The ‘Unvarnished’ Article 8: Haleemudeen Wrongly Decided

Singh v The Secretary of State for the Home Department [2015] EWCA Civ 74 (12 February 2015)

In this case on the interaction between the old rules and the new rules, the Court of Appeal (Arden, Lewison and Underhill LJJ) finally shed much needed light on the problems thrown up by its earlier conflicting decisions in Edgehill [2014] EWCA Civ 402 and Haleemudeen [2014] EWCA Civ 558 regarding which article 8 regime should apply in a case where an application for leave to remain was made prior to 9 July 2012 but the decision was made later. The court also addressed an important issue about precisely how the two-stage approach should operate. It unanimously dismissed Mr Singh and Ms Khalid’s appeals but did not conceal its annoyance with the “rebarbative drafting” of the immigration rules and urged the government to consider making their drafting and presentation more accessible. The court inclined to the view that the National Archive was an insufficient resource to keep track of the immigration rules and considered it essential for the Home Office to produce an archive of all past consolidated versions of the rules in a form that allows everyone to know their content at any given date.

Because of the near impossibility of keeping abreast of “the kaleidoscopic changes” in the rules, Underhill LJ unsurprisingly remarked at para 57: “I pity whoever has to undertake the task.” Statement of Changes HC 194 and HC 565 remained the court’s point of departure. It noted that prior to cutover to the new rules on 9 July 2012, in its “unvarnished” form, issues relating to article 8 ECHR were governed entirely by case law whereas following transition to the new regime private and family life came to be detailed in the rules in paragraph 276ADE and Appendix FM. The court held that Haleemudeen was wrongly decided but that HC 565, which clarified the drafting of some aspects of Appendix FM and paragraphs 276A-276BE and made additional transitional provisions as to the operation of parts 7 and 8, mostly saved the day for the Home Office.

Context

Mr Singh

Singh, an Indian national, entered the UK in 1997 at age 22 and claimed asylum. His claim was refused but he remained illegally despite being notified of his liability to removal. In 2006, he made an application for indefinite leave to remain on the basis of the ten years’ continuous lawful residence provision, paragraph 276B (i) of the rules at the time, and also under article 8. His application was refused six years later in October 2012 – after the new rules came into force – because his residence had been unlawful. He was also refused leave to remain on the 14-year rule because he had received formal notice of liability to removal and could not avail the benefit of paragraph 276ADE because he was unable to satisfy the 20-year milestone.

The First-tier Tribunal dismissed the appeal on the rules and on article 8 because his removal to India would not be disproportionate. He could use the skills he acquired in the UK and put his house up for sale to relocate. His partner was an overstayer and their child was an Indian national without lawful UK status. Since the couple had another child in India, who lived with Singh’s brother-in-law, moving there would reunite them with their family. Singh’s further appeal to the Upper Tribunal, on the basis that the First-tier Tribunal needed to consider article 8 in its unvarnished form, failed and the matter entered the Court of Appeal on the basis of the Edgehill argument that no reference to the new rules should have been made at all because they were not in force at the date of Singh’s original application. The court expedited the appeal so as to iron out the tension between Edgehill and the later decision in Haleemudeen, which contains the contrary rationale.

Ms Khalid

A Pakistani national born on 13 April 1990, Khalid entered the UK in June 2007 for six-months as a visitor. She overstayed and married a British national in October 2009. In January 2012, contending that her case should be dealt with in-country because expecting her to go abroad and seek entry clearance would entail disproportionality, she applied for leave to remain on article 8 but not on the old rules. She was refused leave in May 2012 but she initiated judicial review proceedings which were “settled”. However, in April 2013, a fresh refusal followed and explained that she had no claim under the rules and that her article 8 claim fell to be considered under Appendix FM and paragraph 276ADE. It was said that she had not evidentially demonstrated any insurmountable obstacles to continuing her family life with her husband outside the UK.

Her judicial review claim was dismissed because the court felt that her case fell precisely within the category recognised by Sales J, in Nagre [2013] EWHC 7200 (Admin), as not demonstrating any arguable case outside of the rules. She was an adult with a precarious immigration history and forged her relationships with the knowledge of her unlawful status. There was nothing exceptional or compelling about her case. After a monumental struggle, she was given permission to appeal by Gloster LJ because (i) it was wrong for the Home Office to rely on the new rules because her application pre-dated 9 July 2012; (ii) Nagre had been superseded by MM (Lebanon) [2014] EWCA Civ 985; and (iii) the Home Office had been obliged as a matter of law to consider her article 8 rights outside the rules in light of Ganesabalan [2014] EWHC 2712 (Admin).

Issues

As noted above, these appeals turned on two points:

  • Issue A: Do the new rules apply to applications made before 9 July 2012?
  • Issue B: The failure to apply the two-stage approach.

Decision on Law

Issue A

The court rejected the distinction that Edgehill merely concerned whether the appellants could rely on the fourteen-year rule in the old rules despite it being substituted by a 20-year period in the new rules whereas Haleemudeen involved the broader question of whether, when considering after 9 July 2012 applications made before that date, the court could take into account in assessing the proportionality of removal the Home Office’s assessment as reflected in the new rules. Regretting that in Haleemudeen the court was not referred to Edgehill, Underhill LJ held that:

40. … I believe that it necessarily follows from Jackson LJ’s reasoning in Edgehill that the provisions of the new rules cannot be applied to pending applications for any purpose.

41. If the outcome on issue (A) depended on making a choice between Edgehill and Haleemudeen I would follow Edgehill. Although formally the situation may fall within the first exception in Young v Bristol Aeroplane Co. Ltd. [1944] KB 718, in that we are confronted by two conflicting decisions of this Court, the truth is that Haleemudeen was decided per incuriam because of the failure to draw the Court’s attention to the implementation provision; and in those circumstances I think that the better view is that we should treat ourselves as bound by Edgehill. But even if we were free to make a choice, I find Jackson LJ’s reasoning persuasive. The language of the implementation provision would, as he says, convey to any ordinary person who consulted the Statement of Changes that he or she could ignore it if their application was made prior to 9 July 2012.

The court roundly rejected the argument that the implementation provision in HC194 (which expressly stated that the new rules would not apply to old applications) was capable of being overridden or trumped by paragraph A279 which said that the suitability provisions of Appendix FM shall apply “where a decision is made on or after 9 July 2012, irrespective of the date the application was made”. For Underhill LJ, the point was neither here nor there because nothing turned on suitability in the present cases and the implementation provision – which does not feature in Beatson LJ’s judgment in Haleemudeen – prevailed because it communicates to the reader “that if his or her application pre-dates 9 July 2012 it is unnecessary to read any further.”

As regards issue A, the court made the following findings.

First, when HC 194 first entered into force on 9 July 2012, the Home Office was not entitled to take into account the provisions of the new rules (either directly or by treating them as a statement of current policy) when making decisions on private or family life applications made prior to that date but not yet decided. That is because, as decided in Edgehill, “the implementation provision” displaces the usual principle in Odelola [2009] UKHL 25.

Second, the above position was altered by HC 565 – specifically by the introduction of the new paragraph A277C – with effect from 6 September 2012. From then on, the Home Office was entitled to take into account the provisions of Appendix FM and paragraphs 276ADE–276DH in deciding private or family life applications even if they were made prior to 9 July 2012. The reason for this was that HC 565 has no equivalent to the implementation provision in HC 194. Therefore in accordance with the principle in Odelola, a case where there was no express provision that the old rules would continue to govern applications made before the rules changed, HC 565 applies to applications pending as at the date of its implementation. Consequently, the state of the law established in Edgehill only applied to decisions made in the two-month window between 9 July and 6 September 2012. (Paragraph A277C explained that where the Home Office is considering any application to which the provisions of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of the rules did not already apply, it will also do so in line with those provisions.)

Third, the decisions in Singh and Khalid’s cases did not fall within that window and therefore the Home Office was entitled to apply the new rules in reaching those decisions and in refusing their respective applications.

Issue B

The second point involved the interpretation, indeed the validity, of the approach taken in Izuazu [2013] UKUT 45 (IAC) and Nagre and whether para 129 of MM (Lebanon) – where Aikens LJ ostensibly questioned the utility of imposing an intermediary test of an arguable case on good grounds for an article 8 claim to be considered outside the rules – had the effect of impeaching Sales J’s point (at para 30) about a full separate consideration of article 8 not always being necessary. Underhill LJ held at para 64 that Aikens LJ was not quarrelling with the substantial point made by Sales J. Thus, the instant court considered the point invalidating the virtues of Nagre to be “a mis-reading of Aikens LJ’s observation” and according to Underhill LJ in MM (Lebanon) the court:

64. … was simply saying that it was unnecessary for the decision-maker, in approaching the “second stage”, to have to decide first whether it was arguable that there was a good article 8 claim outside the rules – that being what he calls “the intermediary test” – and then, if he decided that it was arguable, to go on to assess that claim: he should simply decide whether there was a good claim outside the rules or not. I am not sure that I would myself have read Sales J as intending to impose any such intermediary requirement, though I agree with Aikens LJ that if he was it represents an unnecessary refinement. But what matters is that there is nothing in Aikens LJ’s comment which casts doubt on Sales J’s basic point that there is no need to conduct a full separate examination of article 8 outside the rules where, in the circumstances of a particular case, all the issues have been addressed in the consideration under the rules.

In Ganesabalan no consideration was provided to article 8 outside the rules and the application was refused purely on the basis of paragraph 276ADE and Appendix FM. The court rejected the submission that para 30 of Nagre made consideration outside the rules unnecessary and Mr Fordham QC – who held that if an article 8 claim fails at the first stage, there is always a “second stage” in which the Home Office must consider the exercise of discretion outside the rules and must be in a position to demonstrate that it has done so – quashed the decision. In the instant case, at para 66 Underhill LJ expressed some concern about immigration lawyers seeking “to exploit even the faintest ambiguity” and he made the following three observations regarding Mr Fordham’s analysis:

  • Mr Fordham’s statement that “there is always a second stage” does not in any way qualify what Sales J says at para 30 of his judgment. Sales J’s point is that the second stage can, in an appropriate case, be satisfied by the decision-maker concluding that any family life or private life issues raised by the claim have already been addressed at the first stage – in which case obviously there is no need to go through it all again. Mr Fordham’s point is that that is a conclusion which must be reached as a matter of conscious decision in any given case and cannot simply be assumed. Underhill LJ agreed with both analyses.
  • The statement that the decision-maker “must be in a position to demonstrate” that he or she has given the necessary consideration is simply a reflection of the ordinary obligation to record a material decision. If the decision-maker’s view is straightforwardly that all the article 8 issues raised have been addressed in determining the claim under the rules, all that is necessary is, as Sales J says, to say so.
  • It may not be entirely apt to describe a decision as to whether article 8 requires that an applicant be given leave outside the rules as an “exercise of discretion”.

The court therefore ultimately went to hold at para 67 that MM (Lebanon) and Ganesabalan do not undermine the point made by Sales J in para 30 of Nagre which together with his endorsement of the approach in Izuazu remains good law. Instead, they merely established that the decision-maker was obliged to consciously conclude, and record, that all the article 8 issues had been addressed in the consideration provided under the new rules. Thus, if it was clear that any article 8 issues had been adequately addressed by reference to the new rules, it was unnecessary to conduct a full separate consideration of article 8.

Critique of New Rules

Notably, to compliment its attempts to save face by expressing regrets about Beatson LJ’s omission to consider the implementation provision in HC194, the court clarified in a footnote that, because of its failure to use conventional sequential paragraph numbers, Appendix FM is “an idiosyncratic system which makes it peculiarly clumsy both to navigate and to refer to”.

Underhill LJ did “not doubt that some subtle intelligence is at work” but he was extremely puzzled by the use of the initial “A” before some of the paragraph numbers, such as paragraphs A277-A280, introduced by HC 194. Inevitably, the court lamented: “the system is quite opaque to the uninitiated and adds to the difficulty of finding one’s way around.” And it expressed its concern that “responsible officials in the Home Office have at least some of the same difficulties in keeping up with the consequences of the kaleidoscopic changes in their own rules as the rest of us do.”

However, criticism alone did not aid the present appellants.

Decision in Individual Cases

Singh

Singh’s case fell within Jackson LJ’s caveat at para 33 of Edgehill that a decision should not be invalidated simply by a passing reference to paragraph 276ADE: it would only be vitiated if the decision-maker had treated its provisions “as a consideration materially affecting the decision”. Singh’s was a simple case and both tiers of the tribunal had correctly decided that he had no article 8 claim outside the rules.

Khalid

The discursive, albeit pleaded as “exceptional”, facts of Khalid’s case – that she was a minor when she first overstayed, that she had no one to return to in Pakistan and that her husband was British – did not make the decision unreasonable although, like Ganesabalan, it treated the fact that she could not satisfy the requirements of the new rules as definitive. Underhill LJ concurred with Mr Fordham’s analysis in Ganesabalan that in an article 8 case a decision-maker must always consider whether the first-stage consideration under paragraph 276ADE and/or Appendix FM addresses all the article 8 issues raised, “even if the result of that consideration is simply a statement that it does.”

On the other hand, the court remained alive to the longstanding principles established in Miss Behavin’ Ltd [2007] UKHL 19 and Nasseri [2009] UKHL 23 that in human rights cases, the court’s focus is directed to the outcome of the decision making process in question, rather than the process itself. Accordingly, Khalid either did or did not have an arguable article 8 claim outside the rules. She could not show a substantive breach of her article 8 rights and hence her claim was hopeless. Since she had not been given permission to challenge the finding below that she had no arguable case on article 8 outside the rules, in line with Treebhowan [2012] EWCA Civ 1054 it was not necessarily disproportionate for a spouse such as herself to be required to leave the UK to obtain entry clearance from abroad.

Arden LJ

Her Ladyship agreed that the appeals should be dismissed, albeit with the caveat that Edgehill concerned a narrow issue whereas Haleemudeen concerned a broader question regarding the proportionality of removal within the meaning of the new rules. She felt that Jackson LJ’s approach in Edgehill was not ubiquitous in relation to never relying on the new rules in determining an application of the type mentioned in the implementation provision.

Adren LJ thus urged circumspection about those parts of the old rules which were not expressly considered by the instant court so that they could be left “open to argument in an appropriate case when they arise”. She was equally concerned that Edgehill was silent on the meaning of the concept of “public interest” which needed to be interpreted dynamically because it “means the public interest as the decision-maker properly considers it to be at the time of her decision on the application.” Adren LJ therefore reasoned that it was too onerous for the Home Secretary to have one view of the public interest for the purposes of the current rules and another view for the purposes of the former rules.

Comment

Both the Court of Appeal at para 64 and the Upper Tribunal in Oludoyi IJR [2014] UKUT 539 (IAC) (see here) at para 23 rejected the argument that para 129 of MM (Lebanon) (see here) always mandates a full five-step consideration of article 8. On the other hand, both Underhill LJ and Gill UTJ seem to be of the view that, despite the need for a claimant to “demonstrate, as a preliminary to a consideration outside the rule that he has an arguable case that there may be good grounds for granting leave to remain outside the rules”, there is nothing in Nagre that is in reality fatal to a “good” article 8 claim.

But, despite its contrary intention, it is still possible to take Underhill LJ’s decision out of context and construe it as favouring the Home Office. Hopefully, it will not be used to breathe new life into misunderstandings about Nagre and related authorities like Gulshan [2013] UKUT 640 (IAC) (see here) which are often used by the Home Office as a trump card in article 8 cases.

Oddly, the Court of Appeal seems to have accepted at face value the assertion that since May 2013 decision letters include an express consideration of article 8 “outside the rules” in all private and family life cases. Strictly speaking this is not true. It is even more inexplicable that the Haleemudeen court was oblivious to its own decision in Edgehill, given a whole month before (right under the noses of Sullivan, Beatson and Sharp LJJ), on the important issue of the retrospective application of the new rules. The dilemma now, of course, is that so much judicial ink has been spilled on the debate that the importance of the court’s message about the hardships of navigating through the opaque new rules appears quite diminished. If anything, in light of its own oversight in Haleemudeen, blaming the Home Office for everything clearly indicates the court’s hubris. Given that the judiciary demands nothing less than perfection from immigration lawyers, especially in the field of judicial review, the Court of Appeal really had no business making the mistake that it did in Haleemudeen. Perhaps, it ought to be referred to the Supreme Court for correction and training!

It is fair comment that looking up the immigration rules is much worse than finding a needle in a haystack. However, the sad truth for the Court of Appeal is that, in comparison to its verbose, cryptic and conflicting judgments, the Home Office, Gov.uk and the National Archives appear to be doing a much better job of providing the public with historic and current versions of the rules. But if, in compliance with the court’s wishes, things can be improved further, then this will certainly be a welcome development; one that will no doubt be met with open arms by all quarters. Finally, it will be interesting to see what reliefs, if any, will be provided to persons assisted by Edgehill in the two-month window between 9 July and 6 September 2012?

About mkp

Advocate High Courts of Pakistan
This entry was posted in Appendix FM, Article 8, Cases, ECHR, Immigration Rules, Proportionality and tagged , , . Bookmark the permalink.

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