No More Freewheeling Article 8

Gulshan (Article 8 – new Rules – correct approach) Pakistan [2013] UKUT 640 (IAC) (17 December 2013)

This case is about spouses and relocation. It is also about Karachi which is my hometown and Pakistan’s largest and most dangerous city. The metropolis is where I spent the last few weeks reuniting a British citizen – a victim of forced marriage (as a child) to a much older scion of a rich and powerful economic dynasty – with her children. Of course, this British mother was overjoyed at the sympathy she received in Pakistan. Her cause to be permanently reunited with her children is ongoing and, despite the problems with the country’s post-colonial legal system, from her perspective the Pakistani courts do provide timely relief to those who need it.  

Equally interestingly, in this recent immigration decision about the correct approach to article 8 and the new rules, the respondent Mrs Gulshan (G) was a 60-year old Karachi’ite who got married to her husband in 1975 (he entered as a visitor in early 1992, overstayed and eventually became a British citizen in 2006). On the basis of that relationship, G made an application for leave to remain as the spouse of a person present and settled in the UK. The Upper Tribunal (Mr Justice Cranston and Judge Taylor, para 17) described the “vast” case law on article 8 as burdening judges (who have the difficult job of keeping abreast of the “frequent twists and turns” of the law). The Upper Tribunal did “not intend to add to the problem” and limited its analysis to “only three cases which concern the status of the 2012 immigration rules and the role of article 8” (para 17).

These germane cases are:

The Upper Tribunal recalled MM as a case involving “a direct attack” on the maintenance requirements, exacting a minimum income level of £18,600, for the admission of partners to the UK. In MM the Court held that although the financial requirements did have a legitimate aim, they were so burdensome that they constituted an unjustified and disproportionate interference with article 8 rights. Yet the Court did not declare the requirements unlawful or quash them. Rather, Mr Justice Blake held (para 120) that:

… claims of individual violations should be examined in the context of an application when the relevant facts can be established and the factors weighed in the balance

Because of economic and social reasons the Home Office was entitled to a threshold higher than bare subsistence but the figure of £13,400, which was close to the adult minimum wage for a 40-hour week, was about right and a higher (minimum) requirement of £18,600 denied too many young people and low wage earners the right to have their spouses admitted to the UK. The higher figure invaded the right of British citizens and refugees to live with their chosen partners unless they had substantial savings. There was justification for having a substantial financial requirement as this reversed the ghettoised view of family migration (advanced by some people) and promoted the acquisition of skills in the immigrant community. Blake J remained unconvinced that referring difficult cases to the SSHD for advice on the exceptional circumstances policy was enough to make the decision making process as a whole lawful and compatible with ECHR rights. The Court enumerated nine points to reach the conclusion that article 8 needed to be raised separately from the immigration rules. The correct balance had to be struck to achieve ECHR compatibility which a meagre and imprecise discretion was incapable of achieving.

The Upper Tribunal noted that the MM Court fleetingly referred to R (Nagre) v SSHD [2013] EWHC 720 (Admin) where Mr Justice Sales investigated article 8’s relationship with the new rules and the Court found that the rules were not unlawful because the guidance accompanying them envisaged cases falling outside their parameters in which the SSHD could grant discretionary leave. Moreover, in uncertain (“precarious”) family life cases, the Strasbourg Court thought that article 8 was only violated by the removal of the non-national family member in exceptional circumstances. Where no insurmountable obstacles to removal exist and removal is still considered disproportionate, other non-standard and particular features of a compelling nature demonstrating that removal would be unjustifiably harsh need to be shown.

In G’s case, she had two daughters who lived in Pakistan with their husbands and her son lived in the UK and did not have a clear immigration status. G’s husband, who attended the hearing, received a state pension and rented a council house in Hackney; he received council tax and housing benefits. G had almost £29,000 in savings and had been to the UK 19 times as a visitor and on her last entry she made an in-time application for leave to remain as a spouse of a person present and settled in the UK. The application was refused because of lack of correct immigration status and failure to meet the financial requirements under the rules as the requisite wage slips and an English language certificate were not provided (however, later on G’s English was accepted as good). G’s case on article 8 was refused by reference to EX.1 because there were no insurmountable obstacles preventing her from continuing her family life outside the UK. Similarly, it was not accepted that G had no social or cultural ties with Pakistan and her application did not fit within the private life provisions set out in paragraph 276ADE of the rules.

Earlier on, the First-tier Tribunal had dismissed G’s appeal on the rules but had allowed it on human rights grounds; G made the point that she and her husband were in old age and the judge acknowledged that it would be too much to expect G’s husband to return to Pakistan and live there after being in the UK for 20 years.

However, the Upper Tribunal remade the First-tier Tribunal’s decision and dismissed the appeal against the decision to refuse to vary leave and it made the point that:

26.        In our respectful view the judge was in error in his analysis. Certainly it was accepted that the respondent did not qualify under the immigration rules. But that did not mean that they could be passed over without analysis. The rules should have been the starting point, not least because the Secretary of State rested her decision – the decision the respondent was appealing – on the rules. Important in our view is that the respondent not only fell short of the rules, but fell short by a very considerable margin. Indeed, the income figure did not even approach the £13,400 income per annum level which Blake J had identified in MM as a more acceptable starting point, and which he had highlighted because of the position of young people and low-wage earners. Here the pension income of the husband is £7,420.40, the respondent’s savings are relatively modest and neither the respondent nor he works. The respondent will qualify for pension credits if she settles here but this will boost that figure only slightly.

Moreover, the Upper Tribunal discouraged engaging in “a freewheeling article 8 analysis, unencumbered by the rules” (para 27) and explained that by the First-tier Tribunal’s own conclusion G’s matter was “a very run of the mill case with no compelling circumstances” (para 28). The Upper Tribunal failed to “see any insurmountable obstacles to family life in Pakistan or unjustifiably harsh results” and dismissed the appeal to vary leave to remain because:

  • G applied for a spouse visa on a visitor’s status
  • Her husband only recently became a British citizen
  • The medical evidence did not support the claim that her husband needed her by his side
  • While her husband was unlawfully in the UK it was by choice convenient for her to remain in Pakistan with her daughters – who were now married and had independent lives
  • Travelling to and from Pakistan is expensive and inconvenient for G but that did not stop her husband (who had a state pension, pension credits, housing benefit, and council tax benefit) from visiting her in Pakistan
  • The belief that G’s husband could not live in Pakistan, where he had spent more than two thirds of his life, was flawed and “unsustainable”

Although G made an in-country application, an aspect of the vexing situation over spouse visas which often gets overlooked is the time – often a year or more – it takes for an entry clearance appeal to be heard. In cases where there are strong prospects of success the Home Office usually withdraws its decision at the last minute (i.e. in the hearing).

In practical terms withdrawing the refusal deprives the Tribunal of its jurisdiction of producing a determination stating the reasons for allowing an appeal. Some judges, who very generously indicate that in light of the evidence they would have allowed the appeal had it been heard, find withdrawing to be an irritating tactic because it causes the sponsor and family members the inconvenience of attending the hearing. (See Withdrawn decisions where Colin Yeo discusses the Home Office’s disturbing tactic of withdrawing decisions in the First-tier Tribunal.)

In such situations, to save themselves embarrassment, sometimes the HOPOs try to step outside the line of fire by misinforming the Tribunal that the appellant’s bundle was served late when in fact it was served a few days early. Upon clarification, the HOPOs undertake to contact the entry clearance post on the day and send in the evidence and skeleton argument and their reasons for withdrawing. That, of course, never happens and even two months after the hearing one finds oneself corresponding with the entry clearance post (and the notorious Mumbai entry clearance staff inform you that they have not received a notice of withdrawal from the Tribunal: so you send them one but that makes no difference).  The Tribunal says that it no longer has any remit but nevertheless very politely provides details about how to complain (as if that would help!) to the Home Office. Ultimately, appellants are left in limbo and entire families suffer because of poor and negligent administration. Maybe one day the powers that be will finally take action to change such third world tendencies in a first world country’s immigration system which is run like a commercial service charging ever increasing sums of money in fees …

What a great way to run a civilised country. The truth is that there are many people in the UK whose spouses’ applications clearly met, even exceeded, the terms set out in the immigration rules but were refused admission anyway.

th-74It is even crazier that in many instances the oppressive system of entry clearance operates by forcing sponsors whose spouses are refused admission go back to live in India or Pakistan (or wherever else). This can cause people, often in the same family, to lose their settlement rights in the UK. There are many Gujarati families in Leicester, where the (Union citizen) head of the family holds a Portuguese passport and the rest of his family members had been settled in the UK, which have suffered such a fate.

So, in the UK, the land of Magna Carta, Mill, the Human Rights Act and nowadays perhaps even the Charter, the way foreigners are treated is quite shocking. With the greatest of respect to the Gulshan Upper Tribunal, the learning on article 8 is not really a problem; whereas the entry clearance managers, the caseworkers, the HOPOs (sometimes the latest LPC batch representing the state in extremely complicated criminal deportation cases!), and the sly probation officers (who write last minute emails to discredit bail sureties) clearly are.

On the other hand, in corrupt and primitive Pakistan, British citizens, who enjoy rights of entry by virtue of visas on arrival, and who may even pay a small charge (US$ 400 per year) to the Federal Government to overstay, are treated with freewheeling respect and dignity. Equally, their cases are repeatedly heard without impediment. In fact the family judge smiles warmly and says:

Welcome to Karachi. Do you like my courtroom? Consider me like your sister. The welfare of your minors, which is paramount, is my only concern. As a general legal principle, the welfare of the minors is with the mother. Don’t worry. I will give you justice.

And Man Did She Ever …

By contrast, in the UK’s robust and transparent legal environment, on the current state of the authorities, in the round the Upper Tribunal thought that:

(a)    The maintenance requirements of E-LTRP.3.1-3.2 stand, although Blake J in R (MM)  v SSHD [2013] EWHC 1900 (Admin) said that they could constitute an unjustified and disproportionate interference with the ability of spouses to live together; he suggested that an appropriate figure may be around £13,400, and highlighted the position of young people and low wage earners caught by the higher figure in the rules;

(b)   After applying the requirements of the Rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them: R (Nagre) [2013] EWHC 720 (Admin);

(c)    The term ”insurmountable obstacles” in provisions such as Section EX.1 are not obstacles which are impossible to surmount: MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC); Izuazu (Article 8 – new rules) [2013] UKUT 45 (IAC); they concern the practical possibilities of relocation. In the absence of such insurmountable obstacles, it is necessary to show other non-standard and particular features demonstrating that removal will be unjustifiably harsh: Nagre.

The Secretary of State addressed the Article 8 family aspects of the respondent’s position through the Rules, in particular EX1, and the private life aspects through paragraph 276ADE. The judge should have done likewise, also paying attention to the Guidance. Thus the judge should have considered the Secretary of State’s conclusion under EX.1 that there were no insurmountable obstacles preventing the continuation of the family life outside the UK. Only if there were arguably good grounds for granting leave to remain outside the rules was it necessary for him for Article 8 purposes to go on to consider whether there were compelling circumstances not sufficiently recognised under the rules.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Article 8, Immigration Rules, Pakistan, Spouses and tagged , , , , . Bookmark the permalink.

2 Responses to No More Freewheeling Article 8

  1. Ariel Sharon says:

    incompetance and mega bureaucracy gone mad !

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