In these judicial review proceedings, brought by “PN”, Lewis J held that the dismissal of Ugandan woman’s appeal against the refusal of her asylum claim had been reached by a procedurally unfair process because her case had been dealt with under the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005, which did not provide her sufficient opportunity to obtain evidence to support her claim. PN’s asylum claim was based on her sexual orientation. She was a former Yarl’s Wood detainee who was removed from the UK on 12 December 2013. However, five-and-a-half years later, granting relief Lewis J made a mandatory order for the Home Office to use its best endeavours to facilitate PN’s return to the UK so that she could continue with her asylum appeal. Lewis J prefaced his judgment with the point that it was difficult to determine the relevant facts because of the lack of witness statements from decision-makers and contemporaneous documentation in the case. Owing to the unfairness caused by the shortness of the timescales provided for by the 2005 Rules, which prevented PN from adducing evidence of her lesbian relationship in Uganda with a lady called Rose, Lewis J held that the decision of the First-tier Tribunal dismissing her appeal had to be quashed. The outcome was steered by JB (Jamaica)  EWCA Civ 666 where Moore-Bick LJ opined that homosexuality cannot be readily established without evidence from sources extrinsic to the claimant herself.
The court addressed the procedural unfairness during PN’s appeal, the lawfulness of the decision to detain and remove her, and the appropriate remedy. Lewis J judged that PN’s detention from the refusal of her asylum claim until the exhaustion of her appeal rights was unlawful and entitled her to damages for unlawful detention for that period. Among other things, PN argued that the fast track procedures had prevented her from obtaining crucial expert evidence of her history of childhood sexual abuse including rape and she submitted that the said evidence was relevant to fairness. It was necessary to know the whole story (or the “human story”) when considering her claim and that because of her vulnerability, she would not have been able, or would have been less able, to present her evidence in a cogent fashion. In Detention Action  EWCA 840 (“DA6”), Lord Dyson MR opined that asylum appeals are factually complex and difficult and can at times raise difficult issues of law and his Lordship was therefore not at all persuaded that the 2014 Rules, the successor rules to the 2005 Rules, made enough allowances to transfer out of the fast track process and were thus unfair.
A national of Uganda who was born in July 1993, PN arrived in the UK in September 2010 as an accompanying child on a visitor’s visa and she unlawfully remained in the UK when that visa expired on 25 February 2011. Subsequently, enforcement officers visited a London address on 21 July 2013 and found PN in an upstairs bedroom with a man. After forcing the door open the enforcement officers arrested PN for overstaying in the UK. Contemporaneous records revealed that she was evasive about her identity. However, she confessed to overstaying and said that she was single, had no relatives in the UK, worked as a hairdresser and was paid cash in hand. She also said that she had not tried to harm herself and was fit and well and not taking medication. Official papers recorded her as not having a psychiatric disorder, medical problems or concerns and not being a vulnerable adult and not having other special needs.
Rather than granting temporary release, an immigration officer decided to detain her and she was sent to Yarl’s Wood IRC. Healthcare staff records show that she said that she had palpitations and fainted and was upset and stressed. But IRC staff wrote that she “appears well physically and emotionally” and on 22 July 2013, the day she claimed asylum, a GP concluded that she was “physically and mentally alert” but claimed to be “anxious”. She was referred for counselling. It was decided that her claim would be processed under the Detained Fast Track Scheme. PN was given a solicitor to represent her and her asylum interview was held on 31 July 2013 and she was asked 263 questions. She said that she first realised that she was a lesbian at about the age of 13 and divulged details of lesbian relationships that she claimed to have had as a child with various women, namely Grace, Justine and Rose. These relationships led to her being beaten by her relatives. PN’s uncle sexually abused her and made death threats if she ever told anyone. Her explanation for the man in her bedroom at the time of her arrest was that she met him her birthday party and invited him back because she had recently been thinking about having a child.
She attempted, through solicitors, to remove her case from the Detained Fast Track Process by explaining that a medico-legal report was needed to evaluate her claim of torture, rape and her mental and physical health. The short timescales also stopped her from obtaining her UK partner Mildred’s evidence. The solicitors stated that PN had not gathered enough evidence in support of her claim. The solicitors liaised with the Helen Bamber Foundation in respect of the medico-legal report. PN’s claim was refused on 6 August 2013 and found that her removal would not breach her ECHR rights.
The decision-maker disbelieved that PN was a lesbian because there was no evidence of her relationships with Grace, Justine or Rose in Uganda or with Ruth or Mildred in the UK. Since she was found in bed with a man when she was arrested, it was the case that she was in heterosexual relationship with this man and was not a lesbian. PN had been in touch with Mildred by telephone and she had enough time to get a letter from her. PN’s detention reviews recorded that she had been retained in the Detained Fast Track Process despite repeated complaints about headaches and depression. She was deemed unsuitable for temporary release. The day after the refusal the Helen Bamber Foundation gave PN an appointment for assessing her need for a medico-legal report.
Appeal and removal
Under the 2005 Rules the timescales were very short and no provision existed for a case management review. There were only two working days for the notice of appeal to be filed. The appeal hearing was to be held two working days after the Home Office served its bundle (which had to be filed two working days from service of the notice of appeal). Adjournments for a maximum of 10 days were permitted and the First-tier Tribunal’s decision was to be served within two working days of the hearing.
PN’s case was adjourned for two weeks not because a medico-legal report would assist but because of obtaining information concerning an earlier visa application which had been refused. The hearing resumed on 28 August 2013. PN, the man who was present in her bedroom upon her arrest, and another male friend all gave evidence as did a woman who said that she had had sex with the claimant on two occasions.
The First-tier Tribunal dismissed the appeal because the judge did not find PN to be a credible witness and that she was not a lesbian. She was refused permission to appeal and became appeal rights exhausted and was kept in detention. Repeated judicial review challenges to prevent her removal were unsuccessful. Numerous medical documents were produced in respect of her. The last of these said that PN met the diagnostic criteria for panic disorder, PTSD with secondary psychosis and major depressive disorder. The doctor expressed the view that her account of her sexual development was consistent with homosexual orientation. The doctor stated that PN was unfit to fly both for mental and physical health reasons. However, UTJ Southern refused to grant relief and she was removed.
Judicial review claim
In October 2015, PN began proceedings challenging the decision to remove her and detention. Her judicial review challenge went through many twists and turns. First permission was refused owing to the claim being out of time and then it was stayed on three occasions. Ultimately, on 6 February 2019, Supperstone J ordered that the substantive hearing should be listed and he granted PN permission to amend her detailed grounds of claim to reflect the judgments given by the Divisional Court and Court of Appeal in TN (Vietnam)  EWHC 3546 and TN (Vietnam)  EWCA Civ 2838. Earlier, in March 2018, PN provided amended detailed grounds to amend her claim form to include a claim that the determination of the First-tier Tribunal of 30 August 2013 dismissing her appeal should be quashed.
The Administrative Court
As a preliminary point Lewis J observed that the First-tier Tribunal held “it is not at all clear why evidence in relation to historic rape impacts on the core claim which is the appellant’s sexual orientation and risk on return.” He noted at the outset that the Home Office resorted to quibbling over whether permission had really been granted for PN to challenge the First-tier Tribunal’s determination. Addressing this issue he said that Supperstone J’s order had granted PN permission to amend the claim form to challenge that determination on the grounds that the procedure leading to it was not fair. The amended grounds of claim did make those amendments and therefore the amended claim for judicial review did include a claim for an order to quash the determination of the First-tier Tribunal.
(i) Procedural fairness and PN’s appeal
In DA6, Lord Dyson MR gave three reasons why the power in rule 14 to transfer appeals out of the fast track procedure was insufficient to ensure overall fairness. Lord Dyson’s threefold reasoning was that (i) there may not have been enough time to complete inquiries into possible further evidence, (ii) it was only possible to seek a transfer out at the appeal hearing itself, and (iii) it was probably that judges would regard the time provisions as the ones usually to be applied and there was likely to be a reluctance to postpone or transfer an appeal on the day of the appeal hearing. Overall, Lord Dyson concluded “the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases.” He was not persuaded that the safeguards were sufficient to overcome the unfairness inherent in a system requiring asylum-seekers to prepare and present their appeals within seven days of the decisions which they seek to challenge.
Singh LJ recommended in TN (Vietnam) that in an application to set aside an earlier appeal decision made under the 2005 Rules the court should approach its task by observing that (i) a high degree of fairness is required in this context, (ii) the 2005 Rules created an unacceptable risk of unfairness in a significant number of cases, (iii) it is necessary to consider whether there was a causal link between the risk of unfairness that was created by the 2005 Rules and what happened in the particular case before the court, and (iv) overall, there can be no substitute for asking the only question which has to be determined: was the procedure unfair in the particular case? That has to be determined by reference to all the facts of the individual case. Singh LJ’s recommendations were non-exhaustive. Applying these principles to the present context, Lewis J held that:
70. First, I bear in mind that the claimant’s asylum claim necessarily involved obtaining evidence from external sources, that is, sources other than the claimant herself. Furthermore, as at least some of the lesbian relationships relied upon were said to have taken place in Uganda, it would realistically be necessary to obtain evidence from one or more persons in Uganda.
Moreover, the extremely tight timescales provided for by the 2005 Rules did not provide sufficient time to enable PN to do that. She did not apply to take the case out of the fast track procedure (or to adjourn it) on the basis that she was seeking evidence from Uganda. She did do so on the basis of getting a medico-legal report. However, as Lord Dyson recognised in his judgment in the DA6 case, it puts an individual in an unfair position if she has to apply for an adjournment or a transfer out of the fast track on the basis that she needs evidence from abroad to substantiate her claim because, if the application is refused, she will have highlighted deficiencies in her appeal. In light of the above,Lewis J held that:
75. For those reasons, I consider that there was procedural unfairness in the process for determining the claimant’s appeal to the First-tier Tribunal and that unfairness was caused by the short time scales provided for by the 2005 Rules. The claimant did not have the opportunity to adduce the evidence of Rose relating to the nature of their relationship in Uganda. For that reason alone I consider that the determination of the First-tier Tribunal should be quashed.
The court was reinforced in its view by the approach taken by the Court of Appeal in JB (Jamaica) where Moore-Bick LJ judged that sexual orientation cannot readily be established without evidence from sources extrinsic to the claimant herself. On the other hand, Lewis J held that even if the removal decision was flawed because of the quashing of the First-tier Tribunal’s decision, quashing the decision to remove PN would not have any practical effect because she had already been removed and so the matter was academic.
(ii) Appropriate remedy
The determination of the First-tier Tribunal of 30 August 2013 was unlawful since the procedure leading to that decision was unfair. Granting an order quashing, or setting aside, that determination was appropriate. The effect was that PN’s appeal against the refusal of her asylum claim remains outstanding/undetermined and the question was whether the Home Office should be ordered to use its best endeavours to facilitate PN’s return to the UK for her to continue with her appeal. In YZ (China)  EWCA Civ 1022 it was the view of Richards LJ that the fact that a person has been unlawfully deprived of her statutory in-country right of appeal “is a strong factor in favour of return.” Applying that approach, Lewis J stated:
81. It is appropriate to make a mandatory order requiring the defendant to use his best endeavours to facilitate the claimant’s return to the United Kingdom to pursue her appeal. First, the claimant has a right of appeal which she is entitled to pursue from within this country by reason of section 92(1) and (4) of the 2002 Act.
Moreover, given that the Home Office accepted that, if PN is a lesbian, she would face a real risk of persecution, Lewis J found “a strong interest” in letting PN pursue her appeal from within the UK rather than from Uganda where she would surely face a real risk of persecution in the interim if her claim for asylum is subsequently successful. The statutory position under section 77 of the Nationality, Immigration and Asylum Act 2002is that that a person may not be removed from the UK whilst his or her claim for asylum is pending. Thus statute reflects the importance of allowing a person to remain in the UK until the claim is assessed.
In PN’s case the tribunal’s determination was unlawful and her outstanding remained undetermined. Thus, the circumstances pointed strongly in favour of enabling her to return to the UK until her appeal is finally determined and this view was in keeping with McFarlane LJ’s point in R (AB)  EWCA Civ 59 that it is hard to justify a person’s appeal to proceed while she or he remains as an asylum-seeker in her or his country of persecution. Since PN’s credibility as a witness will underpin her appeal her presence to give oral evidence in proceedings was important. Moreover, there was no possibility of evidence by video link from Uganda and tendering evidence by video link was seen as inadequate by the Supreme Court in Kiarie and Byndloss  UKSC 42 (discussed here). Bearing that observation in mind, the fact that PN is likely to have to give oral evidence, and that her credibility will be key in the determination of her appeal, her return is minimally consistent with ensuring the fair determination of her asylum claim.
The claim had been brought out of time, but on the facts of the case it was not open to the court to say that it was contrary to good administration to require the Home Office to use its best endeavours to enable PN to return to the UK to proceed with her asylum appeal in circumstances where the appeal was, initially, dealt with unfairly. Because PN had been unlawfully deprived of her statutory right of appeal within the UK and would be required to appeal from Uganda where she claims she faces a real risk of persecution on the basis of her sexuality, it was appropriate to order the Home Office to use its best endeavours to facilitate her return to the UK to proceed with her case. Overall, the result in this case has got to be the comeback of the century.
(iii) Detention and damages
PN was detained from 21 July 2013 until her removal from the UK on 12 December 2013. She contended that she was entitled to damages for false imprisonment and a sought a declaration that each period of her detention was unlawful in light of the principles articulated in the cases of Hardial Singh(1984) 1 WLR 704 and R (I)  EWCA Civ 888. Lewis J found that PN’s detention from the refusal of her asylum claim on 6 August 2013 until the exhaustion of her appeal rights on 10 September 2013 was unlawful. In light of Detention Action  EWCA Civ 1634 (or “DA4”), the decision to detain her was influenced at least in part by the use of an unlawful policy, namely the use of detention for persons within the fast track process who were appealing refusals of their asylum claim. Lewis J found that the policy was unlawful as it lacked clarity and transparency and was also unjustified in terms of compliance with the Hardial Singh principles. The court held that, in any event, the Home Office failed to show that it would have detained PN under the general criteria in the Enforcement Instructions and Guidance and she was entitled to damages for her detention from 6 August 2013 until 10 September 2013.
Significantly, the judgment in TN (Vietnam)  EWHC 59 highlights that more than 10,000 appeals were decided by the operation of the fast track system under the 2005 Rules. Therefore, there is wider potential for this judgment to aid others like PN who are in need of a miracle. It is sad that her removal was not suspended while she was still in the UK, but of course UTJ Southern was unmoved by medical evidence that she suffered from PTSD with secondary psychosis and major depressive disorder and that her account of her sexual development was consistent with homosexual orientation. Sadder still is the fact that the Home Office has elected to appeal Lewis J’s judgment to increase PN’s suffering by prolonging her predicament so that she remains in Uganda where the persecution of the LGBT community is very acute. If Lewis J’s judgment is upheld it will enable many other victims of the fast track process to get justice in their cases.
PN responded to his decision by saying: “I didn’t get a fair hearing, the Home Office must do what the High Court judge told them to do. I want my life back. I am a lesbian, I don’t want to live in fear anymore.” However, the Home Office is still intent to deny PN her legal rights. Yet the Home Secretary Sajid Javid hypocritically made false statements during the recent Pride celebrations in London that his department supports LGBT rights.
Dismissing a Tier 4 (General) student’s appeal, the Court of Appeal has held that it is “wholly illegitimate” for legal representatives to cite excessive authorities because such behaviour unnecessarily burdens the tribunals where the workload is heavy and existing facilities are already overstretched. In fact this new warning comes off the heels of the earlier advice in UT (Sri Lanka)  EWCA Civ 1095 (discussed here) where, apart from providing an outline of the proper approach that the Upper Tribunal should take as regards immigration judgments made in the First-tier Tribunal, the Court of Appeal also highlighted two unsatisfactory practices or attitudes which undermine the quality and efficiency of justice in immigration and asylum cases, namely the almost endless citation of cases by the parties’ representatives and the erroneous belief that every decision is capable of being appealed with the result that neither side ever regards any decision as final. In the present case, Floyd, Leggatt and Coulson LJJ strongly discouraged the “kitchen-sink” approach to citing authorities and were very critical of the applicant’s counsel because of the citation of an unreported case that was never previously referred to, i.e. Nanette Marcellana v SSHD UT IA/01888/2013. Mrs Kaur’s appeal was a second appeal arising from a decision taken by the Home Office in October 2015 refusing her leave to remain in the UK as a Tier 4 (General) student migrant under the Points-Based System.
The grounds of appeal raised concerned two narrow issues concerning the power of the Home Secretary to retain Mrs Kaur’s original passport during a period when she was seeking fresh sponsorship. Permission to bring the second appeal was granted only on two grounds only (i) that the decisions of both tiers of the tribunal were not in conformity with Nanette Marcellana, and (ii) the SSHD should have exercised her discretion to return the passport because these were “exceptional circumstances”. Against that the Home Office submitted that neither the First-tier Tribunal nor the Upper Tribunal possessed necessary jurisdiction to entertain Mrs Kaur’s challenge since her complaint was not aimed at the decision refusing her leave to remain but turned on the earlier decision to retain her original passport, such action not falling within the meaning of an “immigration decision” as defined by statute. This was a threshold point, which Coulson LJ rejected “as a matter of principle”. Mrs Kaur was refused leave to remain because her educational institution had withdrawn the necessary Confirmation of Acceptance for Studies (“CAS”). She appealed and it was undisputed that the decision-maker referred to the wrong CAS number and that the CAS had not been withdrawn.
The matter was remitted back to the decision-maker. However, it then transpired that the educational institution surrendered its sponsorship licence with the result that Mrs Kaur’s CAS was rendered invalid. She was provided a further period of 60 days, during which the SSHD suspended any consideration of her application for further leave to remain as a Tier 4 (General) student. She was invited either to withdraw her application and submit a fresh application in a different category, or to leave the UK, within that 60-day period.
The decision-maker provided the further alternative that if Mrs Kaur wanted to continue to pursue her application as it stood, she should, within the permitted 60 days, find a new educational institution and submit a new CAS. She was given a letter to be shown to other institutions which was headed “Information Leaflet”. But she was unable to find a new sponsor or to submit a new CAS and so after the expiry of the 60 days, her application for further leave to remain as a student was refused by way of a decision dated 22 October 2015 because there was no valid CAS or sponsorship.
FTTJ Green dismissed the appeal on the basis of the facts and he held that he did not find Mrs Kaur’s appeal credible as she failed to provide any supporting evidence to back up her claim that none of the colleges that she had contacted would issue a CAS without first examining her original passport. She said that the colleges that she visited refused to confirm this in writing.
However, FTTJ Green held that the decision was not unfair in the circumstances and the Home Office had discharged its common law duty of fairness because prospective colleges accept an attested passport copy and can be guided by the explanatory leaflet. To retain the original passport is standard practice and Mrs Kaur had been provided an adequate chance to enrol at a different institution and had the necessary documentation to do so.
FTTJ Green’s findings of fact remained undisputed. Subsequently UTJ Hanson rejected Mrs Kaur’s appeal as being without merit. UTJ Hanson emphasised that FTTJ Green’s findings of fact meant that the appeal could not succeed. He also rejected the submission that the decision-maker failed to act in accordance with Home Office guidance, Retention of valuable documents.
The Court of Appeal
The court dismissed the appeal after addressing arguments related to jurisdiction, the citation of Marcellana, exceptional circumstances and the retention of passports. Floyd, Leggatt and Coulson LJJ remained somewhat scathing in their criticism of Mrs Kaur’s legal representatives.
(i) Jurisdiction of tribunals
Giving the main judgment, Coulson LJ rejected the government’s contention that the retention of the passport was not an “immigration decision” as defined by statute. He said that it was possible to imagine circumstances where a decision to retain the original passport prevented an applicant from obtaining the necessary secondary documentation (like a CAS), which led directly to a decision to refuse further leave to remain. The court said that in such situations there was no doubt that both tiers of the tribunal would have the jurisdiction to consider the merits and effect of the decision to retain the passport, because that may well decide the question of whether or not leave to remain was wrongly refused.
The point could be put in a different way by reference to rule 322(9) which sets out a ground of refusal of leave to enter or remain under the Immigration Rules in those cases where an applicant fails to “produce within a reasonable time information, documents or other evidence required by the Secretary of State to establish his claim to remain under these Rules.” In cases such as the present it was necessary to show a causal connection between the decision to retain the original passport, and the subsequent refusal of the application for leave to remain.
In the present case, FTTJ Green found was no causal connection between the retention of the passport and the failure to obtain a CAS or sponsorship. Therefore, while the First-tier Tribunal and Upper tribunal did have jurisdiction, it was clear enough that:
19. … once it had been decided that the absence of the original passport was an irrelevance to the decision to refuse leave to remain, the appellant’s claim for appeal was doomed to fail.
In relation to the citation of Marcellana – a case also involving the retention of the applicant’s original passport where UTJ Reeds allowed a student’s appeal owing to procedural unfairness in the decision-making process – the Home Office insisted that the unreported decision was not citable in the Court of Appeal because of the effects of Practice Direction: Citation Authorities  1 WLR 780. The argument was rejected and Coulson LJ said that neither that Practice Direction nor the Senior President’s Practice Direction of the Immigration and Asylum Chambers of the First-tier and Upper Tribunal 2014 presented a complete bar on the citation of such cases to the Court of Appeal. However, citation may be permitted only where “there is a relevant statement of legal principle not found in reported authority” and the court gave the following warning:
23. … This is not simply a dry argument about precedent. Immigration and asylum work at all levels is bedevilled by the promiscuous citation of authorities from all kinds of judges, regardless of the factual background of the case in question, in the hope that there might be something, whether law, or fact or even comment, which might look roughly similar to the case in question and therefore might assist the argument being advanced. It is not unfair to dub it a ‘kitchen-sink’ approach to citation. It is wholly illegitimate and merely adds to the workload of already-stretched FtT and UT judges. Proper limits on the citation of authorities in judicial review cases are required if this blizzard of references to irrelevant, fact-dependant cases is ever going to be stopped.
It did not help matters that, when pressed, Mrs Kaur’s counsel was unable to extract any statement of legal principle from Marcellana that was not otherwise found in the reported authorities.
It was not enough just to observe that in Marcellana UTJ Reeds said at paragraph 38 that on the particular facts the SSHD had “frustrated” the applicant’s attempts to obtain a CAS. Coulson LJ found that Marcellana did not take the court anywhere and it did not give rise to any sort of arguable ground of appeal in Mrs Kaur’s case.
The facts in Marcellana were entirely different and could be distinguished as they were “much stronger” because the applicant required her passport for the specific purpose of taking an English test and she expressly requested her passport’s return. She had been accepted to study on a post-graduate diploma. She had a new CAS and only needed her passport for taking the English test. The Home Office accepted that it had caused delay and the facts were far removed from the facts of Mrs Kaur’s case because they gave “rise to an unexceptionable decision.” Therefore, the attempt to cite Marcellana was illegitimate in the circumstances and the attempt to induce the court to indulge in it also showed the absence of any plausible arguments available in this case. Hence, the Marcellana ground failed.
(iii) Exceptional circumstances
Notably, Mrs Kaur’s grounds of appeal accepted that section 17 of the 2004 Act conferred discretionary power on the decision-maker to retain her passport. However, she said that her passport should have been returned because there were exceptional circumstances in her case. The submission was rejected on the facts of her case but Coulson LJ judged that (at least in theory) a realistic “challenge to the exercise of the discretionary power to retain an applicant’s passport might lie in the existence of exceptional circumstances which made the retention unfair or otherwise unlawful.” However, in his Lordship’s view Mrs Kaur’s case “could not be more ordinary” as she was “like thousands of others” she found herself without sponsorship or a CAS and failed to find an alternative in the 60 days allotted.
Despite such facts the court held that it was not open to Mrs Kaur to argue that her failure to get a CAS or alternative sponsorship was somehow connected to the retention of her original passport and the provision of an attested copy instead. The decision-maker had been entitled to exercise discretion against returning the passport.
(iv) Retention of passport
Mrs Kaur submitted that any retention of the original passport at all was unlawful under section 17 of the 2004 Act. The argument was made on the basis that she was not a person who the Home Office reasonably suspected “may be liable to removal from the United Kingdom in accordance with the provision of the Immigration Acts”. The argument was canvassed on the ground that, at the time of the decision to retain the original passport, Mrs Kaur had leave to remain and that her leave had not been curtailed. The point was rejected for a number of reasons without the need for the court to reach a concluded view on it. The statutory language was wide in scope and in order to retain the document, the Home Office need only suspect that the person in question may be liable to removal. A person such as Mrs Kaur was covered by the terms of section 17 of the 2004 Act and the width of the words used did not mean that her passport could only be retained once her leave had been curtailed. Equally, the extension of her leave pursuant to section 3C(2)(a) of the Immigration Act 1971 further confirmed the court’s analysis because Coulson LJ felt that persons with this form of leave were in an insecure position and might well fall into the class who may reasonably be suspected of being liable for removal.
The Home Office rightly submitted that the discretionary power relating to retaining passports of those suspected of being potentially liable for removal was similar in nature to the Home Secretary’s power to detain those migrants whose leave may be curtailed under section 10 of the Immigration and Asylum Act 1999 in relation to which the court in R (SW)  EWHC 2684 (Admin) rejected the submission that the argument that the power to detain could only apply once the relevant person’s leave had been curtailed.
Home Office guidance, i.e. Retention of valuable documents, explains that if a caseworker curtails leave to 60 days he/she must return the valuable documents because the migrant still has valid leave to remain. Therefore, Mrs Kaur’s passport should have been returned to her. However, Coulson LJ said that he did “not find this guidance easy to decipher” because Mrs Kaur’s leave was not curtailed to 60 days and the 60 days was a period of suspension prior to a decision being made as to whether or not to curtail her leave. He therefore held:
44. For all the reasons that I have given, I consider that section 17 applied to the retention of the appellant’s original passport. Its retention was a matter of discretion for the SSHD and there were clear grounds to justify its retention.
(v) Per Floyd LJ
Concurring with Coulson LJ’s judgment, Floyd LJ added a few words of wisdom on the inappropriate citation of decision in Marcellana and he said that “the excessive citation of authorities because they bear similarities on the facts to the case under consideration is not a new problem, or one limited to the field of immigration and asylum law.” Notably, in Savage v Harris (1896) 13 RPC 364, in the century before last, Lopes LJ (with whom Lindley and Kay LJJ agreed) said this in a case on patents:
Cases, so far as regards the law, are most useful, but when they are applied to particular facts, they, as a rule, are of little service. Each case depends on its own particular facts, and the facts of almost every case differ.
Floyd LJ concluded that citing previous decisions on questions of fact only increases costs and also wastes court time and scarce resources.
While it is possible to sympathise with the Court of Appeal’s position that a “kitchen-sink” approach to citing authorities overloads the burdens on an already-stretched tribunal judiciary, it is much more difficult to see how Coulson LJ can justify his position on a “blizzard of references” in this case because the only authority raised was Marcellana and it arguably seems to have been on point because of the contextual similarities with the present case. The tone of the Court of Appeal in this case reconfirms the rise of a judicial culture that is extremely harsh on immigrants and their lawyers but which has a soft spot for the Home Office.
Of course the court was quite right to emphasise that increasing costs and wasting court time and scarce resources must be avoided but it must be remembered that Home Office officials are infamous for burning a hole in the public purse because of paying large sums in costs for their appalling decisions which cannot be defended in court in judicial review proceedings. They are extremely busy flushing tens of millions of pounds annually down the drain to pay for mistakes that should never have been made.
It is nevertheless an emollient feature of this judgment that Coulson LJ found it possible to imagine situations where a decision to retain the original passport prevented an applicant from obtaining the necessary secondary documentation (like a CAS), which led directly to a decision to refuse further leave to remain.
In many cases, it is not possible to find an alternative sponsorship or another CAS only on the basis of an attested copy of a passport and a letter headed “Information Leaflet” to be shown to other institutions. Most institutions fear the Home Office so much that they demand an original passport with a valid existing visa in the right category even to make an offer of study. So great is the fear of falling foul of the intricacies of UK immigration law that most institutions will be a lot like the Home Office and will readily resort to behaving like border guards. They will not consider any prospective students who do not possess a clear immigration status and the relevant documentary proof to confirm it.
With the greatest of respect to the Court of Appeal, Floyd, Leggatt and Coulson LJJ have engaged in some serious armchair anthropology in this decision and they seem to be totally disconnected from what is actually going on in the UK. If they leave the ivory tower they will find that the hostile environment created by Theresa May is the type of place where everybody is a legitimate target. We recently had a matter where a genuine student in the final stages of her PhD was refused a visa because of her mistake that she submitted her sponsor father’s corporate bank account with her application rather than his personal bank account. The result of the refusal was that her university was forcing her to leave the UK to get a new CAS. The decision-maker even placed her and her two little children on bail. Of course, there was no scope for “evidential flexibility” and the provision of the sponsor’s personal bank statement was a bright-line requirement.
Meanwhile, her landlords and their estate agents were demanding to see a valid visa for her to have a right to rent. She was also repeatedly subjected to the illegal right to rent checks in the same year and her landlords and their estate agents even checked her immigration applications. All this was totally unlawful and absolutely unnecessary.
Of course we put an immediate end to all of our PhD student client’s suffering and she was swiftly granted a Tier 4 (General) visa and got her degree on time. The only reason that I am mentioning all this is that the institution in question, a national university, was quite happy to force their student overseas to seek re-entry and lengthily delay the award of her PhD (and simultaneously cause the removal of her daughters from their secondary school mid-year causing them to lose a year and lag behind their classmates).
So bearing all that in mind, it is not possible for people in Mrs Kaur’s circumstances to wave a magic wand and find a new sponsor/CAS on the basis of an attested copy of a passport and a letter headed “Information Leaflet”. The reality of the situation is hugely different from the neat picture painted by the Court of Appeal because most educational institutions will run a mile from a prospective student who says that she does not have her passport and has no residence permit to prove her right to remain in the UK. Although it is quite understandable that Floyd, Leggatt and Coulson LJJ and their esteemed colleagues are frustrated by the “kitchen-sink” methods that they see in the cases listed before them, it is unhelpful for the judiciary to sweep the dirt under the carpet by distorting everything in the government’s favour – kitchen-sink or no kitchen-sink.
Irwin and Underhill LJJ recently held that the refusal of leave to remain under Tier 2 (General) to a Bangladeshi migrant could not be defended because such refusal was irrational. In particular, no rational basis existed for the decision-maker to conclude the role was not genuine because the applicant was inexperienced and the job description mirrored the wording of the Code of Practice for Skilled Workers Version 04/15 (“the Code”). The Court of Appeal held that such traits might be cause for some suspicion but on their own they cannot constitute a sufficient basis for an adverse conclusion. The effect of the court’s reasoning was that the decision had to be quashed. Mr Rahman Suny entered the UK as a student in December 2007. His leave as a student was extended in April 2011 and April 2013 and was curtailed. He applied on family and private life grounds but his application was refused in July 2015. On 12 August 2015, he made an application for further leave to remain as a Tier 2 (General) migrant under the Points-Based System (“PBS”) of the Immigration Rules. The application was supported by a degree certificate in respect of Mr Suny’s Master of Arts in Marketing and Innovation from Anglia Ruskin University, a curriculum vitae and a reference from a short period of previous employment in Bangladesh. His employer was Zamir Telecom Ltd, an approved sponsor.
Mr Suny paid a fee for a Tier 2 Priority Service Application, whereby subject to “reasons beyond our control”, the application would lead to a decision within 10 working days by the Home Office. However, the decision was sent on 6 February 2017, almost 18 months later, despite repeated prompting from his solicitors. The Tier 2 (General) application had been based on a certificate of sponsorship (“CoS”) from an approved sponsor who had offered him a job as a “sales accounts and business development manager” and this was a role which fell within a standard occupational classification (“SOC”) for the purposes of the Code. No dispute arose as to the fact that he was qualified for the role but that he lacked experience and would need to be trained by the sponsor. The decision-maker, after an 18-month delay, relied on Appendix A paragraph 77H(a) to refuse the application on the basis that the job vacancy was not genuine. The reason was that Mr Suny did not possess the relevant experience for the role, and the sponsor had also failed to explain why he was the most suitable candidate or why a resident worker could not have been trained to do the job.
Pursuant to under paragraph 245HD, a relevant applicant for leave to remain as a Tier 2 (General) migrant needs to score a minimum of 50 points under paragraphs 76–79D of Appendix A. The award of points is partially governed by paragraph 77H of Appendix A of the Immigration Rules.
Furthermore, paragraph 6 (interpretation) of the Immigration Rules defines a genuine vacancy as one which exists in practice requires the jobholder to undertake the specific duties and responsibilities and does not include dissimilar and/or unequally skilled duties such that the SOC code used by the sponsor as stated in the CoS relating to the applicant is inappropriate.
The administrative reviewer took the view that the text of the summary of job description was so close to the text set down in the Code, applicable at the time the application was made, that it was suspicious and lent support to the refusal of Mr Suny’s application. Thereafter, the Upper Tribunal refused permission to apply for judicial review, holding that the Home Office had unarguably been rational in arriving at the conclusion that the vacancy was not a genuine one.
UTJ Kopieczek refused permission to apply for judicial review because of his view that the grounds were “a simple disagreement with the Respondent’s decision” and none of the legal arguments “had any arguable merit”. It was the clear view of the decision-maker that the vacancy on the CoS was not “a genuine vacancy”. The Home Office was entitled to seek further information from the sponsor and the response received was insufficient to allay its concerns as to the genuineness of the vacancy. In addition to concerns about the genuineness of Mr Suny’s candidature, the sponsor had failed to clarify his suitability for the role and apart from the interview Zamir Telecom failed to explain adequately the process of Mr Suny’s recruitment.
Ground of appeal
The single ground of appeal stated that the Upper Tribunal “erred in concluding that the respondent was unarguably rational in concluding that the vacancy was not a genuine vacancy for reasons given in the respondent’s decision.”
The competing arguments
Mr Suny identified four propositions in the refusal (i) he did not have sufficient experience for the role entailed, (ii) the employer would have to train him which “makes little sense” given that the role itself entailed training junior staff; (iii) the potential employer failed to provide sufficient information as to why he was the most suitable candidate; and (iv) the employer also failed properly to explain the process of recruitment followed. Overall, his central argument was that even if those conclusions were rational on the basis of the evidence, it was still irrational to conclude as a consequence that the vacancy was not genuine. He argued that none of the points relied on elaborated upon the definition of a genuine vacancy. His role did not require particular experience and it was illogical to conclude the vacancy was not genuine on the grounds of lack of experience, or the need for training. The belief that he required extensive training, and lacked significant experience, overlooked his Masters degree in marketing and innovation and neglected the details in his resume about his knowledge and experience in IT, marketing and accountancy.
The Home Office did not dispute the four factual propositions. It said that taken together they supported the conclusion that the vacancy was not genuine and it was unnecessary, in the PBS, to specify which parts of the relevant criteria were not fulfilled.
The lack of information provided by the sponsor regarding issues such as suitability and the recruitment process was unhelpful and it was rational to be concerned as to the genuineness of the vacancy where the description of the job closely matched the language of the Code. While the role in question was not subject to the Resident Labour Market Test (“RMLT”) that did not mean that the fact a resident worker could do the job was irrelevant to the decision in this case. The Home Office argued that the challenge that Mr Suny was trying to make was out of the reach of judicial review proceedings unless it satisfied the uphill irrationality threshold which Lord Bingham characterised as “notoriously high” in Maxwell  1 WLR 104. Thus, the Upper Tribunal was right to refuse permission to apply for judicial review.
The Court of Appeal
Allowing the appeal, the court opined that none of the concerns of the decision-maker stemmed directly from the definition of a “genuine vacancy” within the meaning of rule 6 of the Immigration Rules. Individually, none of the concerns could have founded a rational conclusion that the vacancy was not genuine and each of the concerns was highly problematic and could easily have been explored to achieve clarity. Irwin LJ gave the main judgment and Underhill LJ agreed with his reasoning and offered some points in his own words.
(i) Rationality and genuineness of vacancy
Irwin LJ’s preliminary observation was that a job offer to an individual who is manifestly unqualified for the role may justify an inference that the job vacancy is not genuine as well as founding a decision that the person is unqualified for the post under paragraph 77H(b). It was however his Lordship’s view that:
34. … inference could properly be drawn, at least as the sole basis for an adverse conclusion under 77H(a), only where the facts were much more stark: where the job applicant lacked an essential qualification, or essential experience, or was otherwise evidently unsuitable.
The Home Office conceded that in the present case a finding against the applicant under paragraph 77H(b) might be problematic since there are few stark lines in Mr Suny’s particular type of job vacancy. For Irwin LJ, it was a “persuasive point” by Mr Suny’s counsel that the relevant Code of Practice for “3545 Sales Accounts and Business Development Managers” explicitly anticipates “new entrants”, since a lower salary rate is indicated expressly for that category.
Zamir Telecom had always very clear that Mr Suny had qualifications, including his recent degree, but “no relevant experience” and thus needed training. This was misunderstood as being indicative that the vacancy was not genuine. The court said it was unclear why this was so. It also expressed difficulty with seeing any rational basis for the conclusion by the decision-maker that “you do not hold the relevant experience to undertake this role”. No one had ever claimed there was relevant direct experience and Irwin LJ judged that:
36. … Common sense, as well as the content of the Code, suggests that an inexperienced but otherwise suitable applicant may be cheaper.
The court also expressed concern about the decision-maker’s approach to the resident labour issue. The vacancy was not subject to the RLMT and no obvious reason existed for Zamir Telecom to provide an explanation regarding why they were seeking to recruit a non-resident. Moreover, the decision-maker had not bothered to ask for an explanation or further information on this point. Nothing of substance arose on the facts of the case and the court agreed with Mr Suny “that there is a concern that the relevant official took an irrelevant matter into account.” Turning to the question of the job description, there was no doubt that the person drafting the job description had the text in the Code to hand and the Home Office accepted that despite its suspicion about the genuineness of the job vacancy it would be difficult to defend this as a sole basis for a rational adverse conclusion. Irwin LJ was unimpressed that the first that the argument was made was by the administrative reviewer and not by the first instance decision-maker and he held that:
40. I accept that most employers will have job descriptions for their employees and vacancies which are drafted for jobs without reference to the Codes of Practice. The task will then be to check such a job description against that laid down. I accept that drafting in the way the matter was done here may rationally give rise to some concern. However, it also seems to me that Mr Karim is correct as to the likely pressures on sponsors, who are not lawyers, and will not usually employ lawyers for purposes such as this, and who are anxious to ensure that the proper processes are followed. Without more, this degree of “mirroring” of text from the Code of Practice cannot, in my view, properly found a conclusion that the vacancy is not genuine.
The fact that the sponsor had not provided details whether Mr Suny’s previous “roles were full or part time” in Bangladesh did not make any difference and was not “relevant to this vacancy in any direct sense.” Taken together the features of the case were such that not one of the points relied on by the Home Office could found a rational conclusion that this vacancy was not a genuine one. It was clear to the court that judicial review in the present context represented a rationality challenge.
The outcome in Alvi UKSC 33 was a classic statement at apex court level that predictability of outcome rather than flexibility was the axiom underpinning the PBS. The tension is unusually stark but Lord Walker and Lord Hope opined in Alvi that the very high price paid in the PBS in terms of rigidity and complexity is offset by the advantages presented by predictability which their Lordships held was a “tendency that is to be commended”. Predictability, clarity and consistency in outcome are the hallmarks of the PBS and apply equally to both applicants and the Home Office. Irwin LJ held that in Mr Suny’s case the protracted and complex process of the Home Office constituted a departure from the simple, brief and predictable approach called for by the PBS. Overall, the Home Office engaged in a long process of consideration but it had failed to take simple steps of requesting information before reaching a conclusion.
Notably, none of the concerns were directly connected to the matters contained in the definition of a “genuine vacancy” in rule 6. The officials who conducted a protracted investigation and decision-making process (labelled “particularly complex” by them) never alerted the sponsor or the employee to their concerns, but at the same time permitted the process to extend. Therefore, the decision to refuse was “reached on a concatenation of points” and the situation was highly problematic. Accordingly, Irwin LJ held that:
47. In my judgment this decision cannot be defended. I would therefore remit the matter to the Upper Tribunal, so that judicial review proceedings may proceed, in the expectation that the decision will be quashed.
(ii) Underhill LJ’s concurring judgment
Underhill LJ said that the decision gave the clear impression that the decision-maker had not focused on the correct test and had mixed up various potential grounds for refusal without any proper analysis. His Lordship further explained that the nature of the court’s review function was limited and the Home Office’s decision had to be afforded respect. But in the present context, the reasons put forward by the decision-maker were incapable of justifying his conclusion.
For Underhill LJ, it was clear that the objections raised as to the genuineness of the vacancy and the suitability of employing Mr Suny were half-baked and his Lordship regarded the situation as “an ex post facto rationalisation of a decision that was not properly thought through at the time.” The decision created the impression that the decision-maker failed to focus on what test he was applying and confused various potential grounds for refusal without any proper analysis. Particularly telling in that regard was the reference to the sponsor not having tried to recruit a resident worker. Similarly, concerns about lack of experience were also confused because the decision-maker “while purporting to apply one test was, at least to some extent, applying another.” It was surely possible for other sponsors to exaggerate the requirements of the post offered. While this was a concern decision-makers needed to remain alive to, Underhill LJ took the view that Irwin LJ was correct to hold that the decision-maker’s confused ideas rendered the decision liable to being quashed.
Underhill LJ pointed out that the court’s task was made more cumbersome by the fact that the full exchanges between the Home Office and the sponsor remained undisclosed in these judicial review proceedings. His Lordship expressed some surprise because that these were not produced or disclosed and said that in the circumstances the court was able to only judge the case in light of the contents of the decision letter. He found it appropriate to add that the PBS operated on the basis of a “tick-box” exercise and, apart from the classic authority of Alvi, it was the case that Mudiyanselage EWCA Civ 65 had confirmed this approach. The decision-maker’s further inquiries may well have been justified. However, the delay was unpardonable. Underhill LJ concluded that although some of the judgments required by the process required a more sophisticated assessment, he found it difficult to see how a delay of almost 18 months could be justified, given that Mr Suny had paid an enhanced fee for expedition. The priority service required a decision to be made swiftly and a delay of 18 months was not at all acceptable in the circumstances given that an enhanced fee for expedition had been paid. So Underhill LJ was perplexed, indeed even “disappointed”, that the Home Office failed to offer no apology for its irrational behaviour.
Despite the three pillars of predictably, clarity and consistency these interesting judicial review proceedings demonstrate the frighteningly entropic manner in which the Home Office operates the PBS even in the most straightforward of cases. The outcome is clear that a simple arguable ground of appeal is a better choice than multifarious arguments which are not focussed on the real problem at hand. The Court of Appeal’s judgment leaves no doubt that the need for predictably, clarity and consistency is a two-way street.
But of course it took Mr Suny four long years to get relief in his case and he shall no doubt remain in limbo for some time to come because his case has been remitted to the Upper Tribunal and even after the decision is quashed there is no real guarantee that he will be granted his Tier 2 (General) visa.
These proceedings also expose the rapacious fashion in which the UK Home Office extorts money from migrants in application fees and then fails to deliver a standard of service that accords with the expectations on a very important government department in an advanced democratic country.
If a priority fee has been paid then a decision should not be withheld for 18 months. It should be made as a matter of priority without needless delay and endless red tape and all the victimisation that accompanies the high-handed tactics used by Home Office officials. Similarly if the UK needs cheaper foreign workers for its economy, then the Home Office should use “common sense” and the department should avoid resorting to the type of behaviour which Lord Dyson characterised as a “chimaera” in Alvi.
However, the White Paper tries to depict the UK’s “liberation” from free movement as directly creating space for people wanting to work in the UK who were previously blockaded from entering because of the strict numerical limit on Tier 2 (General).
The monthly allocations of restricted certificates of sponsorship will cease under the new system. Substantial changes will be made to the present system and the Tier 2 monthly panel will be removed to make way for continuous processing of visas throughout the year without the undue delay caused by the cyclical nature of the monthly allocation procedure. The future system will create a single route offering access to highly skilled and skilled workers from all countries. The complex and kaleidoscopic system used for sponsorship at the present time will be relaxed and the cap on the numbers of skilled workers (presently 20,700) will end.
A reformed new route said to aid a flexible labour market and support businesses will come into existence and employers of skilled migrants will no longer need to carry out a RLMT as a condition of sponsoring a worker. Overall, the Migration Advisory Committee (MAC) found that the RLMT was a cause of delay and it did not serve the intended purpose of stopping downward pressure on wages because protection is provided by payment of the Immigration Skills Charge (ISC) by employers. Since the flexibility and simplicity lost by the end of free movement needs to be compensated somehow, the future system for employing foreign workers will be more streamlined and simpler to operate.
The White Paper explained that the great majority of work visas will be processed in a matter of two to three weeks. It said that labour market flexibility will be supported by permitting nationals of the lowest risk countries to apply for a work visa in the UK and the new skilled route will include workers with intermediate level skills, at RQF 3-5 level (A level or equivalent) as well as graduate and post-graduate. In May 2019, MAC published its Full review of the Shortage Occupation List.
The minimum annual salary threshold envisaged by the White Paper was £30,000. However, this was seen as controversially high and on 24 June 2019, the
Floyd and Coulson LJJ have provided an outline of the proper approach that the Upper Tribunal should take as regards immigration judgments made in the First-tier Tribunal. The Court of Appeal also flagged up two unsatisfactory practices or attitudes which have the effect of diminishing the quality and efficiency of justice in immigration and asylum cases, namely the almost endless citation of authority by the parties’ representatives and the erroneous belief that every decision is capable of being appealed or at least reviewed with the result that neither side ever regards any decision as final. Their Lordships emphasised that the Upper Tribunal is able to set aside and remake a First-tier Tribunal decision if it makes an error of law, but not if it merely thought that it could make a better decision. The appellant, “UT”, who the court referred to as “A”, was a Sri Lankan who arrived in the UK in 2000 and claimed asylum but no decision was ever made on his asylum application. His wife, also from Sri Lanka, obtained permanent residence in 2003 and they had two children K and S born in 2001 and 2002 respectively. A was granted indefinite leave to remain in September 2008. His application for British citizenship was however refused in August 2010 because of a driving conviction. His family were granted British citizenship. His 94-year old father, who lived in Sri Lanka, became very ill in 2012 and the family planned to visit him.
By 2012 the couple’s children were 10 and nine years old, and had spent all their lives in the UK with their parents. The family held British passports but A did not have a passport at all. He thus asked the Sri Lankan embassy for an emergency travel document (ETD) to enable him to travel to Sri Lanka. For identification purposes he produced a false birth certificate and obtained the ETD to go to Sri Lanka. He then applied for entry clearance to the UK as a returning resident. However, his application was refused because his birth certificate had been discovered to be false and paragraph 320(7A) of the Immigration Rules was engaged. His family returned to the UK but he remained stranded in Sri Lanka. In due course of time FTTJ Plumptre heard his appeal and dismissed it on paragraph 320(7A) but allowed it under article 8 of the ECHR. His cross-appeal on paragraph 320(7A) was dismissed by DUTJ Davey and by the same decision the judge held that FTTJ Plumptre’s decision on article 8 was flawed and by way of a further decision he set aside her judgment and substituted a decision that A’s article 8 appeal be dismissed.
FTTJ Plumptre’s decision on article 8 gave weight to the fact that both children were born and raised in the UK that it would be very difficult for the family to re-establish itself in Sri Lanka when both parents had been in the UK for more than 13 years.
Yet strangely DUTJ Davey sided with the Home Office and labelled the decision “confusing and contradictory”. Although the FTT had rightly treated the best interests of the children as a primary consideration, DUTJ Davey was of the view that FTTJ Plumptre had not addressed the significance of the outcome of the appeal on paragraph 370(7A), or indeed the public interest, when assessing proportionality. The issue thus was whether FTTJ Plumptre’s decision contained an error of law.
The Home Office complained that the FTT had failed to engage with the totality of the evidence when addressing the question of whether it was reasonable for the family to return to Sri Lanka. It was (incorrectly) submitted that the cases showed that the consideration of article 8 outside the rules had to be holistic and universal and it was insufficient to pick out a couple of factors which pointed in A’s favour. The FTT had approached the matter from an incorrect perspective. The ECO’s decision was not to remove the family from the UK, or to separate the family from their father. Overall, it was a matter of choice for the rest of the family whether they stayed in the UK or not.
The Court of Appeal
Floyd and Coulson LJJ rejected the idea that the FTT had erred in law and they instead held that DUTJ Davey’s decisions were flawed. The court articulated the correct approach to tribunal appeals and then addressed the error of law issue.
(i) Nature and approach to appeals
Making two preliminary observations, Floyd LJ stated that the Upper Tribunal could only set aside a First-tier judgment and remake the decision if there was an error of law. The relevant statutory machinery was laid down in section 11(1) and (2) of the Tribunals, Courts and Enforcement Act 2007 and a right of appeal to the Upper Tribunal was available “on any point of law arising from a decision made by the [FTT] other than an excluded decision”. Where an error of law is identified the Upper Tribunal may, under section 12(1) and (2) of the 2007 Act, set aside the FTT’s decision and remake the decision. Moreover, the term “error of law” has a wide definition but it has to be more than the appellate tribunal disagreeing with the decision or believing that it could make a better one. The reasons given for finding there to be an error of law really matter and as Lady Hale put it in AH (Sudan)  UKHL 49:
30. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.
Thus Floyd LJ explained that first of the preliminary observations sufficiently answer the Home Office’s submissions inviting the court to “prefer” the decision of DUTJ Davey to that of FTTJ Plumptre. Even if the court were persuaded that the DUTJ Davey’s decision was far and away the superior of the two decisions, the answer to the crucial question raised by this appeal, i.e. whether the latter decision involved any error of law, remained unanswered. Moreover, his Lordship kept his second observation “firmly in mind when examining the issue of whether there was in fact any error of law which entitled the Upper tribunal to remake the decision.” In the present case, the core issue was whether the decision to refuse entry clearance to A was a justified or a disproportionate interference with the right to respect for family life and the court held that:
21. … This is an issue which faces judges of the specialist immigration tribunals on a daily basis, and the paradigm of one on which appellate courts should not “rush to find misdirections” in their decision-making.
(ii) Error of law
In A’s case the provision in section 117B(1) of the Nationality, Immigration and Asylum Act 2002 was important because “The maintenance of effective immigration controls is in the public interest.” This was the prime factor placed in the balance against A by the Home Office which said it acted to stop entry being gained by the use of deception. To prevent entry from being obtained on a false basis is in the public interest and “this consideration is entitled to appropriate weight in the balancing exercise, often decisive weight.” Applying section 117B(2) and section 117B(3), A spoke English and was his family’s breadwinner and was thus not a burden on the state. Moreover, section 117B(4) had no application to his case as he was not in the UK unlawfully while in a relationship with a qualifying partner. He had had indefinite leave to remain since 2008 and the Home Office’s failure to process his asylum application meant that it was in no position to argue that his relationship with Mrs A was established when he was in the UK unlawfully. Hence, his family life with his wife was to be given proper weight.
It was true that under section 117B(6) does not apply to re-entry clearance, and only to removal, but it nonetheless shows Parliament’s position that a parent’s relationship with a qualifying child might not assist an application for leave to remain if that relationship could reasonably be carried on abroad. In the present case the question boiled down to whether it is reasonable to expect the children to join their father in Sri Lanka, this was the approach of the Supreme Court in KO (Nigeria) UKSC 53(discussedhere) and what it is reasonable for a qualifying child to do does not involve a consideration of the public interest, but needs to be decided in the context of where the parents are expected to be. Floyd LJ said that the best interests of the children were obviously a distinct, indeed, primary consideration. As to whether FTTJ Plumptre lost sight of her finding that A had knowingly used a false document to obtain his entry clearance, and the public interest, when conducting her proportionality assessment under article 8, Floyd LJ held that:
25. … I think it would be most unfair to the judge to assume that this was so. The judge spent the first part of her decision examining, in painstaking detail, the case under paragraph 320(7A) and reaching very clear conclusions on it.
The court found it “fanciful to suppose” that FTTJ Plumptre overlooked matters pertaining to the public interest and it was the opinion of Floyd LJ that paragraph 320(7A) was “beginning and the end of the reason why A was not allowed back into the UK, where he had already enjoyed indefinite leave to remain.” Moreover, DUTJ Davey’s decision was quite dubious because he totally failed to identify any contradiction in FTTJ Plumptre’s judgment. While her judgment was compressed, it was not erroneous and a need arose to venture beyond general, literary criticism because in Jones  UKSC 19 it was the view of Lord Hope that:
25. … It is well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it.
In R v IAT, ex parte Mahmud Khan QB 790, a case concerning a Pakistani national who had allegedly married an English prostitute named Cynthia Mitchell in Bradford out of convenience and was made the target of a deportation order, quashing the decision Lord Lane CJ held that the issues which the tribunal is deciding and the basis on which the tribunal reaches its decision may be set out directly or by inference. A tribunal’s failure to do this renders the decision liable to being quashed. The reasoning proffered by Lord Lane rested on the principle that a party appearing before a tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the tribunal is addressing its mind. Sometimes this is obvious and sometimes it is not. Lord Lane also pointed out that the appellant is entitled to know the basis of fact on which the conclusion has been reached and “in many cases it may be quite obvious without the necessity of expressly stating it, in others it may not.”
Overall DUTJ Davey found fault with FTTJ Plumptre’s decision because she (i) had never answered the question, applying the law she had set out, whether or not article 8 was engaged with outside of the rules, and (ii) failed to reach a clear conclusion on the issue of the unreasonableness of A and the children establishing family life in Sri Lanka when they were born here and spent their formative years here and where their mother was a British national as well. The first criticism was in one sense correct but given that DUTJ Davey also found that A’s case was of the type that clearly warranted consideration on article 8 outside the rules, the first criticism did not amount to an error of law. Floyd LJ found the second criticism as “a somewhat puzzling way of stating the point of law” because the facts which the DUTJ emphasised were of the type that “would point towards, rather than contradict, unreasonableness.” His Lordship found no substance in the DUTJ’s criticism and held that FTTJ Plumptre was correct in her analysis that A’s use of deception to re-enter the UK was a problem which was not created by his family and it was not reasonable to expect Mrs A and the children to abandon their life in the UK to be with their father in Sri Lanka.
The Home Office was very quick to try to milk the misconceived findings of DUTJ Davey in the Court of Appeal and their counsel (unwisely) attempted to extract mileage out of DUTJ Davey’s findings that FTTJ Plumptre to provide (i) adequate reasons when dealing with the children’s best interests, (ii) adequate reasons to deal with the issue of public interest, and (iii) adequate reasons to deal with why the decision was disproportionate. None of these complaints came close to amounting to an error of law and Floyd LJ held that FTTJ Plumptre had been “tolerably clear” in her conclusions that refusal of entry clearance was a disproportionate interference with article 8. Not every judge would have held that the appeal should be allowed but that was FTTJ Plumptre’s conclusion and Floyd LJ explained that:
31. … There was no error of law revealed by reaching that conclusion, or by failing to give “reasons for reasons”.
Although unopposed other attempts to exploit the situation also backfired for Home Office counsel because all his other points, over and above DUTJ Davey’s findings, were totally off target and lacked any legal substance. Floyd LJ rejected the submission that the family had the choice to return to Sri Lanka to be with A and said that events need to be “assessed in the real world, and not stripped of their context.” Overall, DUTJ Davey had been wrong to indulge in remaking the decision and the court reinstated FTTJ Plumptre’s decision and rejected the unattractive strong-arm tactics employed in this appeal by the Home Office and their counsel.
(iii) Twin factors undermining appeals
Coulson LJ added that the present proceedings highlighted two unsatisfactory practices or attitudes of the parties in both tiers of the tribunal that commonly occur in cases before the Court of Appeal. Such behaviour increases the burden on an already over-worked judiciary and “diminish the quality and efficiency of justice in immigration and asylum work.”
First of all, the court was very unhappy with the haphazard manner in which the parties’ representatives cite almost endless authority which concerns the judges so much that they find it necessary to “be seen to be applying all the relevant dicta that any application of those principles to the particular facts of the case is presented almost as an afterthought.” In the present case, FTTJ Plumptre’s application of the principles to the facts would have been much clearer if fewer authorities had been cited and the parties did not overwhelm the judge. More analysis of the balancing exercise on the facts that the tribunal was being asked to perform was needed instead. Moreover, the second problem was the prevalence of:
38. … the erroneous belief that every decision, no matter its provenance, nature or form, is always capable of being appealed or at least reviewed, such that neither side ever regards any decision as final.
The court concluded that the appeal before it demonstrated that FTTJ Plumptre’s decision to allow A’s appeal in 2014 should have been accepted without any further argument and appeal by the Home Office. The upshot was that the twin factors identified by the court operated to overburden the judiciary and undermine the quality and efficiency of justice in immigration and asylum cases.
Every time the Home Office loses a “controversial” case (for e.g. involving deception or criminality) in the First-tier Tribunal it automatically appeals to the Upper Tribunal without any pause for thought in a completely senseless and stupid way. Of course most immigration judges are only too happy to grant permission to appeal to the government without any hesitation despite the fact that the grounds of appeal are misconceived. From that angle, the Court of Appeal’s judgment in this case is a very welcome development and will come in handy because of the clear point made by Floyd and Coulson LJJ that judges must not be overwhelmed by the production of endless authorities and the parties must only mount appeals against tribunal decisions where an error of law arguably exists and not otherwise.
The outcome in this case also serves as a reminder that it is futile to regurgitate, as the government’s counsel did, a litany of weak points because most judges find it much more attractive if a party makes only one good legal point rather than throwing the kitchen sink at them. Interestingly, from the details set out in the court’s judgment, A’s counsel seems to have outwitted her less experienced counterpart by not opposing his reformulations of DUTJ Davey’s criticism of FTTJ Plumptre’s decision to allow the appeal on article 8. The court was still quite lenient in its criticism of his tactics given that in the past the courts have excoriated counsel acting for foreign criminals by accusing them of arguing cases on the basis of a litany of forensic criticisms of particular findings of the First-tier Tribunal and a very clear example of this can be found in VHR (unmeritorious grounds)  UKUT 367 (IAC).
So once again, despite the positive outcome for A, this judgment shows that the courts are soft on those representing the Home Office and the judiciary applies a different yardstick for conduct when it comes to measuring the behaviour of lawyers who happen to be representing the Home Office. The double standards in that regard are all too apparent.
The Court of Appeal has held that FTTJ Burnett had been entitled to hold that the deportation of a Jamaican citizen (JC) who had married a British national would be unduly harsh because of its effect on his British son (JG). Underhill, King and Moylan LJJ also found that the very real risk of serious psychological harm to the child had crossed the threshold contained in section 117C(6) of the Nationality, Immigration and Asylum Act 2002 (as amended) and therefore amounted to very compelling circumstances. It was the government’s appeal against the decision of the Upper Tribunal where McCloskey J and UTJ Lindsley dismissed the Home Office’s appeal against FTTJ Burnett’s decision to allow JC’s appeal against a deportation order. Underhill LJ prefaced his decision with the point that this “case has had a troubled history” and his Lordship dismissed the appeal without calling on JC’s counsel. JC entered the UK in 2002 and married NG, a British citizen, who already had three children (who lived with them as JC’s step-children). JC and NG had no children but NG had a further child with another partner and JC had a child, a British citizen, from another relationship with CM. The child, i.e. JG, was aged five at the FTT hearing, and FTTJ Burnett allowed JC’s appeal because of the impact that his deportation would have upon his son.
In addition to his bad criminal record JC also had quite a complex immigration history. As for his criminality, in February 2003 he was cautioned for possessing an offensive weapon in public. Thereafter, in early 2004, he was sentenced to 12 months’ imprisonment for possession of Class A drugs (heroin and cocaine) with intent to supply. In 2011 he was sentenced to five years’ imprisonment on counts of possession of heroin and cocaine with intent to supply. Hence, his immigration history was complex because after his 2004 conviction he was the subject of a deportation order. However, his appeal was successful and he was later granted discretionary leave to remain until May 2011. He applied for indefinite leave to remain later but it was refused and the appeal was dismissed and he thus had no leave to remain upon his release from custody in August 2013. Notably, the deportation order in question for present proceedings was made in June 2013 under section 32 of the UK Borders Act 2007 whereby the Home Office must make a deportation order in the case of a foreign national who has been convicted of an offence for which he was sentenced to at least 12 months’ imprisonment.
His situation however fell within exception 2 of section 117C(5) of the NIAA, i.e. that he had a genuine and subsisting relationship with JG, a qualifying child, and with his stepchildren, and the overall effect of his deportation on them would be “unduly harsh”.
FTTJ Burnett allowed JC’s appeal because in his view in all the circumstances his deportation would result in separation from the children and also his partner. Although in the public interest, deportation was outweighed by JC’s interests and those of the children (including step children and wider extended family) and his partner. FTTJ Burnett was careful and made his decision in light of MA (Somalia) EWCA Civ 48 which underlines “the great weight to be attached to the public interest in the deportation of foreign criminals” and refers to both MF (Nigeria) EWCA Civ 1192 and SS (Nigeria)  EWCA Civ 550. Thus deportation was disproportionate and would breach JC’s rights under article 8 of the ECHR and he met the first exception set out in section 33 of the 2007 Act. FTTJ Burnett also provided consideration to the best interests as a primary consideration.
Notably, JG displayed symptoms of emotional and psychological damage and he reacted adversely to his father’s imprisonment. Medical reports indicated that he was making threats of self-harm and displaying symptoms of emotional and psychological damage. The NHS found that JG had also suffered from “sleep difficulties and tempers, physicality and emotional upset”, with “oppositional behaviours and threats of self-harming” and that his bond with JC was “intense”. Moreover, JC held himself responsible for JG’s predicament as it arose owing to him being away in prison. The upshot was, as FTTJ Burnett put it, “there will be serious emotional harm to the child if the appellant is deported at this time” and thus he held that “it would be unduly harsh for the child to remain in the UK without the appellant”.
In the Upper Tribunal, the Home Office conceded that FTTJ Burnett’s decision was “replete with correct self-directions in law” and UTJ Lindsley and McCloskey J reminded themselves, by reference to Edwards v Bairstow AC 14, of the limited basis on which an error of law could be found in the FTT’s conclusions on factual matters where the tribunal judge had directed himself correctly. In effect, the decision had to be shown to be irrational, or perverse and the no such error arose in the present case.
Grounds of Appeal
It was undisputed that FTTJ Burnett correctly directed himself as to the exercise required by section 117C of the 2002 Act and the corresponding provisions of paragraphs 398-399A of the Immigration Rules. In sum, he clearly understood that JC needed to show that there were very compelling circumstances over and above those covered by paragraphs 399 and 399A of the rules (and Exceptions 1 and 2 in section 117C) which represented a very high hurdle, given the great weight of the public interest in deporting foreign criminals who had committed offence attracting a sentence of over four years’ imprisonment.
The Home Office still submitted that despite all those correct self-directions FTTJ Burnett failed sufficiently to explain how he had applied his self-directions to the case and failed to apply them in making his assessment, i.e. in its application of the law to the facts FTTJ Burnett imposed too low a standard to the phrase very compelling and did not require the other factors to be very compelling. It was also argued that FTTJ Burnett was wrong to assess JC’s case separately under section 117C and under article 8, over and above its assessment by reference to the Immigration Rules. Another complaint was the Upper Tribunal had wrongly treated the government’s appeal as a straightforward “perversity appeal”.
The Court of Appeal
Underhill, King and Moylan LJJ were of the view that the Home Office was just disputing the tribunal’s findings of fact and the court lamented that it failed to make “any real attempt to identify an error of law”. During the course of its judgment the court addressed the correct test for the deportation of foreign criminals sentenced to more than four years’ imprisonment, FTTJ Burnett’s reasoning and his overall approach to article 8.
(i) The correct test
Addressing the correct test for the deportation of foreign criminals, Underhill LJ held in light of Rhuppiah  EWCA Civ 803 that the 2002 Act requires that tribunals must adopt a structured approach, applying the statutory steps rather than simply treating the Home Office policy as regards the public interest as a relevant consideration. NA (Pakistan)  EWCA Civ 662 had concerned the meaning of the phrase found in section 117C (6) “very compelling circumstances, over and above those described in Exceptions 1 and 2” and Jackson, Sharp and Sales LJJ explained at that outside of the “bare case of the kind described in Exceptions 1 or 2”, if a foreign criminal was able to point to factors identified in Exceptions 1 and 2 of an especially compelling kind in aid of article 8, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, they could constitute “very compelling circumstances, over and above those described in Exceptions 1 and 2”, whether taken by alone or together with other factors relevant to application of article 8.
To the extent that JC sought to rely on the effect of his deportation on his son JG, a qualifying child within the meaning of section 117D(1), it would not be enough to show that that effect would be “unduly harsh” in the sense contemplated in KO (Nigeria)  UKSC 53 (discussedhere). Underhill LJ held that:
16. … That would satisfy Exception 1, but because his case fell within section 117C (6) he needed to show something over and above that, which meant showing that the circumstances in his case were, in Jackson LJ’s phrase in NA, “especially compelling”. In short, at the risk of sounding flippant, he needed to show that the impact on his son was “extra unduly harsh”.
(ii) Perverse or insufficient reasoning?
In considering whether FTTJ Burnett’s decision was perverse or lacked sufficient reasoning, the court held that he had directed himself correctly in relation to the exercise required by section 117C and the provisions in paragraphs 398-399A of the Immigration Rules. The challenge was a challenge on perversity and reasons.
The evidence before FTTJ Burnett was capable of showing that there was a risk of harm to JG’s mental health that reached the necessary threshold. It did not rely on the “mere” impact of separation. Rather it relied on the specific psychological damage evidenced by the reports. Yet aspects of FTTJ Burnett’s decision were unclear and Underhill LJ remarked that the:
32. … Judge’s summary of the medical and professional evidence does not itself paint a very full picture of the situation, or of the precise extent of JG’s problems, though the references to self-harm are striking; and it may be that if we were making our own judgment I might not have regarded it as as compelling as the Judge did. But that is not the role of this Court: we could only, so far as this ground is concerned, go behind the Judge’s decision if it was one which was not reasonably open to him on the evidence. For such a challenge to succeed it would have been necessary for us to be taken through the evidence to show that it was incapable of supporting a conclusion that the harm to JG reached the necessary threshold.
The role of the Court of Appeal was different. It could go behind FTTJ Burnett’s decision only if it was one which was not reasonably open to him on the evidence.
A challenge of this nature could only be successful if the court was taken through the evidence to show that such evidential material was incapable of supporting a conclusion that the harm to JG reached the necessary threshold. The evidence before the FTT was not in the papers before the court and it was therefore no basis on which the court could hold that FTTJ Burnett’s decision was not reasonably open to him and thus the court upheld the Upper Tribunal’s decision that perversity had not been established.
The pleaded ground before the court said that it was necessary for FTTJ Burnett to “identify” the circumstances on which he relied on as being over and above Exceptions 1 and 2 (or paragraphs 399 and 399A) and that he failed to do so. When giving permission the court said that there might be value in it imparting guidance as to “the extent to which it is necessary to articulate at each stage the accumulative factors leading to the conclusion that article 8 trumps the public interest in deportation”.
Underhill LJ emphasised the importance of the FTT making it clear in its reasons that it had reached its decision by performing the structured analysis stipulated by section 117C and the Immigration Rules. If it believed that the high threshold required by section 117C(6) had been crossed it had to say why. The court said:
34. … It may be possible to identify some particular factor that is decisive, in which case it should do so. But that will not always be the case. It may be simply that the factors that would be sufficient to satisfy paragraphs 399 and/or 399A (i.e. Exceptions 1 and/or 2 in section 117C) are present to a specially high degree: see the final sentence of para. 29 of the judgment in NA (Pakistan). In such a case all that the tribunal can do is make it clear that that is its view.
Underhill LJ inclined to the view that FTTJ Burnett’s reasons were sufficiently clear that he did indeed take the correct approach, and why he regarded the threshold in section 117(6) as crossed. The severity of the harm that JG was likely to suffer if JC were deported remained the very compelling circumstance on which FTTJ Burnett relied. The court followed the approach found in the end of paragraph 30 of NA (Pakistan). FTTJ Burnett had also taken into account the impact on the stepchildren but this was unobjectionable since the test could be satisfied by a combination of circumstances. Overall, it was clear that the only element capable of crossing the threshold was the impact on JG.
(iii) Freestanding Article 8 assessment
According to the court, FTTJ Burnett was wrong to assess the JC’s case separately under section 117C and article 8. It held that conducting a freestanding article 8 assessment was inappropriate and the article 8 assessment should be conducted in the context of whether there were very compelling circumstances of the kind required by paragraph 398 and section 117C(6). Underhill LJ proceeded to hold that FTTJ Burnett’s error on freestanding article 8 did not vitiate his conclusion by reference to the Immigration Rules and his Lordship complimented his junior judge by holding that his “Rules-based analysis was unimpeachable on its face, and in the absence of any sign that he fell into the error alleged I do not think it can be impeached on the basis that he subsequently performed a different exercise.”
People wanting a harsher deportation laws will find it truly astonishing to learn that FTTJ Burnett allowed a deportation appeal where the appellant had serially supplied crack and heroin to vulnerable addicts. They can rest assured that such an outcome is very rare and numerous judges inevitably side with the respondent Home Office and are in reality little more than an extension of a very ugly system of racism where foreigners are treated worse than dirt.
On the other hand, Underhill LJ offered surprisingly little criticism of the pathetic and frivolous appeal pursued by the Home Office. It would indeed have been very refreshing to see some judicial criticism directed at the government, especially given that the “case has had a troubled history”. Sadly, however, the incompetence of the Home Office is often tolerated and the double standards in treatment are all too apparent and the reticence of the court to call out official ineptitude in this case shows that the government is above the law when it comes to pursuing unmeritorious cases.
In RA (section 117C: “unduly harsh”: offence: seriousness) Iraq UKUT 123 (IAC) together with MS (section 117C(6): “very compelling circumstances”) Philippines UKUT 122 (IAC) which were heard consecutively, the Upper Tribunal considered how section 117C (article 8: additional considerations in cases involving foreign criminals) of the Nationality, Immigration and Asylum Act 2002 should be construed after Lord Carnwath’s crucial analysis in the Supreme Court’s judgment in KO (Nigeria) UKSC 53 (discussed here). The judgments in these cases were delivered shortly after the earlier decision in JG (section 117B(6): “reasonable to leave” UK) Turkey UKUT 72 (IAC) which concerned paragraphs 18 and 19 of KO (Nigeria) and where the Upper Tribunal held that section 117B(6) of the 2002 Act requires a court or tribunal to hypothesise that the child in question would leave the UK, even if this is not likely to be the case, and ask whether it would be reasonable to expect the child to do so (discussed here). “MS”, a Philippines citizen who entered the UK aged six as his mother’s dependant, claimed to be a victim of child abuse at his step-father’s hands. He ran away from home and was put into a boys’ home where he encountered ex-child soldiers from Africa, he also said that a Nazi group kidnapped and tortured him. He failed to integrate and claimed he was groomed by violent criminal gangs and was recruited into a dangerous crime syndicate.
He therefore had a very lengthy criminal record including serious convictions for firearms offences and life imprisonment for burglary with a minimum term of 10 years to be served before being considered for release. His extreme violence and leading role meant that he was guilty of “crimes of exceptional seriousness” but he resisted deportation on the basis that his removal from the UK would result in a breach of the ECHRand theRefugee Convention 1951. The decision-maker did not accept his claims. The First-tier Tribunal dismissed his appeal. RA, an Iraqi citizen, came to the UK clandestinely at the age of 14 and claimed asylum. It was refused and discretionary leave was granted. But the decision-maker refused to renew RA’s discretionary leave and he remained in the UK without leave until his marriage to a British citizen of Iraqi/Kurdish extraction resulted in them having a child and he was granted limited leave to remain owing to his family life. Then he pleaded guilty to the offence of possessing/controlling a false/improperly obtained identity document (a false passport) and was sentenced to 12 months’ imprisonment in light of his guilty plea.
RA had intended to visit his mother on the false Iraqi passport she had sent to him from Iraq and such a crime undermined the foundations of the immigration system. The First-tier Tribunal allowed his appeal against the decision to make a deportation order against him and his counsel conceded that the judge failed to apply the correct test and mistakenly asked whether there were insurmountable obstacles to family life continuing in Iraq, rather than the test required by section 117C and paragraph 399 of the Immigration Rules. Upon further hearing by the Upper Tribunal, RA’s appeal was dismissed despite his evidence that he trained in the UK as a barber, his daughter understood very little Kurdish and “asks all her questions in English”, and despite his close family ties to his in-laws. His wife, who had studied one year of bio-medical science at university, confirmed their daughter’s attachment to him.
Overall, the wife and daughter could not reside permanently in northern Iraq and the former said that it was not possible for them to communicate with RA by Skype and they could not afford to visit the appellant in a third country if he was deported from the UK.
It was undisputed that RA had (i) a genuine and subsisting relationship with his wife, who was a “qualifying partner” by reason of her status as a British citizen, and (ii) a subsisting parental relationship with a qualifying child; namely, his British citizen daughter.
Both these appeals were decided by Lane J and UTJJ Gill and Coker and in RA the Upper Tribunal made these four points in the headnote:
(1) In KO (Nigeria) & Others v Secretary of State for the Home Department  UKSC 53, the approval by the Supreme Court of the test of “unduly harsh” in section 117C(5) of the Nationality, Immigration and Asylum Act 2002, formulated by the Upper Tribunal in MK (Sierra Leone)  UKUT 223 (IAC), does not mean that the test includes the way in which the Upper Tribunal applied its formulation to the facts of the case before it.
(2) The way in which a court or tribunal should approach section 117C remains as set out in the judgment of Jackson LJ in NA (Pakistan)  EWCA Civ 662.
(3) Section 117C(6) applies to both categories of foreign criminals described by Lord Carnwath in paragraph 20 of KO (Nigeria); namely, those who have not been sentenced to imprisonment of 4 years or more, and those who have. Determining the seriousness of the particular offence will normally be by reference to the length of sentence imposed and what the sentencing judge had to say about seriousness and mitigation; but the ultimate decision is for the court or tribunal deciding the deportation case.
(4) Rehabilitation will not ordinarily bear material weight in favour of a foreign criminal.
Moreover in MS the Upper Tribunal made these two points in the headnote contains:
(1) In determining pursuant to section 117C(6) of the Nationality, Immigration and Asylum Act 2002 whether there are very compelling circumstances, over and above those described in Exceptions 1 and 2 in subsections (4) and (5), such as to outweigh the public interest in the deportation of a foreign criminal, a court or tribunal must take into account, together with any other relevant public interest considerations, the seriousness of the particular offence of which the foreign criminal was convicted; not merely whether the foreign criminal was or was not sentenced to imprisonment of more than 4 years. Nothing in KO (Nigeria)  UKSC 53 demands a contrary conclusion.
(2) There is nothing in Hesham Ali  UKSC 60 that requires a court or tribunal to eschew the principle of public deterrence, as an element of the public interest, in determining a deportation appeal by reference to section 117C(6).
Section 117C(3) requires that in the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies. Under section 117C(4), Exception 1 applies where C (a) has been lawfully resident in the UK for most of his life, (b) is socially and culturally integrated in the UK, and (c) there would be very significant obstacles to his integration into the country to which his is proposed to be deported. Section 117C(5) states that Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
In both cases the Upper Tribunal made some telling points about the treatment of the legal issues surrounding the deportation of foreign criminals. First of all, in RA the Upper Tribunal found that there was a lacuna in Lord Carnwath’s analysis of section 117C in KO (Nigeria) because his Lordship elided in touching upon the approach taken by the Court of Appeal in NA (Pakistan) where Jackson LJ saidthat “something has obviously gone amiss with the drafting of section 117C(3).”
In the court’s view “the lacuna in section 117C(3) is an obvious drafting error” and it was the case that even the government invited Jackson, Sharp and Sales LJJ to hold that Parliament must have intended medium offenders to have the same fall back protection as serious offenders. This conclusion was driven by the framing of the new Part 5A of the 2002 Act which provides a structured basis for application of and compliance with article 8, rather than disapplying it.
Thus, the solution was to read section 117C(6) not only to “four years or more” cases but also to those other foreign criminals sentenced to imprisonment for a period of less than four years. This was in line with the circumstances in which the courts in interpreting statutes can correct obvious drafting errors pursuant to the decision in Inco Europe Ltd v First Choice Distribution  UKHL 15.
Therefore, in NA (Pakistan) it was Jackson LJ’s approach to proceed on the basis that fall back protection contemplated by section 117C(6) avails both (i) serious offenders and (ii) medium offenders who fall outside Exceptions 1 and 2. Overall, nothing in KO (Nigeria) casts doubt upon the decision NA (Pakistan) and “Lord Carnwath had, in fact, nothing of substance to say about section 117C(6).”
Accordingly, on a proper construction of section 117C(3), the fall back protection provides that for medium offenders “the public interest requires C’s deportation unless Exception 1 or Exception 2 applies or unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.” Jackson LJ considered the meaning of “very exceptional circumstances” at paragraphs 28–34 of NA (Pakistan).
The Upper Tribunal took the view that the test in section 117C(6) is extremely demanding. While no “exceptionality” requirement exists, the statutory scheme is such that where the circumstances are sufficiently compelling to outweigh the high public interest deportation will be rare and everyday family life will not be sufficient to displace the public interest. Jackson LJ had accepted that children’s best interests are a weighty consideration but criminality means that offenders may be lengthily separated from their children contrary to their best interests.
Although it is highly desirable for children to remain with both parents, this alone is not sufficiently compelling to outweigh the public interest in the deportation foreign criminals and as seen in CT (Vietnam) EWCA Civ 488 neither the fact of British nationality of children nor their likely lengthy separation from their father amount to exceptional circumstances which outweigh the public interest in deportation.
The Upper Tribunal did not apologise for dwelling on Jackson LJ’s judgment in NA (Pakistan). And navigating through paragraphs 36 (medium offender), 37 (serious offender) and 38 (Strasbourg jurisprudence and section 117C) it held that despite being decided prior to Hesham Ali UKSC 60, whereby the Immigration Rules relating to deportation were not a “complete code”, the Upper Tribunal found that Jackson LJ’s judgment remains authoritative and the finding in Hesham Ali that “very compelling circumstances” means “a very strong claim indeed” accords with Jackson LJ’s view of the nature of the test. In the case of any foreign criminal, a court or tribunal determining whether “there are very compelling circumstances, over and above those described in Exceptions 1 and 2”, will need to have regard to the seriousness of the offence. How that task is to be approached by a judge is found in Suckoo EWCA Civ 39 where Simon LJ held that generally the facts of the conviction and sentence will be sufficient, matters of mitigation will be taken into account at the sentencing hearing. Usually, the judge will assign the offence a place within the relevant category will be by reference to the length of sentence imposed and what the sentencing judge said about seriousness and mitigation. But in the case of Barry EWCA Civ 790, Singh LJ made it clear that the ultimate decision is for the court or tribunal.
As for the issues surrounding the significance of rehabilitation, as a part of the exercise under section 117C(6), the Upper Tribunal pointed out that in Danso  EWCA Civ 596 it was the view of the Court of Appeal that courses aimed at rehabilitation, undertaken during jail time, are often unlikely to bear material weight, for the simple reason that they are a commonplace; particularly in the case of sexual offenders. The absence of any reoffending is highly unlikely to have a material bearing since everyone is expected to refrain from criminality. Thus rehabilitation does no more than returning the offender to the place that society expects everyone to be. As held in SE (Zimbabwe) EWCA Civ 256, there is no material weight which ordinarily falls to be given to rehabilitation in the proportionality balance. On the other hand, LG (Colombia)  EWCA Civ 1225 shows that it is not possible to say that rehabilitation will never be capable of playing a significant role. Any judicial departure from the norm needs to be fully reasoned.
RA argued that the Upper Tribunal needed to adopt the approach in MK (Sierra Leone) UKUT 223 (IAC) to children aged at or around seven and that it must likewise take “judicial notice” of the fact that children at this age are “at a critical stage of their development”. He also argued that it was unnecessary and, inappropriate for a tribunal to expect to see expert evidence before making such a finding.
The submission was rejected and the Upper Tribunal noted that in MK (Sierra Leone) it was the clear view of McCloskey J that he was adjudicating upon a “difficult and borderline case” which involved “an exercise bereft of bright luminous lines”. The value judgment reached by McCloskey J did not preclude the Upper Tribunal from lawfully arriving at a different conclusion. Indeed, in KO (Nigeria) it was also Lord Carnwath’s view that the “unduly harsh” test has a dual aspect. It does not suffice that the outcome is “severe” or “bleak” and the adverb “unduly” must be given proper effect and so the position is quite distant from the test of “reasonableness” set out in section 117B(6)(b).
Despite factors favouring RA, such as his relationship with his British daughter and wife, the Upper Tribunal concluded that the weight of the public interest was such that there were very compelling circumstances, within the meaning of section 117C(6), which would render RA’s deportation a disproportionate interference with his and his wife and daughter’s article 8 rights (irrespective of whether one examined each of their positions both individually and together). RA’s wife’s assertion that his deportation would cause her to commit suicide was seen by the Upper tribunal as a desperate attempt to increase the chances of his appeal succeeding. The tribunal accepted that Skype was insufficient as a means of contact between father and child but that problem was easily overcome since the mother had visited northern Iraq on past occasions and could easily take the daughter to visit RA if that were necessary.
Exception 2 did not apply and the Upper tribunal examined whether there were any compelling circumstances, over and above those described in Exceptions 1 and 2. RA’s sentence was the bottom of the range covered by section 117C(3). The offence was still a serious one and it counted against him. The public interest in deporting him was high and taking account of the proportionality balance, it was important to have regard to the fact that, under section 117B(4)(b), RA’s relationship with his wife was established in 2012 at a time when he was in the UK unlawfully. He never possessed ILR. Applying section 117B(5) indicated clearly that little weight should be given to his private life in the UK and his employment history in the UK was non-existent. Despite his real relationship with his wife and daughter the Upper Tribunal held that the weight of the public interest was such that it was not possible to say that there were very compelling circumstances, as required by section 117C(6), which would cause a disproportionate interference with the article 8 rights of the family by RA’s deportation.
In MS (Philippines) the Upper Tribunal reiterated its clear position that nothing in KO (Nigeria) disturbed paragraphs 25 to 27 of NA (Pakistan), where Jackson LJ held that the government’s concession was correctly made and that the scope of section 117C(6) extends beyond the words written in statute. Furthermore, the Upper Tribunal did not know whether the Supreme Court’s attention was drawn to NA (Pakistan) and it said that it would be unsurprising if it was not, given that the nature of the “foreign criminal” appeals before the apex court, which did not require analysis beyond Exception 1 and Exception 2 in subsections (4) and (5). Thus it was best to be particularly cautious in attributing any wider significance to paragraphs 20–22 of KO (Nigeria) than is expressly contained in the language of those paragraphs.
Moreover, in paragraph 21 of KO (Nigeria) it was not Lord Carnwath’s view that section 117C(2) must be read “as no more than a preamble to the more specific rules” and merely, that “it could equally be read as” only having such an effect. Therefore it is incorrect to say KO (Nigeria) compels the finding that section 117C(2) is merely declaratory of the distinction between foreign criminals who have not been sentenced to imprisonment of four years or more, and those who have.
This interesting pair of cases, i.e. RA (Iraq) and MS (Philippines), demonstrate that the treatment of the issues in KO (Nigeria) – which were supposed to be test appeals –was less comprehensive that it should have been in relation to the vexing provisions contained in section 117C about article 8 and additional considerations in cases involving foreign criminals. Equally, in comparative perspective with JG (Turkey), the outcome in this pair of cases also shows that the article 8 provisions in Part 5A of the NIAA 2002 function in favour of “undeserving” immigrants with poor immigration records but do much less to help those persons who engage in criminality. Overall, these two cases make interesting comparative reading with JG (Jamaica)  EWCA Civ 982 where the Court of Appeal dismissed the Home Office’s appeal in a case where a heroin/cocaine dealer had succeeded on the basis of article 8 and the impact of his deportation on his son.
Sarmiento and Sharpston view Zambrano (C-34/09, EU:C:2011:124), which caused a stir because of the substance of rights test, as a “high-water mark” in the CJEU’s jurisprudence. Thereafter, the court began to suffer from “citizenship exhaustion” and the “test was shelved under the section reserved for judgments of last resort to be used in exceptional circumstances only” because of the restrictive approach taken in Dereci (C-256/11, EU:C:2011:734) and O and B (C-456/12, EU:C:2014:135). In Zambrano, which like Rottman (C-135/08, EU:C:2010:104) concerned a purely internal situation, the CJEU held that article 20 TFEU precludes national measures which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. The appeals of Patel and Shah provide the Supreme Court with the opportunity to address the question whether the decision in Chavez-Vilchez (C-133/15, EU:C:2017:354, discussed here) has altered the approach to the question of derivative claims for residence in the UK by those without rights of residence, based upon their care of British citizens who are their “direct relatives”. Chavez-Vilchez concerned eight third-country national mothers of EU citizen children. By contrast, both of Mr Nilay Patel’s parents are British citizens. He is an Indian national who entered the UK as a student. But he provides primary care to his elderly father who suffers from final stage kidney disease.
His mother has a heart problem and suffers from poor mobility owing to very poor knee function. Mr Patel’s application for ILR outside the rules was refused and the appeal was dismissed. Mr Adil Shah is a Pakistani national. He entered the UK as a student and is the primary carer for his British citizen child. His wife is a British citizen and works full-time. Mr Shah’s student visa was revoked and he was unsuccessful in his human rights claim. Both applied for a derivative residence card under regulation 15A of the then Immigration (European Economic Area) Regulations 2006 whereby, in order to implement Zambrano, a non-EU citizen is entitled to a derivative right to reside in the UK if they are a primary carer of a British citizen residing in the UK and the British citizen would not be able to reside in the UK or another EEA state if the non-citizen were made to leave. The decision-maker refused to grant a residence card in both cases on the basis that the relatives they cared for would not be forced to leave the UK if the appellants left. Both the FTT and the UT allowed Mr Shah’s appeal. However, both tiers of the tribunal dismissed Mr Patel’s appeal. The Court of Appeal subsequently held that Chavez-Vilchez did not alter the Zambrano principle and Irwin LJ found that reported cases in England that implement Zambrano but pre-date Chavez-Vilchez do not hold diminished authority.
In Ayinde and Thinjom UKUT 560 (IAC) the UT held the third country national must establish as a fact that the British citizen “would be forced to leave the territory of the European Union”. This view gives a narrow and literalist approach to the test of inability – that the British citizen would be “unable” to remain in the UK/EEA if the third country national left – laid down in regulation 15A. Thus, Mr Patel argued in the Court of Appeal that regulation 15A cannot reflect Parliament’s intention when applying the Zambrano principle to the position of cared-for adults.
In O and L (C-356/11 and C-357/11, EU:C:2012:776), the CJEU held that the derivative right is “specific in character” that only arises “exceptionally” where the “effectiveness of the Union citizenship enjoyed by that national would otherwise be undermined”. Thus, it is engaged in “situations characterised by the circumstance that the Union citizen had, in fact, to leave”.
The Court of Appeal
Lindblom, Irwin and Thirlwall LJJ considered Chavez-Vilchez to only be a mere reminder that the Zambrano principle has to be carefully applied, with a focus on whether the EU citizen child or dependant could remain in the UK in practice, not just in legal theory. They unanimously held that the test of compulsion remained unaltered. Furthermore, marriage to a British citizen did not bring automatic residence in the UK for the spouse and the Zambrano principle could not be regarded by non-EU citizens as a back-door route to residence in the UK. The government pointed out that CJEU authority after Zambrano and before Chavez-Vilchez distinguished between “choice” and “compulsion” in accordance with the Zambrano principle.
Irwin LJ observed that CJEU case law before Chavez-Vilchez differentiated between cases where both parents, or the single parent with care of a child or children, were leaving the EU, and cases where one parent in a family could remain. The departure of both parents from Belgium in Zambrano would in practice compel the departure of their very young children, thereby inevitably depriving them of their EU citizenship rights. The mother in Dereci had Austrian citizenship. If she chose to remain in Austria, her children could remain. If they left Austria, it was an exercise of choice to keep the family together but not a deprivation of rights by compulsion. That distinction stood despite the consideration of family life enshrined in article 7 of the Charter of Fundamental Rights of the European Union and the rights of the child enshrined in article 24 and the Court of Appeal did not think that these cases were capable of any other explanation.
English authority on the point was no different and in Harrison  EWCA Civ 1736, a deportation case involving the application of Zambrano, Elias, Ward and Pitchford LJJ agreed with the government that there is no basis for asserting that it is arguable that the Zambrano principle extends to cover anything less than a case where the EU citizen is forced to leave the territory of the EU. Elias LJ said that Zambrano had “removed the requirement for even an exiguous cross-border link” before the principle applied. After analysing Dereci he found that the CJEU did not accept that an impediment of the right short of denial might be covered by the scope of the principle and instead found that jeopardy caused to family life or any adverse economic impact on the family do not suffice. The CJEU also said that national courts must determine whether, as a matter of fact, an EU citizen would be compelled to join an ascendant family member denied the right to remain in EU territory.
Elias LJ judged in Harrison that if the EU citizen, whether child or wife, would not in practice be compelled to leave the country if the non-EU family member were refused the right of residence, nothing in the authorities suggested that EU law is engaged. As recognised in Dereci,article 8 of the ECHR, which forms an entirely distinct area of protection, may then enter the equation to protect family life and Elias LJ observed that the CJEU’s approach fully accounted for the considerable financial, emotional or psychological impact on the family life of those affected. He held that quality of life might be significantly diminished, while the substance of the right of residence was preserved and he rejected the EU grounds of appeal. In Sanneh  EWCA Civ 49, Elias LJ followed this approach and held that the Zambrano principle did not “guarantee any particular quality of life”. Considering matters on appeal in R (HC)  UKSC 73 (discussed here), the Supreme Court explicitly approved of Elias LJ’s judgment in Harrison.
Irwin LJ observed that in Chavez-Vilchez the CJEU reconfirmed that the question was whether the EU citizen children would, in practice, be compelled to leave the EU if their non-EU mothers were obliged to leave EU territory – a question of fact in each case turning on who has custody of the child and whether that child is legally, financially or emotionally dependent on the non-EU parent. The national court was seeking guidance on the application of Zambrano rather than seeking to develop new principle. Hence Irwin LJ found that the “underlying principle in Zambrano is undisturbed by Chavez-Vilchez” and in the latter case the referring court was looking for guidance in circumstances where a child was dependent on one non-EU parent with no right of residence; circumstances in which the state must ensure a careful process of enquiry. None of the children in Chavez-Vilchez lived in family units with parents living together and in each instance the context was pegged to the factual basis that if the non-EU citizen mother leaves and the EU citizen father remains, will the EU citizen child be compelled, in practice, to leave? The CJEU said that in “very specific situations” a right of residence must nevertheless be granted to a non-EU family member of an EU citizen even though Directive 2004/38/EC, or the Citizens’ Directive, does not apply. Thus, the test of compulsion remained unaltered and Irwin LJ held:
74. It follows in my view that Chavez-Vilchez does not represent any kind of sea-change to the fundamental approach to be taken. It does not mean that English reported cases implementing Zambrano but pre-dating Chavez-Vilchez (such as Harrison, and Sanneh) hold diminished authority.
The court remarked that in Mr Shah’s case (and in the case of Mr Bourouisa, who was involved in earlier proceedings) the strength of family life was supported by “impressive evidence”. Irwin LJ appreciated that sensible people would wish to maintain the unity of their family but he nevertheless held that:
75. … However, recognition of that does not alter the fact that however hard such a choice may be, it is a choice, not a necessity, not compulsion. In my judgment the evidence in each of these two cases is clear that were the British parent to remain, they would be able to care for the children concerned perfectly well. The child citizen would be under no compulsion to leave the EU.
76. Quite a number of years ago, Parliament chose to abrogate the historic approach that marriage to a British citizen would bring, in effect automatically, residence in Britain for the spouse. No such automatic consequence now follows, see section 6(2) of the British Nationality Act 1981 and section 2 of the Nationality, Immigration and Asylum Act 2002. Those who marry a British citizen and have children, without having (or acquiring) leave to remain, do so at the risk that they may be compelled to leave the country, facing the real quandary that arises for these families. The Zambrano principle cannot be regarded as a back-door route to residence by such non-EU citizen parents.
While praise was due to Mr Patel for his parents’ “admirable care” it was clear that “compulsion” was the key question, albeit the “choice” was a difficult one because of the upheaval caused by relocation to India. If his parents followed him to India – which was inevitable – that was a part of “their cultural and individual commitment to each other” which was “choice not compulsion”. Overall, on the evidence, Mr Patel’s situation was “was too equivocal to amount to compulsion, however one looked at the matter” and respect for the right to family life was not construable as a “trump card” ensuring unrestricted protection.
In the Supreme Court, the government submitted that the Zambrano principle “exists at the very edge of EU law” whereas the appellants argue that it is not necessarily restricted only to “exceptional cases” because of the centrality of EU citizenship which “is destined to be the fundamental status of nationals of the member states” under the CJEU’s case law (a development which, for example, Sarmiento and Sharpston describe as one of the EU’s “most symbolic endeavours” constituting “a tectonic shift in the civil landscape”).
The appellants argue that in Zambrano the court made a value judgment not just a factual judgment. The very young children would leave the EU and the Colombian parents would choose on their Belgium children’s behalf to take them outside the EU. Thus the question to ask is whether the non-EU citizen’s departure would leave the EU citizen with any real choice in the matter? Such a situation opens up a broader inquiry and this is said to be “lurking under the surface”. In Chavez-Vilchez the question was whether the fact that the child is not entirely legally, financially or emotionally dependent, on the third-country national parent was relevant to the issue of article 20 TFEU precluding a member state from refusing a right of residence in its territory to that parent.
During the course of proceedings, Lord Sales remarked that in line with Dereci the desirability of keeping the family together is not good enough for EU law as it falls short of the type of compulsion underpinning the outcome in Zambrano. Despite that point, it is the case that the Dutch government accepted that Chavez-Vilchez changed the state of play to the extent that the burden of proof shifted on to the authorities to investigate whether the EU citizen parent’s divorce from the third country national has any negative effects on the child; the net result being that the latter had a greater chance of being granted a right of residence.
Equally, the point made by Lord Sales is highly questionable in light of his own judgment in Amirteymour EWCA Civ 353 where he held that it was not possible for a person to simultaneously argue article 8 rights together with EU law rights as the tribunal does not have any jurisdiction to hear the former in the absence of removal directions or a section 120 notice if a Zambrano residence right has been sought pursuant to the regulations. Accordingly, in EEA appeals, the sole ground of appeal is that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to and residence in the UK.
Significantly, the case of KA (C-82/16, EU:C:2018:308) further demonstrates that the Zambrano principle also applies to dependent adults, and not just to children, in exceptional cases where in light of a fact specific analysis “there could be no form of separation of the individual concerned from the member of his family on whom he is dependent.” The appellants recognise the limits set out by the CJEU’s reasoning but nevertheless submit that the approach does not establish a test of exceptionality and the court was merely stating that adults are not dependent on each other in quite the same way that children are dependent on adults.
In Harrison it was the view of Elias LJ that the Zambrano doctrine would apply and still protect the EU citizen’s rights where the quality or standard of life will be seriously impaired by excluding the non-EU national with the result that the EU citizen will be effectively compelled to give up residence and leave with the non-EU national. In MS (Malaysia) EWCA Civ 580, the approach taken in Harrison was applied to an adult non-EU carer whose departure from the UK would mean that her sick and elderly British mother would need to leave with her since the care provided by the daughter was irreplaceable. Overall, he FTT had allowed the appeal and the UT had dismissed the government’s appeal and it was argued that the UT had wrongly addressed the question whether the mother would “feel compelled to leave”. Both tiers of the tribunal were fully aware that the key question was whether the facts which they were evaluating crossed the threshold identified in Harrison and Patel and the CJEU cases between “choice” and “compulsion”.
In MS (Malaysia) the complaint was rejected that the UT substituted a subjective analysis for the test required by the regulations, which required actual compulsion, assessed objectively. Delivering the court’s unanimous judgment, Floyd LJ found “superficial attraction” to the government’s stance but rejected it as invalid because the UT was “conducting a perfectly proper, global, objective assessment, taking account of the evidence of MS and DK and all the other surrounding circumstances.” In the present context, Mr Patel provides his parents irreplaceable care but unlike the mother DK in MS (Malaysia) his father, who needs dialysis, has not made a direct statement that he will leave the UK if his son does (by contrast DK had said in her oral evidence that she could not be without her daughter, i.e. she would leave if her daughter left).
The appellants are of the view that Irwin LJ misstated the test by applying a rigid test of the British citizen being “unable to care” (at paragraph 77) for the child and therefore being compelled to leave along with the non-EU citizen. The CJEU had espoused a different test in Chavez-Vilchez (at paragraph 71) whereby the EU citizen’s ability and willingness to assume sole responsibility for the primary day-to-day care of the child is a relevant factor in the assessment but is a not a sufficient ground for concluding that the non-EU parent and the child do not have a such a relationship of dependency that the child would be compelled to leave the EU if a right of residence were refused to the non-EU parent. On behalf of the intervening AIRE Centre, Mr Drabble QC submitted further that the Court of Appeal’s distinction between choice and compulsion was too narrow a test to enunciate, especially in light of the approach in Chavez-Vilchez which provides the building blocks that the domestic court must answer in reaching its decision.
Mr Drabble QC also submitted that Harrison lies at “the outer extreme of EU law” and it did not concern whether the partner or children would also leave the EU upon the father’s deportation to Jamaica, it only concerned whether the children’s right of residence would be rendered less enjoyable upon the father’s deportation. Indeed, his argument is that if the child’s departure is a natural consequence of refusing the parent a residence right, then the choice or compulsion debate becomes redundant and the right approach is to consider the child’s best interests in line with paragraph 71 of Chavez-Vilchez whichrequires the examination of:
all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium.
In conducting the assessment the domestic court must evaluate who the primary carer is and whether there is a relationship of dependency. The ability of the EU parent to care for the child does not automatically negate the dependency on the non-EU parent and it is for member states to assess cases in line with the principles found in paragraph 71 of Chavez-Vilchez extracted above. Nevertheless, the government takes the rigid position that the judgments in Chavez-Vilchez and KA both reconfirm and fortify the exceptional nature of the Zambrano doctrine which demands that nothing less than a test of compulsion will suffice and only applies where the EU citizen will be forced to leave EU territory.
In a Pakistani businessman’s appeal against the dismissal of his application for judicial review against the refusal of his application for further leave to remain as a Tier 1 (Entrepreneur) of the points based system (PBS), the Court of Appeal has held that the phrase “director’s loan” in paragraph 46-SD(a)(iii) of Appendix A of the Immigration Rules does not have a specialist meaning. The expression simply means a loan made by a director to their company and it covers any transaction whereby a director paid money to or for the benefit of the company on the basis that it would one day be repaid. The outcome yet again shows that the PBS requires strict compliance with the rules. Mr Sajjad entered the UK in 2011 with limited leave to enter as a Tier 1 (Entrepreneur). On 1 April 2015, he sought to extend his leave by claiming points on the basis of his investment in a UK company – i.e. Blanco Coffee Limited, latterly trading as Sajjad’s Grill and Restaurant – of which he was the sole director at all material times. The accounts provided showed that he had invested £495,470 in the company but he made the mistake of entering the words “not applicable” in a section of the application form headed “legal agreement (for director’s loans only)”. A summary of the company’s creditors showed a balance of £560,787 outstanding on the Director’s Current Account as at 15 March 2015.
The application was refused due to non-compliance with paragraph 46-SD(a)(iii) because no director’s loan agreement had been provided evidencing Mr Sajjad’s investment and showing the terms and period of the loan, the interest payable, and confirming that the loan was unsecured and subordinated in favour of third-party creditors. Compliance with the rule was mandatory and the UT refused to grant permission to seek judicial review. Elisabeth Laing J held that the decision-maker was entitled to refuse the application because the requirement to submit a director’s loan agreement had not been complied with. But her judgment was appealed on two grounds. First, that Mr Sajjad’s investment in his company did not take the form of a “director’s loan” within the meaning of paragraph 46-SD(a)(iii) and he was therefore not required to file a legal agreement detailing the terms of the loan. Second, Mr Sajjad submitted that in the alternative that the phrase “a director’s loan” is unclear, and that it was unfair and unreasonable for the decision-maker to refuse his application in reliance on that ambiguity without first contacting him or giving him a chance to comply.
The Court of Appeal
Overall, Sir Ernest Ryder (Senior President of Tribunals), Holroyde and Males LJJ were sympathetic with Mr Sajjad and his family. However, the court did not accept the excuse that a mere piece of paper was missing because in truth a director’s loan agreement was a necessary piece of evidence for him to have qualified for the points needed to obtain further leave to remain. The court first addressed the requirement to provide specified documents. It then proceeded to elaborating on the meaning of the phrase “director’s loan”. The Lordships’ point of departure was that the PBS aims to enable the Home Office to process large numbers of applications fairly and expeditiously by applying clear and objective criteria.
Burnett LJ’s approach in Kaur  EWCA Civ 13 is very clear that applicants must take great care to comply with the requirements of the PBS. Predictability, administrative simplicity and certainty come at the expense of discretion and consequently “failure to comply with all its detailed requirements will usually lead to a failure to earn the points in question and thus refusal.” Moreover, as held in Raju  EWCA Civ 754 “there is no room in the points based scheme for a near miss”.
(i) Specified documents
Applicants under the PBS must supply certain specified documents and it is clear in “stark terms” under paragraph 39B that if the necessary documents are not provided, an applicant will not meet the requirement for which those documents are required as evidence.
However, despite any failures to provide the requisite documents, paragraph 245AA, which had been examined by the court in Mudiyanselage  EWCA Civ 65, provided a limited degree of “evidential flexibility”. But this is only in the particular circumstances set out within that paragraph and there is no general policy allowing for the correction of minor errors. Underhill LJ explained that “occasional harsh outcomes are a price that has to be paid for the perceived advantages the PBS process” and expressing a similar view Sir Brian Leveson P let it be known that:
145. These are hard-edged decisions but the requirements of the PBS, Rules and Guidance are precise. Those who seek to make applications of this nature must take the utmost care to ensure that they comply with the requirements to the letter; they cannot expect discretionary indulgence beyond the very limited areas provided by evidential flexibility.
(ii) “Director’s loan”?
The government submitted that for points to be awarded for an investment in a UK business, the applicant must establish that the investment has taken one of only two permissible forms, namely an investment by way of a director’s loan, or investment by way of purchase of share capital. Any other alternatives would expose the system to abuse and it was stressed that in line with the approach in Mahad v Entry Clearance Officer  UKSC 16 the Immigration Rules must be construed “sensibly according to the natural and ordinary meaning of the words used.” Therefore, Holroyde LJ found that Mr Sajjad’s investment in the company was a “director’s loan” and he held that:
31. The Rules do not limit the ways in which a migrant may choose to invest in a UK business, but they do limit the circumstances in which an investment may qualify for an award of points in support of an application for leave to remain. Bearing in mind the nature and objective of the PBS, and adopting the approach directed by the Supreme Court in Mahad, it seems to me that the phrase “a director’s loan” was intended to bear the simple and clear meaning of a loan made by a director to the company of which he or she is a director. It would be inconsistent with the nature and objective of the PBS to interpret the phrase as carrying some specialist meaning which would or might in particular circumstances require a detailed analysis of finer points of contract law or company law.
The court was not in any doubt that Mr Sajjad was a director of the company in which he made his investment. His accountant gave a letter, reflecting the reality of the situation, confirming that all the sums paid by Mr Sajjad to or for the benefit of the company, as reflected in the director’s current account, were an investment in the business which in legal terms “is considered as a loan to the company without interest for indefinite period”. The court’s interpretation of the phrase in this manner was not unreasonable or unfair and it explained that:
32. In order to operate the PBS fairly and efficiently, the respondent must be able to ascertain quickly, from the information provided by an applicant, the precise nature and legal status of the investment made in order to confirm that it attracts an award of points under the terms of the scheme. That can effectively be done if the phrase is interpreted as covering any transaction in which a director pays money to or for the benefit of his company on the basis that it will one day be repaid. It cannot effectively be done if the respondent is to be required, on an application-by-application basis, to make an analysis of whether a particular transaction by which money passed from a director to a company amounted to a director’s loan.
Overall, the clear conclusion was that because his investment was a director’s loan, Mr Sajjad should have provided a written legal agreement showing the particulars set out in paragraph 46-SD(a)(iii). His failure to do so was his own problem and the Upper Tribunal had rightly found that the decision-maker had not acted unlawfully in refusing his application for further leave to remain as a Tier 1 (Entrepreneur). The appeal against the Upper Tribunal’s judgment was unassailable and there were no arguable grounds to disturb its conclusions.
(iii) Points by Males LJ
Males LJ added that fact that Mr Sajjad does not qualify for leave to remain under Tier 1 (Entrepreneur) of the PBS was “not a mere technicality” because in effect it was mandatory for him to score 75 points failing which his application fell to be refused. It was up to him to comply with paragraph 46-SD(a)(iii) and he should have included a written loan agreement showing the required particulars with his application for leave to remain. Indeed, as Males LJ explained:
40. In the case of a company, the obvious ways in which to invest are either debt or equity … An equity investment provides the investor with an ownership interest in the company, but in the event of the company’s insolvency the interests of shareholders rank behind those of the company’s creditors.
A legal agreement between Mr Sajjad and the company needed to show (i) the terms of the loan, (ii) the interest payable, (iii) the period of the loan, and (iv) that the loan is unsecured and subordinated in favour of third-party creditors. The words of paragraph 46 were entirely unambiguous and the agreement was mandatory as it must be provided in all cases and Males LJ ended his judgment by imparting advice to Tier 1 (Entrepreneur) applicants and pointed out that:
45. The fourth matter is important. The requirement that the loan be unsecured ensures that in the event of the company’s insolvency, secured creditors will have priority over the debt payable to the director. The requirement for subordination ensures that other unsecured creditors will have such priority. In the absence of such a provision, the loan to the director would rank equally with debts to other unsecured creditors and, if the amount of the loan represents a substantial proportion of the company’s debts, could mean that the director takes the greater part of whatever assets there are. Accordingly the requirement for subordination puts an applicant who chooses to invest in his company by making a loan in the same position, in the event of the company’s insolvency, as one who makes an equity investment.
These corporate and insolvency law principles were very important because it was never suggested that the terms on which Mr Sajjad loaned his money to the company included a provision for subordination. Despite expressing sympathy for Mr Sajjad, his Lordship judged that the position was not that he had simply failed to produce a piece of paper, rather the truth was that “he failed to produce the necessary evidence to qualify under the points based system on an important matter of substance.”
Notably, by virtue of Statement of Changes HC 1919, the Tier 1 (Entrepreneur) and Tier 1 (Graduate Entrepreneur) categories were replaced by the new Innovator and Start-up categories. The outcome in this case clearly shows that the evidential burden lies on PBS applicants to provide all the necessary documentation to succeed in obtaining their visas. Just ticking the wrong box in a “hit and hope” exercise is a wasteful way to make such applications and this judgment is a clear reminder that the Home Office does not have the task of seeking out bits of information from applicants because they “must take the utmost care to ensure that they comply with the requirements to the letter.”
Therefore, the non-disclosure and non-provision of the loan agreement was a fatal flaw in Mr Sajjad’s application for leave to remain despite his otherwise positive credentials. His predicament serves as a clear warning even to the fittest entrepreneur that keeping one’s business affairs in order is highly advisable to ensure success and that any expectation of leniency in the PBS is misconceived.
In a complex judgment, the Court of Appeal has held that the ongoing use of paragraph 322(5) of the Immigration Rules in the cases of highly skilled Tier 1 (General) migrants (T1GMs) is “legally flawed” because decision-makers are proceeding directly from finding that the earnings discrepancies in T1GM applications are the result of dishonesty, without giving applicants an opportunity to proffer an innocent explanation. Albert, Balajigari, Kawos and Majumder all appealed against the dismissal of the refusal of permission to apply for judicial review or of their substantive claim. The Court of Appeal noted that there are over 70 other appeals or applications for permission to appeal pending before the court and an unknown number of challenges pending in both tiers of the tribunal. Underhill, Hickinbottom and Singh LJJ held that where the decision-maker is minded to refuse indefinite leave to remain (ILR) under paragraph 322(5) on the basis of the applicant’s dishonesty, or other reprehensible conduct, it is necessary as a matter of procedural fairness to indicate clearly to the applicant that the decision-maker has that suspicion, so as to give the applicant an opportunity to respond. The Home Office is required to take that response into account before concluding that there has been such conduct. The court said that refusal was “functionally equivalent” to a removal decision and that the lack of a “minded to refuse” letter rendered the refusal decisions procedurally unfair.
In the present “earnings discrepancy” cases T1GM applicants were refused ILR because of discrepancies between earnings figures declared in applications for leave to remain and the figures declared in their tax returns for equivalent periods or, in Majumder’s case, a failure to file any return. Overall, the result of these proceedings was that each of these four appeals was allowed. Moreover, in all the appeals except in Majumder’s matter, where the decision to refuse ILR was quashed, the case was remitted to the UT. As a preliminary point, Underhill, Hickinbottom and Singh LJJ expressed their displeasure with all the representatives involved, those of the appellants and the Home Office, for breaching the case management directions and the deadlines for filing skeleton arguments and violating the rules on their length. Their Lordships lamented “these failures made the court’s task in pre-reading a good deal more difficult.” However, in light of the complexity and general importance of these proceedings, such failures were only minor hiccups. In its heyday the highly skilled route attracted up to 10,000 migrants a year to the UK. But was it closed in order to bring migration down to the “tens of thousands”.
Paragraph 322 (5) applies where it is “undesirable” to permit an applicant to remain in the UK “in the light of his conduct … character or associations or the fact that he represents a threat to national security”. The rule is set out under part 9 (grounds for refusal) of the Immigration Rules. Under the (abolished) T1GM scheme, which used to be a part of the points-based system, applicants were awarded points for attributes in which earnings played a major part. Hence it was possible for people to claim beefed up sums in earnings to earn points in immigration applications. Whether the same figures were recorded with HMRC was another matter. The Home Office review of these cases showed that since 2015 a total of 1,697 ILR applications from T1GMs migrants had been refused using paragraph 322(5). This judgment will soothe their suffering.
Firstly, the appellants challenged the refusals on domestic public law grounds. Secondly, they contended that the refusals interfered with their rights under article 8 of the ECHR as incorporated by the Human Rights Act 1998. Thirdly, they also complained that judicial review is an unsuitable procedure through which to challenge refusals based on paragraph 322(5), the better route being a human rights appeal to the tribunal. The first ground fell to be examined by addressing (i) the correct interpretation of paragraph 322(5) and the approach which needs to be taken its application in an earnings discrepancy case, (ii) the requirements of procedural fairness, and (iii) whether the executive is subject to any Tameside duty.
The Court of Appeal
Underhill, Hickinbottom and Singh LJJ began their judgment by noting that the use of paragraph 322(5) has “attracted considerable controversy”. The court noted that the Home Office refusal in each case rested on the basis that a proper decision had been reached that the discrepancies arose because of the appellants dishonestly mis-stating their earnings which is conduct captured by paragraph 322(5). The court also highlighted that all the appellants said that the discrepancies were caused by innocent errors and they claimed that the decisions to the contrary were unlawful.
Domestic public law grounds
It was the view of the court that dishonest submission of false earnings figures to HMRC or to the Home Office constitutes conduct which can, and generally will, justify refusal of leave to remain under paragraph 322(5).
Contrary to what is sometimes claimed, though not argued by the present appellants, paragraph 322(5) is not concerned only with cases where an applicant poses a threat to national security. Drawing on a wide spectrum of authoritative cases, the court addressed the challenges to the refusals on public law grounds as summarised below. The court did not itself make a finding about whether the appellants were dishonest but the judgment is equally clear that dishonesty cannot simply be assumed and must be established by the employment of a robust procedure.
(i) Correct interpretation and application
The interpretation and application of paragraph 322(5) are closely connected and were best addressed together. The court explained that first of all paragraph 322(5) involves deciding whether it is “undesirable” to grant leave. If yes, then the second stage is to decide as a matter of discretion whether to refuse leave. The court agreed with the idea that “undesirability” requires reliable evidence of sufficiently reprehensible conduct, and an assessment, taking proper account of all relevant circumstances, of whether the applicant’s presence is undesirable.
The court approved of the treatment of dishonesty in Shahbaz Khan (Dishonesty, Tax return, Paragraph 322(5))  UKUT 384 (IAC), discussed here, and held that an earnings discrepancy only constitutes sufficiently reprehensible conduct if it is a result of the applicant’s dishonesty. Therefore, carelessness or ignorance or poor advice are not conduct making it undesirable for the applicant to remain in the UK and, however regrettable, such errors are “genuine” or “innocent” in the sense that they are honest, and do not meet the necessary threshold. It was also the case that this approach converged with the treatment of dishonesty in Adedoyin  EWCA Civ 773, discussed here. As for dishonesty in the context of an earnings discrepancy case, the court said that Ivey v Genting Casino  UKSC 67 applied to the present context. However, it nevertheless opined that in practice a decision-maker or tribunal will not specifically need to refer to the principles articulated by Lord Hughes at paragraph 74.
As regards an assessment of whether the applicant’s presence is undesirable in light of all relevant circumstances, the court accepted the submission based on the earlier case of Ngouh  EWHC 2218 (Admin) that a balancing exercise informed by weighing all relevant factors would be good practice for the Home Office to incorporate in its formal decision-making process and it disagreed with any contrary suggestions by Lord Tyre in Oji  CSOH 127 and Dadzie  CSOH 128, discussed here. But the court also stated that it would not always be an error of law for a decision-maker to fail to conduct the balancing exercise explicitly.
Moreover, Underhill, Hickinbottom and Singh LJJ judged that then at the second stage the decision-maker has to consider whether there are factors outweighing the presumption that leave should be refused owing to undesirability, such as the welfare of children who might be affected and any human rights issues which are in play.
(ii) Procedural fairness
The court made reference to its recent decision in Citizens UK  EWCA Civ 1812, discussed here, on procedural fairness where it examined authorities such as Osborn  UKSC 61 and Fayed  EWCA Civ 946. The latter authority concerned refused applications for naturalisation by two brothers settled in the UK on the basis of concerns about their good character which were not raised with them or indeed even disclosed at the time of the decisions. The decisions were quashed and in the present context the Court of Appeal considered Fayed to be instructive for several reasons and after examining it in detail the court applied the relevant principles to hold that:
55. … the conclusion that where the Secretary of State is minded to refuse ILR on the basis of paragraph 322 (5) on the basis of the applicant’s dishonesty, or other reprehensible conduct, he is required as a matter of procedural fairness to indicate clearly to the applicant that he has that suspicion; to give the applicant an opportunity to respond, both as regards the conduct itself and as regards any other reasons relied on as regards “undesirability” and the exercise of the second-stage assessment; and then to take that response into account before drawing the conclusion that there has been such conduct.
56. We do not consider that an interview is necessary in all cases. The Secretary of State’s own rules give a discretion to him to hold such an interview. However, the duty to act fairly does not, in our view, require that discretion to be exercised in all cases. A written procedure may well suffice in most cases.
Notably, paragraph AR2.4 of Appendix AR prevents the administrative reviewer from considering any evidence that was not before the original decision-maker except in certain specified cases for the correction of case-working errors. The result is that the applicant would normally only be able to assert that he or she had not been dishonest but would not be able to adduce evidence in support of that assertion. The Court of Appeal found that “the limited type of legal review is clearly inadequate here” and it reasoned that it is precisely because the applicant had no notice of the decision-maker’s concerns that he or she had no opportunity to put evidence before the original decision-maker.
(iii) Tameside duty
The court held that the Home Office was not under a duty under Tameside  UKHL 6 to make enquiries of HMRC regarding how it had dealt with the errors in applicants’ tax returns, in order to determine under paragraph 322(5) whether they had been dishonest in filing the returns. The Home Secretary had power to make such enquiries but no duty existed for him to exercise that power. Overall, the court’s conclusion was supported by the approach taken by Haddon-Cave J in Plantagenet Alliance Ltd  EWHC 1662 applying which it was “impossible” to accept the appellants’ arguments on the point. The court also noted that there may be many reasons why HMRC does or does not investigate a particular tax return. Indeed, it was always open for an applicant to draw the decision-maker’s attention to HMRC having declined to impose a penalty (which would of course signify carelessness rather than dishonesty).
Engagement of article 8
Complex arguments arose in relation to article 8 and after considering several authorities in detail the Court of Appeal held that the refusal of ILR pursuant to paragraph 322(5) engaged the article 8 rights of the applicants who essentially submitted that a decision to refuse ILR to a T1GM on paragraph 322 (5) grounds engaged article 8. The was significant because it might also mean that it is open to affected T1GMs to bring a challenge by way of appeal rather than by judicial review. Equally, refusal also exposed the applicants to the full array of the nasty “hostile environment” provisions of the Immigration Act 2014 effectively barring them from driving, renting property, having a bank account, accessing healthcare and so forth. To simplify the issues, the court accepted that main submission on article 8 focusing on liability for removal from the UK. Overall, refusal was “functionally equivalent” to a removal decision because the applicant’s existing leave would expire by the time of the refusal decision and they would be liable to removal at any time after refusal. The court held that:
92. The principal substantive consequence of our finding that the refusal of T1GM ILR on paragraph 322 grounds will (typically) engage article 8 is that in any legal challenge the tribunal will be obliged to reach its own conclusion on whether the interference is justified, rather than conducting a rationality review. In an earnings discrepancy case that means, principally, that it will have to decide for itself whether the discrepancy was the result of dishonest conduct by the applicant in the supplying of figures to either HMRC or the Home Office. If it was, in the generality of cases such a finding will be sufficient, for the purposes of the final Razgar question, to justify the applicant being refused leave to remain and in consequence, which is the relevant interference, becoming liable to removal.
The situation was analogous to the one witnessed in Ahsan  EWCA Civ 2009, where the claimants’ article 8 rights were in practice dependent on whether they had cheated in their TOEIC tests and the Court of Appeal held that they were entitled to have that question determined by the tribunal as a matter of fact.
In light of the clear analogy with Ahsan, in principle the appropriate challenge to a refusal is an appeal to the FTT rather than a claim for judicial review in the UT. Notably, the refusal of ILR is not an appealable decision but a right of appeal is available under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 if a human rights claim has been refused. The procedural requirements of making a human rights claim were reviewed in Shrestha  EWCA Civ 2810 and an applicant must use a form and pay a fee, failing which no human rights claim has been made and no right of appeal arises.
The court found that it would be uncommon for an applicant to include a human rights claim in their application. An applicant who had not done so would have to make a fresh application alleging that they had been rendered liable to removal, in breach of their article 8 rights on the basis of an unfair finding of dishonesty. On the other hand, an applicant had the option of securing an appeal by waiting until removal action was taken. These were unenviable choices and therefore the court held that:
102. Neither of those routes to an appeal is very satisfactory. The first requires the applicant to go through the formality of making, and paying for, a further application in order to decide substantially the same question, with no certainty as to how soon the decision will be made. The second requires him or her to wait for an indefinite and possibly lengthy period before being able to obtain an appealable decision.
Furthermore, upon an article 8 challenge through judicial review, the UT would decide for itself whether any dishonesty had been properly proved and removal was proportionate. No such case had been advanced by these appellants in the UT, which had accordingly been limited to deciding whether the decision-maker’s finding that they had acted dishonestly was “rational”. The court explained that it is unlikely that a tribunal will be prepared to accept a mere assertion from an applicant or their accountant that the tax discrepancy in question was simply “a mistake” without a full and particularised explanation of what the mistake was and how it arose.
Disposal of appeals and conclusions
Notably, after Fayed the Home Office introduced a “minded to refuse” procedure in naturalisation cases, by virtue of which applicants were given the opportunity to address any concerns that he might have before a decision was taken. Overall, in the cases of Balajigari, Kawos and Majumder the lack of a “minded to refuse” letter rendered the refusal decisions procedurally unfair. Moreover, in Albert’s case, the Home Office had given reasons but the decision-maker had not made clear that dishonesty was being found. The court concluded that:
221. … the approach taken by the Secretary of State in deciding to refuse the applications for leave to remain in each of these cases on paragraph 322(5) grounds – which we take to have been his general approach in all earnings discrepancy cases – was legally flawed (except, for particular reasons, in Albert). This is principally because he proceeded directly from finding that the discrepancies occurred to a decision that they were the result of dishonesty, without giving applicants an opportunity to proffer an innocent explanation. But nor does he address the further questions of whether the dishonesty in question renders the presence of the applicant in the UK undesirable or whether there are other factors which outweigh the presumption in favour of removal, or give applicants the opportunity to raise any matters relevant to those questions: such cases will no doubt be exceptional, but the step cannot simply be ignored.
The court reiterated that the availability of administrative review is insufficient because the applicant is not permitted to rely on any further evidence that was not produced before the original decision. It also said that the Home Office can avoid future unlawfulness by adopting a “minded to” procedure informing applicants of the decision-maker’s concerns and giving them the chance to show cause why ILR should not be refused by offering an innocent explanation of the discrepancies.
The outcome of these proceedings is a big win for highly skilled migrants in the UK who were desperately in need of relief. On the other hand, the result does not automatically annul every paragraph 322(5) refusal made by the Home Office and therefore the harsh predicament in which many highly skilled migrants find themselves is likely to continue until their appeals and judicial review challenges are finally settled. History demonstrates that such matters tend to linger on for years and no doubt history will repeat itself despite the fact that the T1GM route was made redundant in April 2015 and ILR applications were closed on 6 April 2018. The Court of Appeal’s judgment states that there are an unknown number of appeals pending in both tiers of the tribunal and dozens of judicial reviews turning on the hostile use of paragraph 322(5).
The court was careful to explain that the legal defects identified in the judgment do not automatically lead to a paragraph 322(5) refusal being quashed if the UT is satisfied that they are immaterial, i.e. that the result would have been the same even if the applicant had been given an opportunity to explain the discrepancies. Hence, remitting the cases of..
As discussed earlier in the analysis of JG (section 117B(6): “reasonable to leave” UK) Turkey  UKUT 72 (IAC), the Court of Appeal has held that for the purposes of section 117B(6) of the Nationality, Immigration and Asylum Act 2002, the public interest does not require a person’s removal where that person had a genuine and subsisting parental relationship with a child and it would not be reasonable to expect the child to leave the UK. Moreover, Underhill, King and Singh LJJ also took the view that whether there is such a parental relationship depends on the individual circumstances of the case, and it is not a requirement of section 117B(6) for there to be a realistic prospect of the child leaving the UK as a consequence of the person’s removal. Among other things, the judgment is further confirmation that the parent’s immigration history plays no part in the statutory mechanism set out in section 117B(6) because in the present cases Singh LJ concurred with the presidential panel in JG that the provision requires a court or tribunal to hypothesise that the child in question would leave the UK, even if this is not likely to be the case, and ask whether it would be reasonable to expect the child to do so. The present cases concerned the Home Office’s appeals against the UT’s decisions that the public interest did not require AB and AO’s removal pursuant section 117B(6).
AB, a Jamaican national who arrived to the UK in 1999 (or 2002) had a son who was born in the UK and whom he saw around three times a week. He was at first unsuccessful in challenging the decision to refuse him leave to remain in the UK before the FTT. But DUTJ Grimes held that AB’s removal would disproportionately interfere with his rights under article 8 of the ECHR and decided that section 117B(6) applied and so the public interest did not require his removal because, as required by section 117B(6)(a), he had a genuine and subsisting parental relationship with his British son “R” and, as required by section 117B(6)(b), it would not be reasonable to expect the child to leave the UK. AO, a Nigerian national who had come to the UK aged 12, had a British son “I”. However, due to a family court order, AO was only allowed to communicate with I in writing and AO’s leave was curtailed in 2014. The FTT decided that AO’s proposed removal would have interfered with his family life with I sufficiently to engage article 8. FTTJ Pacey held that contact, even in writing, would be less easy if AO was in Nigeria and I would discover that he had moved far away. Moreover, that interference was disproportionate. Subsequently, the UT upheld the decision on the basis that AO satisfied the conditions in section 117B(6).
The Home Office submitted that section 117B(6) did not apply in either case since the condition in section 117B(6)(b) did not arise on the facts and neither AB nor AO’s child was expected to leave the UK. Consequently, there was no need for the tribunals to ask whether it was reasonable to expect them to do so. Specifically in relation to AO, it was also submitted that DUTJ Latter (i) had failed to correct the FTT’s error of law that article 8 was engaged by his proposed removal to Nigeria where he had only limited contact with I, (ii) completely failed to ask the second question posed by Razgar  UKHL 27, and (iii) had furthermore erred by concluding that AO had a “genuine and subsisting parental relationship” with his son I within the meaning of section 117B(6)(a).
In KO (Nigeria) & Ors  UKSC 53, discussed here, the Supreme Court held that, as amended, the provisions of Part 5A of the Nationality, Immigration and Asylum Act 2002 deliberately establish an uncomplicated set of rules. Giving a child-centred judgment Lord Carnwath held that “section 117B(6) is focussed on the position of the child”. In JG the Turkish mother was “both dishonest and unscrupulous, each to a high degree” and she presented a paradigm case of someone who was unworthy of being allowed to remain in the UK and blatantly violated its immigration laws.
Notwithstanding her absolutely atrocious immigration history, the UT allowed her appeal because of the effect of section 117B(6) which did not permit Lane J and UTJ Gill to hold otherwise despite the fact that Lord Carnwath’s “real world” analysis at paragraphs 18 and 19 had not overtly ruled out the possibility of immigration history as counting against the parent. Lane J and UTJ Gill examined the situation through the prism of ZH (Tanzania)  UKSC 4 – which Lord Carnwath did not expressly mention KO (Nigeria) – and they held that despite JG’s high degree of dishonesty and unscrupulousness, her immigration history was totally irrelevant for the purposes of section 117B(6)(b) and therefore they allowed her appeal.
Under section 117B(6), in the case of a person who is not liable to deportation, the public interest does not require the person’s removal where (a) the person has a genuine and subsisting parental relationship with a qualifying child, and (b) it would not be reasonable to expect the child to leave the UK. Section 117B sets out public interest considerations applicable in all cases involving article 8 where a court or tribunal has to determine whether a decision made under the Immigration Acts constitutes a disproportionate interference with a person’s right to respect for private and family life under article 8.
Furthermore, section 117A(2) requires that, in considering this “public interest question”, the court or tribunal must, in particular, have regard in all cases to the considerations listed in section 117B. Moreover, section 117D(1) defines a “qualifying child” as someone under the age of 18 who is either a British citizen or has lived in the UK for a continuous period of seven years or more. The children involved in the cases of AB, AO and JG were British citizens but the outcomes in these cases will also apply to qualifying children who have lived in the UK for a continuous period of seven years or more.
The Court of Appeal
Singh LJ, with whom both Underhill and King LJJ concurred, dismissed the government’s appeal on the point that section 117B(6) did not apply in either case because the condition in section 117B(6)(b) did not arise on the facts. On the other hand, the court allowed the government’s appeal on the three grounds tailored for AO. The court’s specific rationale is examined below.
Analysis of section 117B(6)(b)
As a preliminary point, Singh LJ said that it is clear that as formulated the public interest question is tightly confined to the question which arises under article 8(2) only and it corresponds to questions 4 and 5 as set out in paragraph 17 of Razgar by Lord Bingham.
Singh LJ embarked upon his examination of the situation confronting the court by noting that KO (Nigeria)  UKSC 53 produced the effect of freeing the Court of Appeal from the deeply flawed approach of Laws LJ in MM (Uganda)  EWCA Civ 617. Therefore he took the opportunity to endorse Elias LJ’s reasoning at paragraph 36 of MA (Pakistan) & Ors  EWCA Civ 705 where he held that the focus of section 117B(6)(b) is solely on the child and no justification exists for reading the concept of reasonableness to include a consideration of the conduct and immigration history of the parents as part of an overall analysis of the public interest.
The government argued that that the condition for section 117B(6)(b) simply did not arise on the facts of these two cases and that there was no question of either of the children being expected to leave the UK. In those circumstances there was no need for the tribunals to ask the question whether it was reasonable to expect them to do so. Rejecting the approach, Singh LJ held that:
61. In my judgment, this submission must be rejected. It founders on the clear wording of the legislation … it requires the court to insert words into the Act which are simply not there … it requires the court to divide the concept of a “qualifying child” into two types. There is simply no warrant in the legislation itself for doing so.
The court agreed with the presidential panel’s decision in JG that as a matter of ordinary language, it is not possible to construe section 117B(6)(b) as applying only where a tribunal found that, on the particular facts, the child in question would be expected to leave the UK if the person concerned was removed. Thus, purely as a matter of statutory interpretation, the panel in JG was quite right to hold that it is not possible to use paragraphs 18 and 19 of KO (Nigeria) to argue otherwise.
Admittedly, this interpretation may result in an undeserving individual remaining in the UK. However, the result in JG was nonetheless correct because of the fact that Parliament had vouchsafed this outcome and “decided to be more generous than is strictly required by the Human Rights Act 1998.” Indeed, in reality, such generosity was a necessity under the aim of Part 5A of imposing greater consistency in decision-making by courts and tribunals and Elias LJ rightly recognised this state of affairs in paragraph 44 of MA (Pakistan). As the presidential panel had pointed out at paragraph 95 of JG, “absent section 117B(6), the appellant’s removal would be proportionate in terms of article 8 of the ECHR.” Singh LJ approved of this analysis and held:
72. I respectfully agree with the interpretation given by the UT to section 117B(6)(b) in JG.
On the other hand, the court did not agree with one aspect of the reasoning in JG, namely at paragraph 25, regarding the exact meaning of the concept “to expect” something, which the presidential panel had interpreted a thing that is “likely to happen”. Although the difference in opinion makes no material difference to the final interpretation, the Court of Appeal stressed that the concept of “to expect” something can be ambiguous. Indeed, it can be, as the panel had thought, simply a prediction of a future event. On the other hand, “it can have a more normative aspect [force]” as shown by the sense in which Admiral Nelson famously used it at Trafalgar by declaring that England expects every man to do his duty. Singh LJ added that in enacting section 117B(6), Parliament “meant what it said” and so courts and tribunals must give effect to the provision on its correct statutory interpretation. The parties in the appeal agreed that article 8 must always be respected.
The amendments to the 2002 Act by the 2014 Act did not evince an intention to breach the UK’s ECHR obligations. Indeed, on any view, the strong interpretive obligation in section 3 of the 1998 Act applies to all legislation and Part 5A of the 2002 Act is no different in that regard. Singh LJ also approved of UTJ Plimmer’s view in SR (subsisting parental relationship – s.117B(6)) Pakistan  UKUT 334 (IAC) that section 117B(6)(b) cannot be set aside and does not merely pose a hypothetical question.
Since it is a statutory question it cannot be “ignored or glossed over” and the provision “is engaged whether the child will or will not in fact or practice leave the UK. It addresses the normative and straightforward question – should the child be expected to leave the UK?” His Lordship therefore dismissed the government’s appeal in AB’s case and held that:
75. I respectfully agree. It is clear, in my view, that the question which the statute requires to be addressed is a single question: is it reasonable to expect the child to leave the UK? It does not consist of two questions, as suggested by the Secretary of State. If the answer to the single question is obvious, because it is common ground that the child will not be expected to leave the UK, that does not mean that the question does not have to be asked; it merely means that the answer to the question is: No.
Engagement of article 8
On the issue of whether article 8 was engaged in AO’s case, the Court of Appeal took the view that it had not been reasonably open to the FTT to conclude that there had been an interference with his family life sufficient to engage article 8 because FTTJ Pacey failed to explain the reason behind the conclusion that AO’s communication with I by post would of necessity be less easy if he were living in Nigeria.
Singh LJ was of the view that I becoming aware of AO’s departure from living close by to living in Nigeria was not such an interference with family life as to engage article 8. This was particularly so given that the reason for the limited indirect contact between father and child was to contribute to I’s identity rather than to maintain their relationship.
Second Razgar question
The complaint that the UT completely failed to ask the second question posed by Razgar  UKHL 27 in AO’s case was upheld. It was submitted that the UT simply went from answering the question whether there was family life within the meaning of article 8(1) to considering the “public interest question”, which only arises if one gets to the need for justification in article 8(2). The court did not disagree that, unlike the FTT, the UT fell into the fundamental error that it did not even ask itself the second Razgar question and thus it erred in law.
Genuine and subsisting parental relationship
On the meaning of the expression “genuine and subsisting parental relationship”, Singh LJ rejected the government’s argument that an element of direct parental care is necessary for a person to have a “genuine and subsisting parental relationship” with a child for the purposes of section 117B(6)(a).
In support of the rejected position, reliance was placed in VC (Sri Lanka)  EWCA Civ 1967 and alternatively in the point that the conclusion to which the UT came was one that was not reasonably open to it on the facts before it. The argument was flawed because it was based on the rules in paragraph 399(a) of the Immigration Rules which applied to the different context of the deportation of foreign criminals and contained very different language. Therefore, the court disapproved of UTJ Plimmer’s formula in SR (Pakistan) that the treatment of the words “genuine” and “subsisting” by the court in VC (Sri Lanka) “could simply be transplanted to the context of section 117B(6)(a)”. Overall, Singh LJ held that UTJ Plimmer fell into error at paragraphs 36-37 of her ruling where she decided that the interpretation given to paragraph 399 of the Immigration Rules in VC (Sri Lanka) also applied to interpreting section 117B(6)(a). Thus, rejecting the government’s argument, Singh LJ held that:
98. … In my view, the words used in the Act with which we are now concerned are words of the ordinary English language and no further gloss should be put upon them. Their application will depend on an assessment by the relevant court or tribunal of the facts of the particular case before it. The exercise is a highly fact-sensitive one.
Nevertheless, it was still clearly the case that DUTJ Latter’s conclusion had not been open to him on the facts. In family court proceedings, AO had been granted only very limited indirect contact with his son by post, and only for the purpose of contributing to I’s full understanding of his dual heritage identity and not to maintain the relationship with his father. Therefore, government’s appeal was allowed in relation to AO.
Ultimately, the outcome in these appeals clarifies yet again that the immigration history of the parent makes no difference whatsoever for the purposes of section 117B(6) and to set the record straight Singh LJ also officially freed the Court of Appeal from the regrettable and deeply flawed approach in MM (Uganda) which made no sense at all and which also represented a colossal act of self-indulgence by Laws LJ who was well known for his pro-government proclivities.
Equally, it is also deeply unsatisfactory that the Home Office is still repetitiously running the same flawed arguments about section 117B(6) nearly three years after the decision in MA (Pakistan) where Elias LJ rejected the idea that the immigration history of the parent impacts the outcome in those cases where there is a genuine and subsisting relationship with a qualifying child. Overall, among other things, the present judgment clarifies that an undeserving parent’s immigration history is irrelevant for the purposes of the seven year rule and hopefully it will lay to rest the longstanding controversy on the intentions of statute and the array of diverging pieces of jurisprudence that it has produced over the years. Observably, it has taken five years and endless litigation just to iron out the basic principles laid down in Part 5A of the 2002 Act.
If anything, the present cases of AB, AO and JG’s earlier case in the UT leave no doubt that if Parliament has decided to be more generous in section 117B(6) than is strictly required by the Human Rights Act 1998, then it is acceptable for undeserving parents to be granted leave to remain in the best interests of their innocent children who are also ensnared in the UK’s intricate immigration system. Nevertheless, it will ultimately be for the Supreme Court to decide whether the decisions in these cases are indeed correct and it is inevitable that these testing immigration matters will require further interpretation from the apex court’s justices yet again in the future.