Kaur v Secretary of State for the Home Department [2023] EWCA Civ 1353 (17 November 2023)
In this case, the Court of Appeal remitted to the Upper Tribunal an Indian national’s claim based on the right to respect for family life under article 8 of the ECHR where the original Judge had failed to conduct a proper proportionality assessment or balancing exercise, or to explain the weight she had attributed to the factors relevant to her refusal of the claim. Judge Gleeson had also materially erred in stating that the applicant and her husband were both Indian citizens, whereas the husband was a naturalised British citizen and there was no evidence that he held dual citizenship. Gurdeep Kaur was granted leave to remain as a student until 2012 after coming to the UK in 2008 on a Working Holiday Maker Visa. She met Harjinder Singh in 2009 who entered the UK clandestinely and—when they met—he had no lawful status but was granted ILR on the basis on 14 years unlawful residence and then became a naturalised British citizen in 2012. The couple had married in 2010 and in 2013, Mrs Kaur was granted leave to remain as a spouse. In making the application, she had relied upon a fraudulently obtained English language certificate from the Educational Testing Service (ETS). Her leave to remain was cancelled on the basis that she had made false representations (i.e. deception) in her application and she challenged the cancellation decision, asserting her claim under article 8. The First-tier Tribunal dismissed her challenge.
She appealed to the Upper Tribunal, where she and her husband gave evidence that they had attempted to undergo IVF treatment but were prevented from continuing because the SSHD held her passport, and that there would be family disapproval if they returned to India because of their marriage. The Upper Tribunal was of the view that the SSHD had been entitled to treat her as someone who had used deception to obtain an ETS certificate and she could not bring herself within article 8 since there was no evidence of the family disapproval relied upon and that there were no significant obstacles to her reintegration in India on her return, either alone or with her husband. The Upper Tribunal identified that two issues arose for decision. First of all, whether indeed the SSHD was entitled to reach the conclusion that she did on the deception issue. Second, whether Mrs Kaur’s removal now would be disproportionate under article 8 even if the deception allegation was made out. She conducted a thorough review of the evidence. Although it concentrated mainly on the deception issue, Judge Gleeson also recorded relatively limited evidence that could be relevant to the article 8 issue. She dismissed Mrs Kaur’s case. She found against Mrs Kaur on the deception issue, concluding that the SSHD did not err in treating Mrs Kaur as a someone who had used deception by using a proxy test taker at an acknowledged “fraud factory”. There was no appeal against that finding.
Issue
The sole issue on this appeal was whether Judge Gleeson erred materially in her approach to and conclusions regarding Mrs Kaur’s article 8 claim outside of the rules.
The Court of Appeal
Holroyde, Baker and Stuart-Smith LJJ allowed the appeal.
The court first addressed consideration of Mrs Kaur’s article 8 claim outside Immigration Rules and then went on to shed light on the Judge’s approach to relevant factors and then examined the proportionality assessment. It was not necessary for the court to go into any further detail about the evidence concerning the deception issue save for one limited area which she said may be relevant to the outcome of the article 8 issue. She submitted there was no need for her to have submitted the fraudulent ETS certificate as her UK NARIC letter would have satisfied the English language requirement. Somewhat optimistically, it was argued that the ETS certificate was thus irrelevant to the decision to grant her leave to remain.
(i) Article 8 claim outside rules
As to Mrs Kaur’s article 8 claim outside rules, it was accepted before the Court of Appeal that the effect of the adverse finding on the deception issue is that she could not meet the suitability requirement under Appendix FM of the Immigration Rules. Hence, pursuant to provision S-LTR.2.1, the application would “normally” be refused. Stuart-Smith LJ noted that when determining an article 8 claim outside the rules, policy is set out in section 9 of the document entitled “Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0b/ Family Life (as a Partner or Parent) and Private Life: 10-Year Routes”, and he said that:
19. … In doing so, the decision maker must consider all relevant factors raised by the applicant. “Exceptional” does not mean that the circumstances must be “unusual” or “unique”. It means circumstances in which refusal would result in unjustifiably harsh consequences for the individual or their family such that refusal of the application would not be proportionate under Article 8.
20. In determining whether there are exceptional circumstances, the decision-maker must consider all relevant factors raised by the applicant and weigh them against the public interest under Article 8. Examples of relevant factors are listed in the Instructions and include: the nature of the family relationships involved, such as the length of the applicant’s marriage; the immigration status of the applicant and their family members; the nationalities of the applicant and their family members; how long the applicant and their family members have lawfully lived in the UK; the likely circumstances the applicant’s partner would face in the applicant’s country of return; and whether there are any factors which might increase the public interest in removal, for example where the applicant has failed to meet the suitability requirements because of deception.
Guidance on the application of these principles has been given by both the Supreme Court and the Court of Appeal. The court referred to R (Agyarko) v SSHD [2017] UKSC 11, see here and GM (Sri Lanka) v SSHD [2019] EWCA Civ 1630, see here and Stuart-Smith LJ followed the approach in these important cases. No doubt exists that national authorities are required to carry out a proportionality assessment and have a margin of appreciation that is real and important but not unlimited when setting the weighting to be applied to various factors when carrying out the assessment. The court must accord “considerable weight” to the SSHD’s policy at a “general level”, which includes the policy weightings set out in section 117B of the Nationality, Immigration and Asylum Act 2002 and as held in GM (Sri Lanka) the list of relevant factors to consider in the proportionality assessment is not closed and there is in principle no limit to the factors which might, in a given case be relevant to an evaluation under article 8, which is a fact sensitive exercise. Where the issue is raised on the merits on an appeal, as it was here in the Upper Tribunal, the court or tribunal should (subject to section 85 of the 2002 Act) carry out the assessment having regard to the relevant facts as at the time of its decision rather than that of the original decision maker.
(ii) Judge’s approach to relevant factors
The Judge had been entitled to reject Kaur’s case that family disapproval was a relevant factor. However, she had made no finding about the accuracy of the account that she was unable to receive IVF treatment because of the absence of her passport. Further, nor had she explained any weight attributed to that factor, or to her statement that there were no significant obstacles to Kaur’s reintegration in India. Moreover, the Judge had stated that there were no insurmountable obstacles, without explaining that conclusion or the weight attributed to it and Stuart-Smith LJ held that:
27. … Once again, there is no reasoning to explain this conclusion and no explanation of the weight that is being attached to it. What does appear, however, is that the conclusion is influenced by the UTJ’s statement that both the Appellant and Harvinder Singh are citizens of India. This statement was wrong since there was documentary evidence (in the form of his United Kingdom Passport) that Harvinder Singh is a British national and no evidence that he held dual United Kingdom/Indian citizenship. To my mind, this was a material error because there was no basis for assuming that Harvinder Singh would be able to live in India with the Appellant as if he were an Indian citizen.
Next, the court examined the issue of proportionality.
(iii) Proportionality assessment
The Court of Appeal also observed that the Judge had failed to address factors potentially relevant to a proportionality assessment, including the length of Mrs Kaur’s marriage, the nature of her relationship with her husband and the husband’s naturalised status. Overall, Stuart-Smith LJ held that:
27. … There is no proper consideration of the difficulties that Harvinder Singh may face if the Appellant were removed to India or whether his difficulties in turn would create or exacerbate the difficulties that the Appellant herself would face. On the other side of the coin, there is no mention of the finding of deception and what weight should be given to that fact. This is not necessarily a comprehensive catalogue of the potentially relevant matters that are not mentioned and, accordingly, cannot be seen to have been brought into account.
28. Second, there is no attempt in [73] or [74] (or elsewhere) to conduct a balancing exercise that weighs the features on either side of the argument or explains the ultimate conclusion that the Appellant’s Article 8 claim fails. Typically such balancing exercises may be done by drawing up a “balance sheet”, which has the twin advantages of clarity of method and transparency of process; but the manner and form in which the exercise is done is not critical, provided that it can be seen (a) what features have been weighed in the balance and (b) why the balance has come down in favour of one side or the other. That is absent in the present case.
The article 8 claim was therefore remitted to the Upper Tribunal for a fresh determination on the basis that both the deception claim and also the factual issue of the alleged social difficulties based upon the families’ disapproval of the marriage had been resolved against Mrs Kaur. Stuart-Smith LJ rejected the SSHD’s subsidiary submission that the outcome of a properly conducted proportionality assessment would necessarily be that her article 8 claim must fail. He identified matters that can (at least in theory) be brought into account in support of a submission that there are exceptional circumstances in this case; and those matters are not necessarily exhaustive. However, the court found it inappropriate to say anything that would appear to pre-judge the approach to the assessment of those matters or the outcome of a properly conducted proportionality assessment. It was inappropriate for him to say anything about the relevance of the matters that were the subject of section 117B of the 2002 Act. The court thus allowed the appeal and quashed the determination of the Upper Tribunal in relation to Mrs Kaur’s article 8 claim. The matter was remitted to the Upper Tribunal.
Comment
The Court of Appeal did not dwell on the decided authorities and Stuart-Smith LJ only found it necessary to outline that an article 8 evaluation was a fact-sensitive exercise and there was, in principle, no limit to the factors potentially relevant to it. Overall, the list of relevant factors to consider in the proportionality assessment is not closed.
The Judge had made a mistake of fact about the British nationality of Mrs Kaur’s spouse, Harvinder Singh and she failed to explain what weight the finding of deception should be given. Further, the Judge failed to conduct a balancing exercise that weighed the features on either side of the argument. No doubt, the new Judge will conduct a balancing exercise by drawing up a balance sheet and the new tribunal will be alive to the Court of Appeal’s judgment so as to avoid falling into error.
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