as comfortable as life in this country, but it is not accepted that any of the issues raised would qualify as 'insurmountable obstacles' for the purposes of the Immigration Rules".
29. In my view the two letters read together fully cover the ground of possible factors which might justify the grant of leave to remain under Appendix FM, alternatively under the residual discretion outside the Rules. In addition it seems to me that, even if some error of law could be identified in one or either of the decision letters, such error was not material because the decision would have inevitably been the same. There is nothing exceptional about this case.
30. For the above reasons this claim is dismissed.