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R (Sunassee) v. Upper Tribunal (Immigration and Asylum Chamber) & Secretary of State for the Home Department [2015] EWHC 1604 (Admin)

DATE: 12 Jun 2015

This was a judicial review challenge to the decision of the Upper Tribunal refusing claimant permission to appeal a decision of the First-Tier Tribunal rejecting his and his wife’s appeal against the refusal of leave to remain in the UK on Article 8 ECHR grounds not covered by the Immigration Rules. By order of Green J., the case proceeded as a ‘rolled-up’ hearing of the permission application and the substantive judicial review claim. The principal issue was the proper approach, in the light of recent Court of Appeal case-law, to considering applications for leave to remain pursuant to Article 8 in circumstances where the applicant does not satisfy the new provisions of immigration rules (in particular Appendix FM) which seek to capture the generality of Article 8 considerations. 

At para. 33 of his judgment, Edis J. held: 

“The law is that there is always a second stage, but where all relevant considerations have been weighed under the Rules and there are no compelling circumstances not sufficiently recognised under the Rules it will be enough for the decision maker simply to say that. This does not amount to a fetter on the approach of the FTT conducting the kind of appeal which existed at the time of the decision of the FTT in this case. In this kind of case, the issue for the FTT is, or was, always the lawfulness of the refusal to vary the claimant’s leave to remain under section 6 of the 1998 Act. The duty to reach a conclusion on this issue is not circumscribed by any procedural filter, but does involve giving proper weight to the public interest as expressed by the SSHD in lawfully made rules and guidance (and now applying also sections 117A-D of the 2002 Act). The failure to qualify under the Rules will be tend to suggest that the public interest requires refusal of leave to vary, unless some countervailing factors are present which are not already taken into account under the Rules.” 

On the question of the approach to be taken where the Applicant’s failure to meet the requirements of the immigration rules can be described as a ‘near miss’, Edis J. held at paras. 42-43: 

42. In my judgment, a “near miss” should not be left out of account automatically, but the facts which gave rise to it should be weighed in the balance. In many cases they will have very little weight because the aspect of the case which they concern will be fully covered by the Rules, otherwise there would be nothing against which to measure the failure to give it “near miss” status. In the present case, the Rules do fully address “long residence” as a factor on its own. Nothing less than 10 years qualifies. Long residence short of that cannot, on its own, justify leave to remain outside the Rules otherwise the court is creating its own rules with different time periods from those chosen, lawfully, by the SSHD in making her rules. It is, however, a factor which should be taken into account by the FTT among the other circumstances of the case when deciding whether the refusal to vary the leave to remain was lawful under section 6 of the 1998 Act.”

At para. 43 he concluded:

“I have set out an extensive discussion of the current state of the law above, to show that it is quite clear that MM (Lebanon) did not “overrule” Nagre. The law is as explained in Singh, and the reason why it is so is further explained in SS (Congo). Failure under the Rules where they are either a “full code” or where the “gap” between the Rules and the Article 8 factors is small will be a strong factor in deciding a free-standing Article 8 claim outside the Rules. This is because that claim will already have been addressed to a significant extent when rejecting the claim under the Rules. Therefore, the exercise at “stage two” is to identify what factors exist which are relevant to the proportionality assessment which are not fully reflected in the Rules which are designed to cover the generality of cases. Those factors have to be given weight and if they either do not exist, or have such little weight that the consideration under the Rules has given effect to all substantial factors relevant to Article 8, then it will be enough to say so. Where there are factors which are substantial but which could play no, or no sufficient, part in the assessment under the Rules, then a full assessment will be required in which they are balanced against all other relevant considerations including the public interest in effective immigration control.”

Edis J. held that on the facts of the case the First-tier Tribunal had not arguably erred in its approach and that accordingly permission to  proceed with the claim should be refused both on conventional principles and applying the second appeals test as required in judicial review challenges to the Upper Tribunal in the light of CPR r 54.7A(7) and R (Cart) v. Upper Tribunal [2012] 1 A.C. 633. 

Charles Banner appeared for the Secretary of State for the Home Department, instructed by the Government Legal Department.