In this case Mr Justice Green held that it is important to avoid a “tick box” mentality in respect of article 8 of the European Convention of Human Rights (ECHR) when considering the exercise of the residual discretion – left open by the immigration rules and the partner and ECHR article 8 guidance of October 2013 – as to whether there were exceptional circumstances justifying a grant of leave to remain. Rather than simply ticking boxes, an overall view needs to be formulated in relation to whether there might be a good arguable case of disproportionality if leave to remain is not granted.
As explained by the court in the very first paragraph, the instant judicial review application concerned spousal rights and it concentrated on:
- The nature and operation of the so-called two part test for the evaluation of article 8 type considerations within the context of immigration law;
- Examining the scope of the concepts of “precarious” rights and “insurmountable obstacles”; and
- Addressing the relevance of “inadvertent errors” on the part of applicants as an article 8 consideration.
Iftikhar Ahmed (A), a Pakistani claimant, launched judicial review proceedings of two decisions of the Secretary of State for the Home Department (SSHD) refusing his application for leave to remain. A entered the UK in 2005 on a spouse visa. His visa was renewed from time to time and he was granted leave until late 2009. Thereafter, A failed to renew his visa until mid-2012 because he incorrectly thought he had been granted settlement. To enhance his chances of getting a visa, A completed a certificate in ESOL skills for life course (but it was not from a recognised institution).
A’s application was refused under the rules and the SSHD said that she had considered his application under article 8.
A advanced his case on six grounds namely that: in contravention of MF Nigeria  UKUT 0093 and Izuazu  UKUT 00045, article 8 was not considered outside the rules; it was important to do so where no right of appeal existed; A and his wife’s rights were not considered; the application of the insurmountable obstacles or exceptionable circumstances test as opposed to a proportionality test was flawed; the proper test – whether it was reasonable in all the circumstances to allow A to remain – had not been applied; insufficient weight had been given to the genuineness of the spousal relationship; and A’s “unfortunate” errors were “genuine” and “should not count against him”.
Subsequent to permission for judicial review being granted, the SSHD conveniently issued a second decision reiterating the refusal of leave because A had overstayed and that his case had also been considered under a proportionality test laid down in appendix FM of the rules and no exceptional circumstances justifying granting leave existed.
Aggrieved, refining his grounds in light of the second decision to respond to the points raised therein, A argued that the SSHD had erred by failing to address article 8 outside the rules – pursuant to the decision in R (Nagre) v SSHD  EWHC 720 (Admin) – and in assessing whether there were insurmountable obstacles to his wife relocating to Pakistan.
Refusing A’s application for judicial review, Green J held as follows.
Under the two-part test laid down in Nagre, when making decisions about article 8’s application, the court had to first consider whether a claimant could gain from the article 8 provisions set out in the rules. In circumstances where the rules could not be met, a general article 8 assessment needed to be made by “applying the criteria established by law” (para 26).
Following the formative decision in MF (Nigeria) v SSHD  EWCA Civ 1192, the rules and the partner and article 8 guidance of October 2013 allow the SSHD discretion to permit exceptional circumstances to be considered and to be assessed from the perspective of proportionality and with Strasbourg jurisprudence in mind. However, in the present case, there was no apparent reason why A’s case could not be assessed within the existing framework of the rules and guidance. Following Sales J’s approach in Nagre, Green J held that article 8 considerations are “embedded” within the rules and guidance and will ordinarily cater “fully” for private and family life issues. The court said:
38. … The rules and the guidance do leave open a discretion to the SSHD to permit exceptional circumstances to be taken into account. The case law makes clear that the concept of exceptional circumstances must be assessed from the perspective of proportionality and with Strasbourg jurisprudence in mind … In short the conventional article 8 proportionality appraisal is one conducted within the framework of the rules and the guidance because they have been structured to isolate the relevant article 8 factors and to enable officials applying the rules to take those considerations on board.
Moreover, conscious of the fact that the expression “exceptional cases” is easily misunderstood, the court explained that:
33. … In particular it is important that officials applying the residual exceptional circumstances policy should be vigilant to avoid a tick box mentality and should bear the policy guidance in mind seeking to stand back after working through the analysis required so as to formulate in an overall manner a view as to whether there might be a good arguable case of disproportionality if leave to remain was not granted.
Although A entered the UK lawfully and received two grants of leave to remain, he had overstayed for 2 years and 8 months and his dithering comprised a significant period of time: a factor to which the SSHD is entitled to have regard to both under the rules and under Strasbourg case law (like Rodrigues Da Silva & Hoogkamer v Netherlands (2007) 44 EHRR 34 for example).
On the point that A had overstayed inadvertently, the SSHD remained firm that – irrespective of the truth of truth behind A’s story – she is not responsible for prompting applicants or cajoling them into action because the onus lay squarely on each applicant to ensure that they knew what the rules are. But Green J developed this point on his own initiative and said that:
42. … I would actually go one step further. It seems to me that in principle it cannot be right that a person can acquire additional rights through inadvertence relative to a person who is diligent and who observes the rules. A rule which rewarded dilatoriness or forgetfulness would create a powerful if not overwhelming perverse incentive on applicants to suffer selective amnesia or carelessness. The fact that the claimant overstayed his permission by a very lengthy period of time, whether through inadvertence or otherwise, is not a factor which can either (at least normally in the absence of some fairly exceptional circumstances – which do not arise here) weigh in his favour or be neutral; it is a fact against the applicant.
Moreover, Green J found that the SSHD acknowledged the genuine and subsisting nature of A’s marriage but the court noted that it was not an absolute right and was “merely a factor to be weighed in the balance” (para 43). Furthermore, the SSHD had also weighed up all the relevant factors to conclude that A’s family was not “precarious” in the Nagre sense; she did not overstate the precariousness of A’s family life and doing so might well have vitiated her decision. In Green J’s judgment the decision was right because it “accurately records the facts and then relies upon those facts as part of an appropriate overall weighing up process” and it also made a detailed evaluation vis-à-vis A’s wife (i.e. her period of residence in the UK and her British citizenship) but concluded in the round that their circumstances did not merit a positive decision in A’s favour (para 44).
Ultimately, the court stressed that if the SSHD had erred this was restricted to applying the law to the facts. However, the second decision was a fact specific assessment of A and his wife’s circumstances which had not been impugned in A’s judicial review application (para 51). No evidence of insurmountable obstacles to A and his wife’s relocation to Pakistan had been adduced. In other words, no facts necessitating consideration outside the rules or guidance had been presented. Indeed, in deciding that no insurmountable obstacles to family life existed, the SSHD had taken into consideration that A’s wife had lived for the majority of her life outside the UK and therefore the decision was prima facie correct because:
- There was no evidence that the desire to live in the UK was anything but a preference;
- A had no children or work in the UK and owned no property here;
- There was no bar to A or his wife seeking employment overseas;
- Both A and his wife should have been aware that A had no lawful right to remain in the UK at the time of his application;
- There was no reason to believe that A had no appropriate ties in Pakistan.
The application therefore failed and the above approach accorded with a “balanced and proportionate assessment arrived at through the application of the relevant principles” (paras 51 – 52).
It is great to learn Green J did conclude that article 8 is not a box ticking exercise. Yet, despite this judicial generosity (from which A and his family availed no relief or remedy), the irony is that now that article 8 is built into the rules article 8 assessments are pretty much about thinking within the box.
Perhaps A could have been more diligent about his immigration status. But to blow things out of proportion by relying on A and his wife not having any work, property or any children is rather extreme. A seemed to have been in the UK for almost nine years without exiting: maybe he would find work if he had been given a visa and could then buy a house. Given that he entered in 2005, had A been properly advised/informed he would be eligible for settlement long before all this happened to him.
Green J may be right about a rule rewarding dilatoriness and selective amnesia but should the date of A’s actual knowledge of his overstaying not be weighed in the balance? Equally, is overstaying for 2 years and 8 months a “very lengthy period of time”? In light of the fact that these days the rules actually reward overstaying for twenty years (a very long time indeed!) in respect of private life, it is probably fair to say that 2 years and 8 months are not a lengthy period of time. So, with the utmost of respect, the learned judge’s approach is too much of a straitjacket.
It is interesting to observe that in appraising the case law on article 8 at paras 25 – 33 of the judgment, the scope of the judge’s analysis in relation to the learning on the right to a private and family life is restricted to a handful of decisions. Of the five authoritative cases cited by Green J, he also seems to have made the controversial decision (rightly dubbed “highly suspect” by practitioners) in SSHD v Gulshan  UKUT 00640 (IAC) central to his rationale. In that decision, of course, Cranston J infamously discouraged engaging in “a freewheeling article 8 analysis, unencumbered by the rules”.
In doing so, and in following the path that he did, could it be that, like Cranston J, Green J too has jettisoned superior jurisprudence and rubber-stamped the new rules by insisting that appendix FM has built into the fabric of the rules almost all article 8 type considerations?
This may be an interesting judgment to read. But it offers nothing more than lip service to article 8 claims. Redolent of the minimalist standard within the European human rights culture, it offers no relief whatsoever to A or his wife.
Green J’s message is clear enough though: the family can go back to Pakistan from where they came. A decision made on Birmingham’s Bull Street indeed.