‘Full Coverage’: Family Life, Exceptionality and the Rules by Asad Ali Khan (artikel 8 EVRM familieleven volgens de Britten)

Posted on May 20, 2015 by mkp

The Secretary of State for the Home Department v SS (Congo) & Ors [2015] EWCA Civ 387 (23 April 2015)
In these cases relating to the admission of spouses under Appendix FM, the Court of Appeal (Richards, Underhill and Sales LJJ) unanimously allowed the Home Office’s appeals against the decisions of the Upper Tribunal in the cases of SS (Congo), BM (Afghanistan), BB (Pakistan) and FA (Somalia). Their Lordships also refused to extend time for the Home Office to apply for permission to appeal in the cases of AC (Canada) and KG (India). The court held that compelling circumstances needed to be demonstrated in order to qualify for the grant of leave to enter outside the Immigration Rules (pursuant to residual discretion) on the basis of article 8 where an application for admission to the UK as the spouse or family member of a British citizen or refugee failed to meet the minimum income or evidence of income requirements under the rules. Richards LJ stressed the point that the use of the phrase “exceptional circumstances” in instructions to officials does not make the leave to remain and enter provisions of the rules into a complete code but he equally explained that nothing turns on the distinction, one which is clearly without a difference.
On the slippery subject of the codification of article 8 within the rules, Richards LJ held that the concept of a “complete code” should not be given undue weight by the courts. The question on appeal was whether the decisions of the First-tier Tribunal were so affected by Blake J’s overruled first instance reasoning in MM (Lebanon) [2013] EWHC 1900 (Admin) (see here) that the Home Office’s appeals fell to be allowed (which, of course, they were in light of the later ruling in MM (Lebanon) [2014] EWCA Civ 985, see here). All the respondents had been refused leave because their sponsoring spouse’s income failed to satisfy the minimum requirements in Appendix FM and Appendix FM-SE of the Immigration Rules. Referring to the recent case of Singh [2015] EWCA Civ 74 (see here), the court yet again endorsed the unappealed case of Nagre [2013] EWHC 720 (Admin) as containing “an accurate statement of the law”.
Context
Richards LJ held that in the absence of compelling circumstances, where the rules are not met refusal of admission might be fair and proportionate because the state is entitled to give regard to factors such as public resources and the desirability of promoting social integration. (As headlined above, his Lordship also held that the concept of a “complete code” should not be given undue weight by the courts.) He, moreover, explained that the instructions on claims outside the rules needed to be read dynamically. Accordingly, the phrase “exceptional circumstances” covered any article 8 case in which on proper analysis under article 8 at the second stage it would be disproportionate to refuse leave. The court discerned that there could be no general proposition that leave to remain or leave to enter outside the rules should only be granted in exceptional cases. Yet, speaking specifically, it was equally obvious in light of the Strasbourg jurisprudence that in the absence of children a proper application of article 8 might itself make it clear that the legal test for grant of leave to remain or leave to enter outside the rules:

29. … should indeed be a test of exceptionality.

As observed by the Supreme Court in Munir [2012] UKSC 32 (see here), the scheme of the Immigration Act 1971 allows wide discretion for leave to enter or remain to be granted where an applicant cannot show that they satisfy the conditions prescribes the rules.
In MM (Lebanon), Blake J’s analysis, one that was characterised as demonstrating “great learning”, elected to describe the new minimum income requirements as “a rather cruel piece of mockery”. But, because he used to be a human rights lawyer, Blake J allowed his emotions and feelings get in the way and his judgment did not hit the target. Aikens LJ, Treacy and Maurice Kay LJ therefore corrected him and held that the income requirements were not a disproportionate interference with the UK partners’ rights under article 8.
Notably, as held in Huang [2007] UKHL 11, rules formulated in a completely irrational way are challengeable on ordinary domestic public law grounds as regards their lawfulness. However, as demonstrated in MM (Lebanon) a challenge of this nature is an arduous task in terms of sustainability. As noted above, all the respondents had been refused leave because their sponsoring spouse’s income failed to satisfy the minimum requirements in Appendix FM and Appendix FM-SE.
The court held that the decision-maker did not have to take into consideration any reasonable prospect of future improvement in the sponsor’s finances. Richards LJ, moreover, held that marginally missing the minimum requirement does not amount to compelling circumstances warranting the grant of leave to enter.
Judgment and Case Law
For Richards LJ, Gül v Switzerland (1996) 22 EHRR 93 and Sen v Netherlands (2001) 36 EHRR 7 both supported the proposition that a person outside the UK might have a good claim under article 8 to be admitted to the UK to join family members and continue an existing family life. But no automatic right of entry is conferred by article 8 and – as shown by Quila [2011] UKSC 45, Abdulaziz v UK (1985) 7 EHRR 471 and Gül – it does not generally oblige a state to facilitate the choice made by a married couple to reside in it. Equally, Huang [2007] UKHL 11 was clear about the state’s entitlement to control immigration.
As highlighted above, the court held at para 39 that where rules are not met refusal of admission might be fair and proportionate because the state is entitled to give regard to factors such as public resources and the desirability of promoting social integration. The court also reiterated that though children’s interests are a primary consideration and diminish the state’s margin of appreciation, they do not automatically warrant the grant of leave to enter and age, proximity of relationship and whether family life is enjoyable elsewhere remain important questions.
Mentioning key authorities such as E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 and ZH (Tanzania) [2011] UKSC 4, Richards LJ held at para 39 that the mere fact that “the interests of a child are in issue does not simply provide a trump card so that a child applicant for positive action to be taken by the state in the field of article 8(1) must always have their application acceded to.”
The court appraised the authorities to mean that the state had a wider margin of appreciation in relation to leave to enter than it did in relation to leave to remain. Richards LJ added that this analysis is already reflected in the exclusion of section EX.1 from entry clearance as opposed to leave to remain matters and the entry rules “therefore maintain, in general terms, a reasonable relationship with the requirements of article 8 in the ordinary run of cases.”
Compelling Circumstances
Yet, the court was able to imagine cases where individual interests were so compelling that a claim for entry outside the rules was established and the appropriate general formula of showing the existence of compelling circumstances – insufficiently recognised under the new rules – dictated the grant of leave to enter. This analysis corresponded with para 29 of Nagre and para 44 of Haleemudeen [2014] EWCA Civ 558. Whilst the court rejected the proposition that “compelling circumstances” test was as onerous as the exceptionality or “very compelling circumstances” test (applicable to the precariousness of family relationships and deportation of foreigners convicted of serious crimes in the special contexts) explained in MF (Nigeria) [2013] EWCA Civ 1192, Richards LJ held at para 41 that:

It is a fairly demanding test, reflecting the reasonable relationship between the rules themselves and the proper outcome of application of article 8 in the usual run of cases.

The formulation, which avoids the need for any excessive hair splitting by first instance decision-makers and tribunals, was aided by the benefit of simplicity and served to reduce misunderstandings by first instance decision-makers and tribunals in instances – such as those evidenced in PG (USA) [2015] EWCA Civ 118, see here – where concurrent applications for leave to enter and remain were at play.
Complete Code
On this point Richards LJ emphasised that undue weight should not be given by the courts to the notion of a “complete code” and the first task at hand related to identifying the substantive content of the relevant rules. Where an application failed the requirements of the rules and the applicant had a reasonably arguable article 8 claim that was not sufficiently dealt with under the rules then his or her interests needed to be balanced against the public interest to ascertain whether or not a refusal of leave to enter would be disproportionate.
To the Court of Appeal, the codification of the Immigration Rules was not necessarily complete. In that regard, Richards LJ made some points in clarification. He identified at para 43 that the controversy insignificantly impacted the legal approach to be taken in the normal run of cases. Reminding himself of Sir John Dyson MR’s observation in MF (Nigeria) that the intrigue about a “complete code” was a “sterile question” because of the two-stage approach’s prevalence irrespective of whether a case falls to be addressed on a part of the rules which was a complete code or not, his Lordship said that:

45. Sometimes, the latter stage of the analysis will be covered by the text of the rules themselves, as in relation to the rules governing deportation of foreign criminals reviewed in MF (Nigeria). Those rules laid down substantive conditions which, if satisfied, would lead to the grant of leave to remain, but also stated that leave to remain might be granted “in exceptional circumstances” if the substantive conditions were not satisfied in a particular case. Where the rules take this form, it can be said that they form a “complete code”, in the sense that both stages of analysis are covered by the text of the rules. But this does not take one very far, since under the “exceptional circumstances” rubric one still has to allow for consideration of any matters bearing on the application of article 8 for the purposes of the second stage of the analysis … This is the basic point made by this court … in MF (Nigeria).
46. In other contexts under the rules, such as in the sections of the rules dealing with leave to remain and leave to enter, the rules lay down substantive conditions for grant of leave, but do not themselves say that leave should also be granted in other cases where there are “exceptional circumstances”. Where the rules take this form, they do not constitute a “complete code” in the sense in which that term is used in MF (Nigeria) at para 44, since the rules themselves only cover the first stage of analysis referred to above, and the second stage is left to be covered under the general law by the Secretary of State’s residual discretion, as governed by her obligations under section 6(1) of the HRA. But just as in the “complete code” case, the second stage of the analysis will be relevant in this class of case too, and any matters germane to the question whether there would be a violation of article 8 should be brought into account at that stage.

Giving a further tip, at para 49, Richards LJ placed emphasis on the point that the use of the phrase “exceptional circumstances” in the guidance does not render the leave to remain and enter provisions of the rules into a complete code, as contemplated by Lord Dyson in MF (Nigeria), but nothing turned on the distinction. Equally, the phrase “exceptional circumstances” needs to be construed in a generous fashion and it provides coverage to “any case in which on proper analysis under article 8 at the second stage it would be disproportionate to refuse leave” (original emphasis). The court used the opportunity to spell out the position delineated in paras 13, 14 and 49 of Nagre and Richards LJ simply said this to dispel future ambiguity:

49. … Thus, the cases covered by the “exceptional circumstances” guidance in the instructions to officials will fall within a wider or a narrower area in line with the changing requirements of article 8 across the gamut of cases it covers, depending on the context in which the cases arise and their particular facts. As we have sought to explain above, the “exceptional circumstances” contemplated by the instructions are not always as narrowly confined as in the foreign criminal context discussed in MF (Nigeria) and the precarious relationship context discussed in Nagre.

“Near Miss”
Richards LJ took the opportunity to strike the right balance between the rivaling submissions of the parties. The government did not cede territory on this point. It maintained the submission that “a miss is as good as a mile” and that a near miss should be irrelevant to the article 8 balancing exercise. However, the argument was dismissed. Despite the authority of Miah [2012] EWCA Civ 261 (see here), where an argument of a similar hue as the one canvassed by the respondents was rejected, the instant court let it be known that:

56. However, it cannot be said that the fact that a case involves a “near miss” in relation to the requirements set out in the rules is wholly irrelevant to the balancing exercise required under article 8. If an applicant can show that there are individual interests at stake covered by article 8 which give rise to a strong claim that compelling circumstances may exist to justify the grant of leave to enter outside the rules, the fact that their case is also a “near miss” case may be a relevant consideration which tips the balance under article 8 in their favour. In such a case, the applicant will be able to say that the detrimental impact on the public interest in issue if leave to enter is granted in their favour will be somewhat less than in a case where the gap between the applicant’s position and the requirements of the rules is great, and the risk that they may end up having recourse to public funds and resources is therefore greater.

However, the court said that applicants must desist from expecting the decision-maker to speculate about any improvements in their earnings and applications should be made once the rules could be met. The court also said at para 57 that it would be improper for applicants “on the horizon” to be able “to jump the queue by asking for preferential treatment outside the rules in advance” because the state was entitled to operate the rules “in the usual way” and those who failed them could reapply at a later time. (The expression “on the horizon” being synonymous with the existence of a reasonable prospect that in the near future, within weeks or months, the sponsors would in fact be able to satisfy the requirements of the rules.) Most of all, decision-makers cannot be “required to take a speculative risk as to whether the requirements in the rules will in fact be satisfied in the future when deciding what to do.”
The court took the middle ground. On the one hand, it held that although marginally missing the minimum requirement does not amount to compelling circumstances warranting the grant of leave to enter. Conversely, it was also said that marginally missing the minimum requirement might possible tip the scales.
But all this needed to be read against the general warning that the tactic of making an unsatisfactory application (which failed on the rules) and later curing it on appeal (by meeting the rules at a future date by using post-decision evidence) in the hope that the court or tribunal would grant leave to enter:

• is an illegitimate way of trying to jump the queue;

• is an improper attempt to subvert the operation of the rules; and

• was precluded by sections 85 and 85A(2) of the Nationality Immigration and Asylum Act 2002 (which applied to the instant cases).

Disposal
The tribunals had been wrong to rely on the first instance decision in MM (Lebanon) and their erroneous treatment suffered from a failure to ascribe proper weight to the minimum income requirements in the rules and also failed to properly identify compelling circumstances that required leave to enter outside the rules to be granted. Similarly, post-decision evidence had been entertained and excessive weight was ascribed to near misses.
Whilst a refugee who could not be expected to return to his country of origin to resume family life with his applicant spouse, SS (Congo)’s argument based on that ground was rejected by the court at para 67. In light of the differences in the article 8 analysis between the (juxtaposed) leave to remain and leave to enter cases, Richards LJ went on to hold that section EX.1 in Appendix FM (i.e. insurmountable obstacles to carrying on family life outside the UK) had no purchase in entry clearance matters. The court therefore reasoned that the mere fact that the existence of an insurmountable obstacle to pursuing family life outside the UK provided grounds for leave to remain to be granted did not mean that an insurmountable obstacle was also a reason for leave to enter to be granted.
In relation to BM (Afghanistan) the court took the view at para 76 that “the family simply preferred to come to live in the United Kingdom; but there is no requirement under article 8 that such a preference should be accommodated.”
As for the applications for extensions of time for appealing, in the cases of AC (Canada) and KG (India), the court said that these were to regarded in the same manner as applications for relief from sanctions under rule 3.9 of the Civil Procedure Rules 1998. In doing so, Richards LJ followed the authorities of Hysaj [2014] EWCA Civ 1633, Mitchell [2013] EWCA Civ 1537 and Denton [2014] EWCA Civ 906.
The court’s judgment on the issue of extending time is quite detailed. It contains full coverage of the details of the shortage of talented officers in the government capable of handling the volume and complexity of the appeal work involved. Richards LJ roundly rejected the proposition that there was good reason for delay until valid grounds of appeal became visible from the Court of Appeal’s judgment (impending at the material time) in MM (Lebanon). Evaluating the situation in terms of the public interest and certainty, and finding against the government on the point, the court held that:

109. We consider that approach to be wrong in principle. If it were open to parties to justify lengthy delays in applying for permission to appeal on the basis that they were waiting to see what emerged from judgments in other cases under appeal, it would be liable seriously to undermine the time-limit in the rules and to create serious uncertainty for litigants. The right course is to file a notice of appeal and to seek appropriate case-management directions from the Court of Appeal, drawing attention to any relevant outstanding appeal.

Comment
In its bid to extend time, the government argued that it lacked resources to deal with the volume of appeals. It relied on the evidence of an official in the Specialist Appeals Team which provided statistical data about how 14 full-time officials struggled to cope with high volumes of work involving an average of 450 appeals per month in the period May-September 2013 and reaching a peak of 1060 in February 2014. Other childish excuses also include reliance on the time taken (5 months) “to get staff members trained, and a further 6 months for new staff to be fully effective, and 2 experienced staff were on long-term sick leave.”
Although the judges did not really expand on the issue, it is totally out of order that the government keeps changing the rules at the drop of a hat but does not possess the proper infrastructure to deal with the appeals generated by the operation of those very rules. The fact that this lack of capacity, i.e. a lack of experienced staff and talent, is later invoked to extend time to appeal is quite appalling. This is the type of incompetence that is the Home Office’s trademark.
Although the government won these appeals, limited comfort can be found in the fact that the court dealt with the issue of extending time robustly and did not allow the Home Office to have its cake and eat it too.
The six appeals analysed above, relating to entry clearance, are the first in a pair of judgments on the problematical subject of “full coverage” of article 8 cases under Appendix FM. The next post examines the case of Agyarko & Ors [2015] EWCA Civ 440 where the Court of Appeal dealt with leave to remain and drawing attention to the Strasbourg case law it concluded that the exceptional circumstances test requires more than relying on a spouse’s nationality. It’s probably fair to say that it’s unlikely that we earthlings will be able see the Dark Side of the Moon or that earthshine will reach it!

 Vindplaats: https://asadakhan.wordpress.com/2015/05/20/full-coverage-family-life-exceptionality-and-the-rules/


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