Under Zoumbas, Tribunal Cases Can’t Contradict Nagre

Javed & Ors v Secretary of State for the Home Department [2015] EWHC 390 (Admin) (20 February 2015)

This judicial review claim concerned a six member Pakistani family. Together with his wife, two sons and two daughters, Mr Javed arrived in the UK in 2006 on a five-year entry clearance as an exempt diplomat working as a cashier at the Pakistan High Commission. The family’s leave got curtailed because Mr Javed left his job. In 2011, the family’s applications for leave to remain outside the rules were refused. The appeals were dismissed and appeal rights became exhausted in March 2012. Fresh applications for leave to remain outside the rules followed in March 2013 but were refused without a right of appeal. The decisions were challenged by way of judicial review and permission was granted on the papers. Supplementary decision letters, dealing specifically with the article 8 claim (which was considered to be arguable by the court) were subsequently issued in 2014 and confirmed the refusals. The claim for judicial review was dismissed because the family did not enter with a view to settlement, they resided lawfully for nearly four years but thereafter their residence became precarious.

The fact that they became resident for over eight years because of judicial review proceedings did not aid them. In dismissing the claim for judicial review, Philip Mott QC held that neither JO & Others [2014] UKUT 00517 (IAC) nor Oludoyi [2014] UKUT 00539 (IAC) (see here) put into doubt the practical guidance imparted by Sales J in Nagre [2013] EWHC 720 (Admin) in relation to the extent of detail required in a decision letter. The court was of the view that if they did cast doubt on Nagre, the two tribunal authorities would be in conflict with the decision of the Supreme Court in Zoumbas [2013] UKSC 74. Irregularities in the decision letters were considered as a preliminary issue but nothing substantive in favour of the claimants could be developed out of such points.

Overview

Philip Mott QC observed some confusion about exactly who gave evidence before the First-tier Tribunal in 2012 but thought that the ambiguity was immaterial because the accounts were found by the judge to be manifestly credible. It was accepted that Javed was unaware that the family’s leave had been curtailed because he left his job. The children did not wish to return to Pakistan and were well settled in the UK whereas Javed said that that but for the children he and his wife would be happy to return to Pakistan. The First-tier judge found evidence of private life in the children’s case but considered the parents’ private life to be very limited and superficial. The tribunal found that there would be no interference with family life because it existed entirely within the nuclear family unit and all members would be returned to Pakistan together.

There were no linguistic barriers confronting the children upon return in Pakistan and they would have similar opportunities there. In 2012, the First-tier Tribunal thus concluded that there would be no disproportionate interference with family or private life for the whole family to be returned to Pakistan. Before Philip Mott QC, it was argued that the position in 2013 was different as the youngest child had been in the UK for seven years but was under eighteen when the supplementary decision letters were produced. On the other hand, it was conceded that the relevant date was the date of application, in March 2013, when the youngest child had resided in the UK for only six and a half years, having been just seven years old when she arrived. No “near miss” argument was advanced and in line with Patel & Others [2013] UKSC 72 the court reminded the parties that a near miss is incapable of providing substance to a human rights case which is otherwise lacking in merit.

Susceptible to challenge, the 2013 decision letters applied Appendix FM and Paragraph 276ADE to the cases but despite being written subsequent to Nagre failed to indicate any consideration of the overriding provisions of article 8, or whether the cases were even arguably “exceptional”. Permission was granted because of the “exceptional” mixture of the length of residence of the two youngest children, the family matrix, community and educational ties, and the First-tier Tribunal’s finding that Javed did not deliberately act in breach of immigration law by delaying his first application for leave to remain.

The supplementary decision letters were therefore written in 2014 to deal both with the overriding provisions of article 8 and the duties imposed on the decision-maker within the meaning of section 55 of the Borders, Citizenship and Immigration Act 2009. The approach taken in the supplementary decisions was at the heart of Javed’s judicial review case.

Held

As noted above, the court held that because of Zoumbas neither JO & Others nor Oludoyi put into doubt the practical guidance imparted by Sales J in Nagre in relation to the extent of detail required in a decision letter. Moreover, pursuant to the Court of Appeal’s decision in MF (Nigeria) [2013] EWCA Civ 1192, Philip Mott QC observed at para 12 that the use of the term “exceptional circumstances” in Home Office guidance (i.e. Criminality Guidance for Article 8 ECHR Cases) was not an attempt to revive the discredited exceptionality test. Rather, as required by the Strasbourg jurisprudence, “exceptional circumstances” involve the application of the proportionality test. Referring to Nagre with approval, Sir John Dyson MR did not find it helpful to mull over whether the test was a one-stage or a two-stage affair and he held that although the new rules were a complete code, a two-stage approach was nevertheless required to ensure that exceptional cases did not get overlooked. Philip Mott QC observed that neither the family life nor the private life rules contain “exceptional circumstances” provisions but references in the guidance to the expression is a part of the overall code and that the overriding provisions of article 8 involve the application of the proportionality test.

The court held that the ostensible conflict between the tribunal authorities in JO & Others and Oludoyi and Nagre is laid to rest by Zoumbas where Lord Hodge JSC inter alia held that (i) section 55 does not require the decision-maker in every case to consider the children’s best interests first and then to address other considerations which might outweigh those interests; (ii) a decision letter containing brief conclusions does not necessarily mean that there has not been careful consideration; (iii) the decision-maker does not have to record and deal with every piece of evidence in her decision letter and; (iv) caeteris paribus (other things being equal) it may be in a child’s best interests to stay in the UK, but other things are not equal where the child and its parents are not British citizens.

The family did not complain about the decisions on the new rules and took issue with the supplementary decisions. In dealing with Javed’s youngest daughter (aged 15), the court held that the decision-maker had behaved perfectly reasonably by rejecting the proposition that she did not know any language other than English. It was similarly correct that she would still have family ties in Pakistan, and that her upbringing in a Pakistani family unit will have kept her aware to some extent of the culture of that country. Both of Javed’s sons spent the majority of their lives in Pakistan and had roots and family there. If they wanted to continue their education in the UK, they remained at liberty to apply for a student visa. No reasons allowing the family to remain indefinitely were discernible. Rather, the short supplementary decision letters in relation to them were justified as no questions of exceptionality arose warranting the grant of leave outside the rules on article 8 grounds.

The court therefore held at para 34 that:

This was a family which arrived in the UK because of the father’s job, and obtained exemption from the normal immigration requirements for that reason. It was not an entry with a view to settlement, although an application for leave to remain could always be made. Their lawful residence continued for just under four years only, although they believed it was lawful for five. Thereafter their residence has been precarious, during a period of appeal and then without status at all. The fact that as a result of these proceedings they have now been resident for over eight years does not assist them. In my judgment there is nothing in the circumstances existing at the time of the most recent application which changed the assessment of the FtT the previous year. Equally, there is nothing to require a greater degree of analysis or detail in the supplementary decision letters dealing with the overriding provisions of article 8 and section 55 of the 2009 Act.

Comment

Despite the bad news for this Pakistani family it is refreshing to learn that permission was granted on the papers after the case, one which was clearly without “exceptional” hallmarks, had already been through the tribunal system. But that is probably because the famous human rights lawyer Ben Emmerson QC granted permission. He is a far cry from Mr Ockelton, Cranston J, Sir John Thomas or an eccentric tribunal judge. I find it quite strange that the Javed family opted to make further applications for leave to remain outside the rules in March 2013 after their appeal rights became exhausted in March 2012. Surely, those advising the family had a duty to inform them that it is hard to win on article 8 even in the best of cases, i.e. those involving children born in the UK with seven years residence and British cousins, aunties, uncles and so forth.

As a professional cashier, with the benefit of hindsight, Mr Javed must now feel that he should have returned home rather earlier without wasting all the money that he has poured down the drain because of litigation. He really must have burned a hole in his pocket. His case makes an interesting comparison with the other Mr Javed, a student, who only recently won his judicial review case.

About mkp

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

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