In this case, Elias and Fulford LJJ, Dame Janet Smith allowed Phyllis Gain’s appeal and remitted the matter to the Upper Tribunal in order for the article 8 decision to be remade. Gain, a 76-year old American national worked for the United States Foreign Service between 1965 and 2005. Her daughter’s family, including three daughters, moved to the UK in 2012 because her son-in-law (called Mr Stuck) worked as a minister of religion. Gain had two hip replacements and had fractured her arm. In the USA she moved with her family each time Mr Stuck was transferred to a new church. Her family in the UK had been granted leave to remain until mid-2015 pursuant to the Tier 2 (Minister of Religion) route and hoped to settle in this country. However, Gain’s entry clearance application was refused in June 2012 because she failed to show financial dependence on a relevant relative who was present or settled in the UK and that she did not meet the rules for points-based system dependants as she was not Mr Stuck’s spouse, partner or child.
Gain appealed against the refusal and upon review the Entry Clearance Manager thought that in light of her wealth she could visit the UK to see her family and found a “limited” interference with article 8 ECHR because the decision was justified and proportionate in the interests of maintaining effective immigration control. However, she nevertheless entered the UK as a visitor and in January 2013 she sought to renew her leave on that basis but her application was refused in March 2013 because the decision-maker was (i) not satisfied that as a result of the extension she would not have been in the UK for more than 6 months; and (ii) there were no exceptional circumstances warranting the grant of limited leave outside the rules and the refusal did not breach Gain’s article 8 rights. This decision, too, was appealed.
In the Tribunals
Both appeals were argued and the First-tier judge observed that she could not succeed on the rules in either appeal. Yet, the First-tier Tribunal allowed Gain’s appeal (argued solely on article 8) and the judge found that the Home Office had to demonstrate that it was reasonable for her to return to the US on her own. The judge decided that the Home Office had not discharged that burden and accordingly the refusals were a disproportionate interference with Gain’s family life.
Upon appeal, the Upper Tribunal reversed the First-tier decision because the judge had erred in law by failing to ask the relevant question as regards whether the appellant had shown, on a balance of probabilities, that there would be consequences of sufficient gravity flowing from her removal such as to engage article 8. The First-tier judge applied the wrong test and it was for Gain to demonstrate that the decisions were prima facie unlawful prior to the issue of proportionality being considered.
The Upper Tribunal construed Nagre  EWHC 720 to mean that in considering article 8, the first question is whether the claim is adequately dealt with under the rules, and it is only if this is not the case that the court will go on to consider whether compelling circumstances outside the rules warrant the grant of leave to remain. According to the judge, the rules were the starting point for conducting the balancing exercise in weighing an individual’s interest to remain with her family against the state’s interest in maintaining effective immigration control. Gain did not fall into any of the family reunion or settlement rules and it was hard to believe that there would be “consequences of gravity” if she returned to the USA. It was a difficult case as she had spent most of her life outside her country (in the foreign service) and resettling in the USA would be hard despite her short stay in the UK. However, according to the Upper Tribunal, the First-tier judge had not given the state the margin of respect for its decisions that it was entitled to and Gain’s article 8 claim could not succeed.
Gain contended that the Upper Tribunal judge erred in his view that the rules were the starting point for the decision under article 8 (because they represent Parliament’s assessment of the correct balancing exercise involved in article 8 cases). She argued that the approach was flawed; she could not qualify under the rules because they do not provide for a situation in which a parent of a Tier 2 migrant may be permitted to join her son or daughter.
In light of MM (Lebanon)  EWCA Civ 985, the Home Office accepted that because the rules do not provide a complete code, the proportionality test will be more at large, albeit guided by the Huang  2 AC 167 tests and UK and Strasbourg case law. In Huang, Lord Bingham famously held at para 17 that “it is a premise of the statutory scheme enacted by Parliament that an applicant may fail to qualify under the rules and yet may have a valid claim by virtue of article 8.”
The Home Office conceded that the Upper Tribunal’s consideration of the five questions (of which the first two address whether article 8 is engaged at all and the last two address the issue of proportionality itself) to be asked in article 8 cases pursuant to Razgar  2 AC 368 was flawed because the tribunal had stopped at the second question, as regards whether article 8 was engaged, and had not considered the remaining questions concerning whether any interference was justified.
Allowing the appeal, Fulford LJ held at para 19 that there would have been nothing wrong in the event the Upper Tribunal stopped after the second Razgar question and simply concluded that Gain had not satisfied it that article 8 was engaged at all. In fairness, in its decision the Upper Tribunal did imply the fact that there would be no consequences of gravity if Gain were to return to the USA alone and when posing the second question the judge’s language reflected Lord Bingham’s language in Razgar. On the other hand, the pronouncement was not as unequivocal as it could have been because the Home Office’s submissions had been on proportionality rather than on the prior question of whether article 8 was engaged at all. Taken together with the Home Office’s concession in relation to Razgar, the Upper Tribunal’s decision could not prevail. The Upper Tribunal judge also lead himself astray because of his misconception about the margin of respect that the Home Secretary is entitled to because:
20. … It has been clear ever since Huang that the First-tier Tribunal is not exercising a reviewing function but must determine the issue for itself. Introducing the concept of margin of respect in these circumstances was inappropriate.
In light of the above, the sole live issue on appeal was whether the First-tier judge also erred in law. The point was critical because if so the article 8 decision needed to be remade.
Gain accepted that the First-tier judge failed to accurately describe the relevant test but she maintained that he did not err materially and in the round he properly considered the relevant factors in making the decision on article 8 and proportionality. On proper analysis, the First-tier judge materially erred in law when he purported to identify the relevant test. Rather than the Home Office having to show that it was reasonable for Gain to return to the USA alone, Gain had to show that it would be unreasonable to expect the family to live together in the USA. Failing that she would not discharge the burden, placed on her, of showing that article 8 was engaged. As Fulford LJ explained at para 23:
If it is not shown to be unreasonable to expect the family to live in the US, or if the separation would be only short term, any interference with family life would not necessarily be of sufficient gravity to engage article 8 at all. The first two questions in Razgar would not be satisfied. This, however, has nothing to do with the proportionality test identified in questions 4 and 5 of Razgar, contrary to the understanding of the First-tier judge as reflected in his judgment at para 27. It is only once the material interference with family life is established that the issue of proportionality arises. The First-tier judge confused the two stages in the process, set the wrong test, and thereby misapplied the proportionality principle and the burden of proof. That was essentially the analysis of the Upper Tribunal judge and I agree with it.
Moreover, the First-tier judge failed to attach sufficient weight to the government’s policy underpinning the rules when he considered the article 8 issues. At the time when the decisions were made on Gain’s entry clearance application in 2012 and her leave to remain application in 2013, the approach in the rules was to preclude migrant workers’ ability to bring a wide group of relatives or dependants to the UK to live for an extended period or to settle.
At the time of the first decision on 20 June 2012, Gain did not fall within the parameters relating to eligibility to apply as the spouse, partner and child of a person admitted as a Tier 2 (Minister of Religion). Equally, she did not satisfy paragraph 317 of the rules as a dependent parent or grandparent of someone present and settled in the UK because she was not wholly or mainly financially dependent on the relevant individual present or settled in the UK. By the time a decision was taken on Gain’s application to remain as a visitor in January 2013, Appendix FM had come into force on 9 July 2012 through the amendment to the rules via HC 194.
Fulford LJ endorsed Sales J’s para 8 approach in Nagre that the new rules have come to house work done by the Home Office which lays down in explicit rule form the factors which, according to domestic and Strasbourg jurisprudence, weigh in favour of or against a foreign national’s article 8 claim to remain in the UK. He noted that HC 194 sought to end the routine expectation of settlement in the UK for parents and grandparents aged 65 or over who are financially dependent on a relative here. He recited Beatson LJ’s approach in MH (Sri Lanka)  EWCA Civ 558 that the more particularised new rules require stronger bonds with the UK before leave will be given under them. The Court of Appeal held that under the rules in force at the time of the decisions in Gain’s case:
28. … the Government’s consistent approach was that migrant workers should not be able to bring a wide group of relatives or dependents to the UK to live for an extended period or to settle in this country. This was, potentially, an important consideration when assessing the proportionality of an interference with the appellant’s article 8 rights outside the rules.
However, in Gain’s case the rules did not provide a “complete code” and whilst the proportionality test was “more at large”, the rules still shed light on “the regulatory and policy context which the judge needed to take into account, along with a range of other factors”. The Court of Appeal therefore held that the First-tier judge failed to analyse, in this sense, the legitimate end the Home Office was seeking to achieve. By saying that the interference was incapable of being justified “at all”, the First-tier judge failed to consider the policy of the state to restrict the type of relative who could join a temporary migrant and limit persons who could qualify as dependants.
Fulford LJ held at para 28 that the policy should have formed part of the judge’s reasoning on the issue of proportionality. However, he also explained that the existence of this policy was not in any sense necessarily determinative. Both tribunals had erred in law and therefore the court allowed the appeal on article 8 and remitted the case to the Upper Tribunal so that it could remake the decision on article 8. Fulford LJ considered it “inappropriate … to undertake that exercise.”
This is an interesting case because, owing to her age and illness, Gain tried to use article 8 to get past rules for dependants in the points-based system. The ridiculous rules for dependant relatives of British and settled persons require them to make their application outside the UK. People of Asian and African origin routinely muster up funds, by selling assets, to make such applications for their elderly family members and these applications are almost always refused. Those elderly persons, dependant relatives, who manage to enter the UK and apply for leave to remain on the strength of article 8 are usually expected to show something “exceptional”. The boom in migration over the last five years means different things to different people. Irrespective of the real (economic) truth behind it all, it is quite vulgar policy to discriminate against the elderly and to rip them off. The extortionate fees (£1,906) for dependant relative applications simply do not match the one-page decisions (with one liners on article 8) produced by entry clearance staff.
Gain seems to have been a wise American. It is a much better idea to come to the UK and make the article 8 claim and spend time with your family rather than spending a year for the appeal to be heard and dismissed.