FB (Pakistan) v SSHD

This is an application for permission to appeal against a determination of the Upper Tribunal (the “UT”). The application was adjourned to an oral hearing by Vos LJ.

The applicant is a Pakistani national who applied on 7 July 2012 for indefinite leave to remain as the dependent relative of a person present and settled in the United Kingdom, namely her son. The application was refused by a decision dated 6 November 2013. It was held first that the applicant had failed to meet the requirements of paragraph 317 of the Immigration Rules; in particular she had not shown that she was dependent on her son or that she had no close relatives in her own country to whom she could turn for financial support. The application was then considered under the rules in paragraph 277C and Appendix FM as regards family life, and paragraphs 276ADE-276DH as regards private life, but it was found that various requirements of those provisions were not met. It was further decided that there were no sufficiently compelling or compassionate circumstances to justify the grant of leave to remain outside the rules.

On appeal to the First Tier Tribunal (the “FTT”) the judge upheld the finding in relation to paragraph 317, making substantial criticisms of the financial evidence and not being satisfied that the applicant was wholly or mainly dependent upon her son. The judge also held that paragraph 276ADE was not met because of the length of time the applicant had been in the United Kingdom and the fact that, as he found, she still had ties with Pakistan. It appears that paragraph 276ADE was the only specific provision of the rules relating to family or private life that was raised on the appeal.

The judge went on to consider a submission that the appeal should succeed in any event under Article 8. He said that following the guidance in Gulshan [2013] UKUT 640 (IAC) there were no compelling circumstances that should lead to his considering the appeal under Article 8. But even if it did fall to be considered under Article 8, adopting the Razgar test, he found by reference to the reasons already given that the applicant’s return to Pakistan would be proportionate.

On appeal to the Upper Tribunal there was a challenge to the findings that led the FTT to hold that paragraph 317 was not satisfied, but the Upper Tribunal Judge concluded that all the findings made by the FTT were open to it. I should mention that the grounds of appeal to this court include a challenge to the UT’s decision on that point, effectively on the basis that there was no evidence to support the FTT’s conclusion and/or that it was an irrational conclusion on the evidence and was inadequately reasoned. That point has not pursued before me by Mr Fripp, who appears today on behalf of the applicant. He was right not to pursue it. The point is hopeless. There is no prospect of establishing irrationality or other error of law on this aspect of the case and in any event the issue gets nowhere near to meeting the second appeal criteria.

The main legal argument before the UT, and the point that led Vos LJ to adjourn the application for permission to today’s oral hearing, was a submission that the FTT had erred in considering the issue of family and private life predominantly under the new rules rather than separately under Article 8. The argument arose out of the fact that the new rules covering family and private life, including Appendix FM and paragraph 276 ADE, were introduced by a statement of changes (HC194) on 9 July 2012 but the transitional provisions in HC194 were to the effect that the old rules continued to apply to applications made before 9 July 2012. As I have said, the applicant’s own application was made on 7 July 2012. It was held in Edgehill [2014] EWCA Civ 402 that the transitional provisions displaced the normal rule that applications are decided by reference to the rules in force at the date of the decision. The UT judge considered himself bound by Edgehill but concluded that, although the FTT judge had considered paragraph 276ADE, this was not an error of law because the judge had gone on to consider the case under Article 8 applying the Razgar test and applying the findings he had already made; findings that in the UT’s view he was entitled to rely on in the Article 8 proportionality assessment. Accordingly, the UT upheld the FTT’s determination.

The grounds of appeal to this court argue that the FTT erred in law by applying the new rules, contrary to Edgehill, and that the UT erred in law in upholding that approach. That, however, is yet another point that Mr Fripp does not pursue before me today. He recognises that the point does not take proper account of later case law. I note that the applicant’s skeleton argument, settled by the applicant’s solicitor and not by Mr Fripp, had pointed out that an apparent difference of approach between Edgehill and the decision in Haleemudeen [2014] EWCA Civ 558 had been resolved in favour of Edgehill by the decision of this court in Singh [2015] EWCA Civ 74. What the skeleton argument did not point out, and in my view it was positively misleading in not pointing this out, was that Singh went on to consider the effect of a further statement of changes (HC565) which took effect on 6 September 2012. As Underhill LJ states in paragraph 56 of his judgment in Singh:

“As from that date the Secretary of State was entitled to take into

account the provisions of Appendix FM and paragraphs 276ADE-276DH in deciding private or family life applications even if they were made prior to 9 July 2012. The result is that the law as it was held to be in Edgehillonly obtained as regards decisions taken in the two-month window between 9 July and 6 September 2012.”

Since the decision in the present case was made in November 2013, that reasoning applies to it and the Secretary of State was clearly entitled, as was the FTT, to take into account the provisions of the new rules relating to family and private life. There was no error of law in the FTT doing so.

Mr Fripp therefore accepts before me that there was no error in considering the issue of private life through the filter, as he puts it, of paragraph 276ADE. That is a concession rightly made and is one that in my judgment ought to have been made by the applicant’s solicitor at a much earlier stage of this case.

Mr Fripp goes on to advance what is in reality a new point, not contained in the grounds of appeal, to the effect that the FTT erred in relation to the consideration of Article 8 outside the rules. He says, first, that the tribunal was wrong to ask whether there were compelling circumstances that should lead to it considering the appeal under Article 8 and that it erred in failing to carry out a detailed analysis of Article 8 applying the Razgar approach. He submits that the intermediate test in Gulshan which was drawn from the case of Nagre [2013] EWHC 720 (Admin) and which the tribunal applied in this case was not endorsed by the Court of Appeal in R (on the application of MM & Ors) v SSHD [2014] EWCA Civ 985. He submits that there was here a material error of law and that the circumstances justify the grant of permission to appeal.

As it seems to me, however, all the court was saying on the relevant Gulshan point (or Nagre point) in MM was that there is not much utility in going through the intermediate stage: if an applicant cannot satisfy the rule, there either is or there is not a further Article 8 claim, which is what the decision-maker will have to determine.

I do not think that there was any material error of law in the way in which the FTT dealt with the matter in the present case. The judge found no compelling circumstances that should lead him to consider the appeal under Article 8. This to my mind is no difference in substance from a finding that there were no compelling circumstances that could cause a claim under Article 8 to succeed, and it is now well-established that a claim under Article 8 outside the rules will not succeed in the absence of compelling circumstances.

The judge went on, moreover, to find in terms that, on the basis of the approach in Razgar and in the light of the findings he had already made, the Secretary of State’s decision was proportionate and there was no breach of Article 8. I accept that the judge’s consideration of this topic was extremely brief, but to my mind brevity was justifiable in the circumstances and I can see no basis for doubting the correctness of the judge’s conclusion. Mr Fripp says that the judge had not carried out the necessary enquiries in the application of the Razgar test, but I see nothing material beyond the matters that had already been considered in the preceding paragraphs of the decision to which the judge ought to have directed his attention. Nothing else appears to have been addressed before him as being relevant to the Article 8 analysis.

Finally and in any event, once it is accepted that the effect of the transitional provisions has been fully considered and resolved in decisions of this court (notably Singh), it cannot be said that there is an important point of principle or practice arising from the decision in this case. I think Mr Fripp accepts that. Nor can it be said, in my judgment, that there is any other compelling reason for an appeal to be heard. On that aspect I do not accept Mr Fripp’s submission that the particular circumstances of this case provide a compelling reason because of the successive changes in the rules, the developing understanding of the legal position and the effect that all this has had on the elderly applicant. The complexity and rate of change of rules in this area has indeed been the subject of strong, adverse judicial comment but it does not provide a good reason for an appeal in this case.

Accordingly, I am satisfied that the application for permission to appeal must be refused.