Nagre, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 720 (Admin), 28 March 2013
Counsel for the claimant, applied for Judicial Review of the lawfulness of the changes to the Immigration Rules introduced by the Secretary of State on 13 June 2012, ‘Statement of Changes in Immigration Rules, HC 194’ in relation to claims based on family life. The relevant rules are
– Section E-LTRP (Eligibility for limited leave to remain as a partner):
– Section EX.1 (Exception) of Appendix FM (Family members):
– Rules 276ADE – 276CE:
http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/part7/
The claimant’s application for Judicial Review was quickly dismissed by Justice Sales – as the Immigration Rules do not have the status of ‘primary legislation’, the Secretary of State has clear jurisdiction ‘to express her views about how Article 8 should operate’, and that the changes in the Immigration rules did not ‘undermine the Rule of law, Parliamentary Sovereignty and Independence of Judiciary’.
However Mr Justice Sales granted permission to the claimant’s counsel’s further claims that there was a mismatch, in particular between Section E-LTRP and Section EX.1 (family life) in relation to established Article 8 case-law, and that the scope of mismatch was greater in this respect than that claimed between Rules 76ADE-CE (private life) and established Article 8 case-law.
Claimant’s Facts:
The Claimant, a citizen of India, was born in 1978. In August 2006 he arrived in the United Kingdom on a 6 month tourist visa, which expired on the 27 January 2007. He overstayed. In 2008 he met his current partner, and they started living together in May 2009, as a couple. They have had no children. In June 2011, claimant applied for leave to remain in the United Kingdom on the basis of Article 8 as the unmarried partner of a British Citizen present and settled in the United Kingdom. On 8th October 2011, the application was refused, for failing to meet he criteria set out in Section E-LTRP and Section EX.1 in relation to Family life, because there had been no ‘insurmountable obstacles’ identified with respect to the claimant re-locating to India with his un-married partner (family-unit). In relation to Rules 276ADE -CE (private life), the claimant was deemed to have not met the criteria set out under these provision, as there was no evidence submitted to show that he had cut all cultural and social ties with India. There was no right of appeal with this decision.
On the 3rd of December 2012, the counsel for the claimant issued a claim for Judicial review claiming the new rules to be unlawful, and that their application in the claimant’s case resulted in an unlawful decision made against him.
Legal Analysis
They key Immigration rule analysed was Section E-LTRP and Section EX.1 – (Family Life).
In all Article 8 cases, the central test is ‘Proportionality’ – to balance the effects of removal of an individual and the effect on the family unit and whether such an action is proportionate to the legitimate interests and needs of a democratic society for an effective immigration system to not be unduly porous. In established Article 8 case-law, if the effects of the removal were so detrimental, so severe to the lives of the family unit as a whole, in many cases it would be deemed ‘dis-proportionate’ to the general public interest needs and aims to maintain an effective immigration system.
In making an assessment in relation to the proportionality test in the context of Article 8, case-law guidance is very broad, due to the nature of Article 8 cases – namely that any number of situations could arise which could be very different in nature but could all qualify for relief through the courts for a dis-proportionate breach of their Article 8 rights.
In this respect, Counsel for the claimant argued that the Secretary of State’s inclusion of the ‘insurmountable obstacle’ requirement in the Immigration Rules (Section EX.1) was a mis-interpretation of previous Article 8 case-law guidance on what are the ‘material factors’ to look for in the application of the ‘proportionality test’ – the crux of the counsel’s argument was that the ‘insurmountable obstacle’ requirement was too prescriptive a test, and that too much weight was being relied upon, in the overall assessment of the proportionality test, on this one factor.
The claimant’s counsel, argued that Lord Bingham in EB (Kosovo) proposed a ‘looser test’ where he stated that it would rarely be proportionate to remove a family member when ‘it cannot be reasonable expected for the rest of the family unit to follow to the country of the removed family member/spouse’. Furthermore the Claimant’s counsel submitted that this interpretation was qualified by Sedley LJ in VW Uganda:
“EB (Kosovo) now confirms that the material question in gauging the proportionality of a removal or deportation which will or may break up a family unless the family itself decamps is not whether there is an insuperable obstacle to this happening but whether it is reasonable to expect the family to leave with the appellant.”
However Sedley LJ did not discount the existence of ‘insurmountable obstacles’ as being a material factor in the assessment of proportionality, but stated that it is not a decisive element in the operation of the proportionality test; ” While it is of course possible that the facts of any one case may disclose an insurmountable obstacle to removal, the inquiry into proportionality is not a search for such an obstacle and does not end with its elimination. It is a balanced judgment of what can reasonably be expected in the light of all the material facts. …”.
What is clear is that the Immigration Rules do rely upon the ‘insurmountable obstacle’ requirement as a significant material factor in the overall test of proportionality (Section E-LTRP and Section EX.1) but what was seemingly missed by the Claimant’s counsel was the UKBA guidance in the Immigration Directorate Instructions (IDI’s) (3.2.8) –
which does not make the ‘insurmountable obstacle’ requirement as decisive but, if identified, as making a decision to re-locate an individual in breach of the Article 8 (family life) rights, unlikely to be dis-proportionate.
To this extent Mr Justice Sales rejected the Claimant’s Counsel’s submission, on two grounds:
1. That Lord Bingham did not intend for his comments to be read as authoritative, and binding – but that it was a comment on how open, and broad-minded the process must be in the assessment of proportionality. What is interesting is that Lord Bingham immediately followed his comment about it being unreasonable for a family unit to re-locate with the removed spouse or family member with the following; “But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires”.
2. Both Lord Bingham and LJ Sedley, discount the ‘insurmountable obstacle’ requirement as being decisive, and call for a broader assessment of the proportionality test – to this end the mismatch between the relevant case-law and the new Immigration Rules introduced by the Secretary of State, is not as wide as submitted by the Counsel for the Claimant, this would, arguably, not have been the case if the rules Section E-LTRP and Section EX.1 were stand alone rules; but what reduces the gap significantly is the guidance issued through the IDI’s (3.2.8) – http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/chp8-annex/partners.pdf?view=Binary : which mitigates the influence of the ‘insurmountable obstacle’ requirement by instructing UKBA officials to be open to other material factors. Mr Justice Sales comments on the relevance of the ‘insurmountable obstacle’ requirement, is that if no insurmountable obstacle is identified then it will highly unlikely for the removal of that individual to be dis-proportionate – this is his reading of the position the Secretary of State has taken in relation to this specific aspect in the operation of Article 8.
Mr Justice Sales further commented on the lack of evidence submitted by the Counsel for the Claimant in relation to identifying that ‘insurmountable obstacles’ existed in the relocation of the Claimant’s unmarried partner to India, as short-coming in the case.
It is material to add the absence of any other factors which evidenced a unreasonable brach of the family unit.
Summary:
If Section Ex.1 and the IDI’s at (3.2.8), did not exist, then the applicant’s Counsel’s main submission that the SSHD (Secretary of State Home Department) mis-interpreted the application of the proportionality test, as established in previous case-law, would have been a lot stronger (materially so). However Mr Justice Sales took the existence of the IDI’s (3.2.8) as evidence that the SSHD was applying the proportionality test in a legitimate way, insomuch that the ‘insurmountable obstacle test’ was not being interpreted as decisive, but that is not to say that it will have considerable weight if the aggrieved party does not engage in this test and does not offer evidence of other factors which challenge the proportionality of deportation/relocation of themselves or/and their families.
What’s going on with Article 8 