The Secretary of State for the Home Department v SS (Congo) & Ors

This is the judgment of the court, to which all its members have contributed. The section relating to the four appeals was drafted primarily by Sales LJ and the section relating to the two applications for permission to appeal out of time was drafted primarily by Richards LJ.

The court has before it four appeals in immigration cases and applications for permission to appeal in two other immigration cases. An application by the Secretary of State for permission to appeal in another case was withdrawn by her at the start of the hearing. The appeals and applications were listed together to allow for consideration by this court of the proper approach to be adopted, in light of new Immigration Rules promulgated in July 2012, to applications for leave to enter the United Kingdom by persons who are family members of someone already present here.

The new Rules are contained in Appendix FM to the Immigration Rules, which addresses the position of family members. Appendix FM constituted an attempt by the Secretary of State to reflect more precisely than before the relevant balance to be struck between the public interest and individual interests for the purposes of Article 8 of the European Convention on Human Rights (respect for private and family life), as incorporated in the Human Rights Act 1998 (“the HRA”). Appendix FM relates both to applications for leave to enter the United Kingdom (“LTE”) and to applications by persons already present in the United Kingdom for leave to remain here (“LTR”). It is the effect of the LTE section of the Rules, and in particular the minimum income requirements they stipulate in respect of a person in the United Kingdom who sponsors an application for LTE by a family member overseas, which is in issue on these appeals.

In combination with Appendix FM (which sets out the substantive criteria according to which the Secretary of State will grant LTE or LTR, as the case may be, under the Rules), another section of the new rules, contained in Appendix FM-SE (Family members – specified evidence) to the Immigration Rules sets out evidential requirements to be satisfied if a claim for LTE or LTR under the Rules is made. The effect of Appendix FM-SE is also in issue on these appeals.

A challenge was brought to the legality of the LTR section of the new rules, but was dismissed in the High Court: see R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin). There was no appeal. Nagre has been affirmed by the Court of Appeal as containing an accurate statement of the law on a number of occasions since: see, for example, the recent decision in Singh v Secretary of State for the Home Department [2015] EWCA Civ 74.

A challenge was brought to the legality of the LTE section of the new rules in the High Court in R (MM (Lebanon)) v Secretary of State for the Home Department [2013] EWHC 1900 (Admin). Blake J declined to quash the LTE rules: [120]-[121]. Nonetheless, he went on to consider the proportionality of the LTE rules when measured against the requirements of Article 8 [122]-[148]. He found that, in relation to their application to British citizens and recognised refugees, the new LTE Rules were disproportionate as a matter of human rights law and also an irrational and unjustified restriction on rights under the law relating to recognised refugees and the constitutional rights of British citizens: [144].

A number of determinations followed in the First-tier Tribunal (“FTT”) and Upper Tribunal which considered the ruling by Blake J in MM (Lebanon) and followed and applied his reasoning in relation to the new LTE Rules. The Secretary of State maintains that the present cases before this court fall into this category. The Secretary of State says that, as a result of the decision to follow and apply the reasoning of Blake J in MM (Lebanon), the FTT and the Upper Tribunal fell into error, in that they failed to give proper weight to the legitimate public interest considerations which underlay the formulation of the LTE section of Appendix FM and Appendix FM-SE. In the cases now before the court, the FTT made orders (which were upheld by the Upper Tribunal) to grant LTE where LTE had been refused by various Entry Clearance Officers. The Secretary of State submits in these cases that her appeals should be allowed and that LTE should be refused or the matter remitted to be reconsidered at Tribunal level.

These and other appeals were stayed while the Secretary of State brought an appeal in MM (Lebanon) itself. By a judgment handed down on 11 July 2014 ([2014] EWCA Civ 985; [2014] Imm AR 6) the Court of Appeal unanimously allowed the appeal and reversed Blake J’s judgment in relation to his findings that the new LTE Rules were disproportionate and irrational: see [136]-[154] in the leading judgment of Aikens LJ. The main question which now arises on the present appeals is whether the decisions of the FTT are so affected by the now overruled reasoning at first instance in MM (Lebanon) that the Secretary of State’s appeals should be allowed.

Under the Immigration Act 1971, the Secretary of State has power to make Immigration Rules governing the grant of LTR and LTE and other matters. These are promulgated under the negative resolution procedure. In relevant part, the Immigration Rules set out the conditions which need to be satisfied in order for an applicant to be granted LTR or LTE under the Rules themselves.

An applicant who can show that he or she satisfies the relevant conditions stated in the Rules will be entitled to LTR or LTE (as the case may be) under the Rules. If they can do that, they do not need to rely on wider rights which they may have under Article 8 or other Convention rights incorporated in the HRA.

Under the 1971 Act, the Secretary of State has a wide residual discretion to grant LTR or LTE outside the Rules, i.e. where an applicant cannot show that they satisfy the conditions in the Rules themselves: see R (Munir) v Secretary of State for the Home Department [2012] UKSC 32; [2012] 1 WLR 2192, at [44]. An applicant who does not satisfy the conditions stipulated in the Rules may nonetheless have a good claim to be entitled to enter the United Kingdom or to be allowed to remain here by reason of their Convention rights, e.g. Article 3 (protection against torture and inhumane treatment) and Article 8. Such a claim arises by virtue of the obligation of the Secretary of State under section 6(1) of the HRA to act in a manner compatible with an individual’s Convention rights.

If particular Immigration Rules were formulated in a completely irrational way, it is possible that their lawfulness could be challenged on ordinary domestic public law grounds: see Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, at [6] per Lord Bingham. It seems that this was a dimension of the legal challenge to the new LTE Rules brought in MM (Lebanon): see above. However, such a challenge is likely to be difficult to sustain.

By contrast, in the context which we are dealing with, the fact that particular Immigration Rules do not, taken by themselves, necessarily fulfil the requirements of Convention rights with respect to immigration decisions, does not lead to the conclusion that the Rules are unlawful. That is because any Convention right of an individual which goes beyond the entitlements set out in the Rules can be satisfied by the Secretary of State outside the Rules by exercise of her residual discretion in accordance with such Convention right requirements as may apply in that individual’s case: see, in particular, Huang, above, [17]; AM (Ethiopia) v Entry Clearance Officer [2008] EWCA Civ 1082; [2009] Imm AR 254, [38]-[39]; Nagre, above, [35]-[36] (“No matter how closely, or not, the new rules track the detailed application of Article 8 in individual cases, the immigration control regime as a whole (including the Secretary of State’s residual discretion) fully accommodates the requirements of Article 8. The fact that the new rules do not do that in all cases by themselves does not render them unlawful”); and MM Lebanon [2014] EWCA Civ 985, [128] and [134]-[135]. In MM (Lebanon) in the Court of Appeal, this was one basis on which the challenge to the lawfulness of the new LTE Rules by reference to Article 8 failed.

However, the width of the gap between what the Immigration Rules set out by way of entitlement to enter or remain in the United Kingdom and the requirements resulting from application of a relevant Convention right – in these appeals, we are concerned with rights under Article 8 – may be highly relevant in certain contexts. This is because, in the immigration field, the fair balance required to be struck pursuant to Article 8 between individual interests protected by that provision and the general public interest typically involves bringing into account certain public interest considerations in relation to which the Secretary of State has a legitimate role to fulfil by formulating an approach which gives them proper value and weight. The Secretary of State is responsible for the overall operation of the immigration system as a fair system which properly reflects and balances a range of interests, including important aspects of the public interest, and she is accountable to Parliament for what she does.

In the Convention case-law of the European Court of Human Rights (“ECtHR”) it is well recognised that the national authorities are in principle better placed than the Court to make judgments regarding the needs and resources of their societies (see, e.g., Stec v United Kingdom (2006) 43 EHRR 47, para. [52]) and that “questions of administrative economy and coherence are generally matters falling within the margin of appreciation” which this approach implies (ibid.). Within the national legal order, it is the Secretary of State and Parliament who are in principle best placed to make such judgments. Accordingly, in appropriate contexts, weight may be given by the courts to their assessments about what is required. Typically, this finds expression in allowing a wider margin of appreciation or discretionary area of judgment where such considerations are required to be brought into play in striking the relevant balance between individual and public interests.

This is not to say that the judgments made by the Secretary of State regarding what is required to satisfy Convention rights in an immigration context exclude a decision-making role for the courts: it is clear, not least from the leading decision in Huang, that they do not; and see MM (Lebanon) at para. [149] per Aikens LJ in the Court of Appeal. But if the balance to be struck in a particular case requires account to be taken of public interest considerations in relation to which the Secretary of State has a legitimate role, her assessment will be given the appropriate significant weight: see Huang at para. [16].

If the gap between what Article 8 requires and the content of the Immigration Rules is wide, then the part for the Secretary of State’s residual discretion to play in satisfying the requirements of Article 8 and section 6(1) of the HRA will be correspondingly greater. In such circumstances, the practical guidance to be derived from the content of the Rules as to relevant public policy considerations for the purposes of the balance to be struck under Article 8 is also likely to be reduced: to use the expression employed by Aikens LJ in MM (Lebanon) in the Court of Appeal, at [135], the proportionality balancing exercise “will be more at large”. If the Secretary of State has not made a conscientious effort to strike a fair balance for the purposes of Article 8 in making the Rules, a court or tribunal will naturally be disinclined to give significant weight to her view regarding the actual balance to be struck when the court or tribunal has to consider that question for itself. On the other hand, where the Secretary of State has sought to fashion the content of the Rules so as to strike what she regards as the appropriate balance under Article 8 and any gap between the Rules and what Article 8 requires is comparatively narrow, the Secretary of State’s formulation of the Rules may allow the Court to be more confident that she has brought a focused assessment of considerations of the public interest to bear on the matter. That will in turn allow the Court more readily to give weight to that assessment when making its own decision pursuant to Article 8. An issue arises on this appeal as to whether the Secretary of State has made a conscientious effort to use the new Immigration Rules to strike the fair balance which Article 8 requires and whether there is a substantial gap, or not, between the content of the FTE Rules and the requirements of Article 8.

In the present proceedings, the Appellant was identified as the Secretary of State. Strictly speaking, however, the relevant decision-makers were Entry Clearance Officers, who have functions and exercise powers in their own right, and do not act on behalf of the Secretary of State under the Carltona principle (Carltona Ltd v Commissioners of Works [1943] 2 All ER 560): cf, for example, R (Ivlev) v Entry Clearance Officer, New York [2013] EWHC 1162(Admin). However, it was common ground that nothing turned on this and that there was no difficulty in the appeal proceeding with the involvement of the Secretary of State.

At first instance in MM (Lebanon), Blake J considered the conformity of the minimum income requirements set out in the new LTE Rules with Article 8 in considerable detail. He declined to quash the Rules, on the basis that they could apply in some cases in ways which would be compatible with Article 8, in particular in relation to an application for LTE supported by a foreign sponsor in the United Kingdom with limited or even indefinite leave to remain (by contrast with cases in which the sponsor was a British citizen or a person with refugee status): see [120]-[121] and [154]. However, he identified as “the central question” before him, “whether the minimum income provisions of the maintenance rules when applied to sponsors who are British citizens or refugees whose income and savings combined do not meet them are a disproportionate interference with the right to respect for family life?” ([122]).

Blake J contrasted the minimum income requirement for a sponsor, as stipulated in the LTE Rules, of £18,600 gross per annum for the admission of a spouse without children (paragraph E-ECP 3.1 to 3.2 of Appendix FM) with a minimum income level of £13,400 which had been identified by the Migration Advisory Committee as sufficient to avoid undue burden on public resources. He referred to five features of the LTE Rules which indicated that reliance on the minimum income requirements in the Rules would not be in conformity with the requirements of Article 8 in the case of sponsors who are British citizens or refugees: (i) the wide disparity between the £18,600 figure in the Rules and the £13,400 figure identified by the Migration Advisory Committee; (ii) the requirement of £16,000 before savings can be said under the Rules to rectify an income shortfall; (iii) the use of a 30 month period in the Rules for forward income projection, as opposed to a 12 month period that could be applied in a borderline case of ability to maintain; (iv) “[t]he disregard of even credible and reliable evidence of undertakings of third party support effected by deed and supported by evidence of ability to fund”; and (v) the disregard under the Rules of the incoming spouse’s own earning capacity during the 30 month period of initial entry: [124]. He concluded that, when applied to cases involving sponsors who are British citizens or recognised refugees, the combination of one or more of these features would be so onerous in effect as to be an unjustified and disproportionate interference with a genuine spousal relationship: [123] and [155].

Blake J found that the minimum income requirements and other features of the LTE Rules pursued the legitimate aims of immigrant families not being and not being perceived to be a drain on the public purse in the form of increased access to state benefits, of encouraging them to integrate better with British society and, as a subordinate aim, of promoting transparency, clarity and administrative convenience: [142]. However, in his judgment, the effect of the five features referred to was so intrusive as to be more than necessary to promote such legitimate aims and meant that the minimum income requirements in the LTE Rules were both disproportionate as a matter of human rights law and an irrational and unjustified restriction on rights under the law relating to British citizens and recognised refugees: [144].

The practical effect of Blake J’s analysis was that, in the case of applications for LTE involving sponsors in the United Kingdom who were British citizens or recognised refugees, there was a very wide gap indeed between the cases in which the conditions in the LTE Rules would be satisfied and the cases in which the Secretary of State would be required to grant LTE to incoming spouses by reference to their Article 8 rights by application of her residual discretion. On this approach, the new LTE Rules provided no significant guidance how individual interests and the public interest should be balanced for the purposes of Article 8 and courts and tribunals would not be constrained by those Rules when deciding how that balance should be struck under Article 8 in the individual cases coming before them.

The Secretary of State appealed. Her appeal was upheld in this Court: [2014] EWCA Civ 985; [2014] Imm AR 6. At the hearing before us, Mr Drabble QC, who represented a number of the respondents, contended that the appeal was successful simply because the Court of Appeal recognised that whatever the width of the gap between the LTE Rules and the requirements of Article 8, they should not be struck down as incompatible with Article 8 because of the possibility of compliance with Article 8 in individual cases through reliance on the Secretary of State’s residual discretion and the obligation upon her and tribunals under section 6(1) of the HRA to act compatibly with Convention rights (see para. [13] above). It is fair to say that this analysis forms part of the Court of Appeal’s reasoning: see, in particular, paras. [128]-[135] per Aikens LJ. But it is not a tenable reading of the Court of Appeal’s judgment as a whole that it was limited in this way. On the contrary, the Court of Appeal considered, as Blake J had done in his judgment, whether the new LTE Rules were themselves, in principle, incapable of being compatible with the Article 8 and Article 14 rights of persons affected by them, in particular British citizens, refugees in the United Kingdom and their spouses seeking LTE, because of the intrusive nature of the Rules and the stringency of the minimum income conditions set out in them: see, in particular, [136]-[153].

In this part of its judgment, the Court of Appeal disapproved and overruled the reasoning of Blake J on that issue: see, in particular, [153]. The court held that, in making its own judgment on the question of the proportionality of the Rules, appropriate weight had to be given to the judgment of the Secretary of State, particularly where, as in the case at hand, she had acted on the results of independent research and wide consultations: [149]. The court held that the Secretary of State had discharged the burden of demonstrating that the interference with Convention rights was both the minimum necessary to promote the legitimate aims identified and struck a fair balance between the interests of the groups concerned and the community in general: [151]. The minimum income and other requirements in the new LTE Rules could not be characterised as irrational, inherently unjust or inherently unfair: [151]. There was no unfairness in the treatment of refugees in the United Kingdom, even though they might have difficulty in leaving the United Kingdom to meet their spouse or partner: [152].

The practical effect of the Court of Appeal’s reasoning in this part of its judgment, therefore, is that, contrary to Blake J’s analysis, there will generally be no or only a relatively small gap between the new LTE Rules as promulgated by the Secretary of State and the requirements of Article 8 in individual cases, including those involving sponsors who are British citizens or refugees located in the United Kingdom. The Court of Appeal in MM (Lebanon) did not find it necessary to deal in detail with how wide that gap might be, and accordingly did not have to decide exactly what significance the balance struck in the LTE Rules might have for the Article 8 balancing exercise to be conducted by an official or a court or tribunal: see [160]-[161].

It should be noted that the Court of Appeal in MM (Lebanon) did not say that there could never be cases falling outside the LTE Rules where, on the particular facts of a specific case, Article 8 might require that LTE be granted by the Secretary of State outside the Rules. It left that possibility open. In our judgment, it clearly is possible to imagine that there may be some cases in which LTE is applied for, where the requirements of the Rules are not met, but where the circumstances of the individual case have such force in Article 8 terms that the Secretary of State would be obliged to grant LTE outside the Rules, in the exercise of her residual discretion. We address below the weight to be given to the LTE Rules when the Secretary of State’s officials or a court or tribunal are invited to balance individual interests and the public interest in such a case, where an application for LTE outside the Rules is made.

The Court of Appeal’s judgment in MM (Lebanon) on the central issue in the case, regarding the compatibility in general terms of the minimum income requirements in the LTE Rules with Article 8, is highly relevant to the outcome of the appeals which we now have before us. Put very shortly, the relevant FTT and Upper Tribunal decisions under challenge in these appeals proceeded on the basis of, and followed, the reasoning of Blake J at first instance. Whilst the tribunals cannot be criticised for doing so, the judgment of the Court of Appeal disapproving Blake J’s reasoning makes the decisions vulnerable on appeal.

In Huang v Secretary of State for the Home Department the House of Lords found that the Secretary of State made an exaggerated claim regarding the weight to be given to the expression of policy set out in the Immigration Rules then in force: see [17]. Those Rules had not been formulated by the Secretary of State with specific reference to Article 8. The Appellate Committee gave guidance about the approach to be adopted under Article 8. It pointed out that Article 8 includes not just a negative duty to refrain from unjustified interference with a person’s right to respect for his or her family but also a positive duty to show respect for it (para. [18]), against a background of recognition of the general right of states to control the entry and residence of non-nationals and acknowledgement in the relevant case-law that the Convention confers no right on individuals or families to choose where they prefer to live (ibid.). At paras. [19]-[20] the Committee said this regarding the issue of proportionality:

“19.

In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80, the Privy Council, drawing on South African, Canadian and Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is proportionate:

“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”

This formulation has been widely cited and applied. But counsel for the applicants (with the support of Liberty, in a valuable written intervention) suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103, from which this approach to proportionality derives. This feature is (p 139) the need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted. The House recognised as much in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, paras 17–20, 26, 27, 60, 77, when, having suggested a series of questions which an adjudicator would have to ask and answer in deciding a Convention question, it said that the judgment on proportionality:

“must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage” (see para 20).

If, as counsel suggest, insufficient attention has been paid to this requirement, the failure should be made good.

20.

In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test.”

It is clear, therefore, that it cannot be maintained as a general proposition that LTR or LTE outside the Immigration Rules should only be granted in exceptional cases. However, in certain specific contexts, a proper application of Article 8 may itself make it clear that the legal test for grant of LTR or LTE outside the Rules should indeed be a test of exceptionality. This has now been identified to be the case, on the basis of the constant jurisprudence of the ECtHR itself, in relation to applications for LTR outside the Rules on the basis of family life (where no children are involved) established in the United Kingdom at a time when the presence of one or other of the partners was known to be precarious: see Nagre, paras. [38]-[43], approved by this court in MF (Nigeria) at [41]-[42].

Also, in the part of the Rules dealing with deportation of foreign criminals, the Rules themselves set out a test of “exceptional circumstances”, and this court held in MF (Nigeria) that this rubric covered the application of Article 8 itself, so that no occasion would arise to say that Article 8 might apply outside the Rules: see [38]-[44] (though there was, in fact, no difference of substance even if it could do: see [45]-[46] and the further discussion below). On that interpretation of the “exceptional circumstances” rubric in the Rules (namely, that it is equivalent to a requirement to apply the proportionality test under Article 8: see para. [44]), it could be taken to cover quite a flexible and large category, if, in practice, application of Article 8 in that context would lead to the conclusion that LTR should be granted in a substantial number of cases. However, the court held that “very compelling reasons” would be required to outweigh the public interest in deportation of foreign criminals whose cases did not fall within the substantive provisions in paragraphs 399 and 399A of the Rules (see [43]), and clearly regarded this as an approach which is compatible with the requirements of Article 8. This is to be explained by reference to the weight to be given to the public interest in removal of foreign criminals, which is given expression in sections 32-33 of the UK Borders Act 2007 and paragraphs 399 and 399A of the Rules: see AJ (Angola) v Secretary of State for the Home Department [2014] EWCA Civ 1636, [35]-[41], and Secretary of State for the Home Department v MA (Somalia) [2015] EWCA Civ 48.

In other contexts, it cannot simply be assumed that a strict legal test of exceptional circumstances will be applicable when examining the application of Article 8 outside the Immigration Rules (or within the Rules themselves, where particular paragraphs are formulated so as fully to cover the applicability of Article 8, as in paragraphs 399 and 399A as interpreted in MF (Nigeria)). The relevant general balance of public interest considerations and individual interests will vary between different parts of the Rules. It is only if the normal balance of interests relevant to the general area in question is such as to require particularly great weight to be given to the public interest as compared with the individual interests at stake (as in the precarious cases considered in Nagre and the foreign criminal deportation cases considered in MF (Nigeria)) that a strict test of exceptionality will apply.

However, even away from those contexts, if the Secretary of State has sought to formulate Immigration Rules to reflect a fair balance of interests under Article 8 in the general run of cases falling within their scope, then, as explained above, the Rules themselves will provide significant evidence about the relevant public interest considerations which should be brought into account when a court or tribunal seeks to strike the proper balance of interests under Article 8 in making its own decision. As Beatson LJ observed in Haleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558; [2014] Imm AR 6, at [40], the new Rules in Appendix FM:

“… are a central part of the legislative and policy context in which the interests of immigration control are balanced against the interests and rights of people who have come to this country and wish to settle in it. Overall, the Secretary of State’s policy as to when an interference with an Article 8 right will be regarded as disproportionate is more particularised in the new Rules than it had previously been.”

Accordingly, a court or tribunal is required to give the new Rules “greater weight than as merely a starting point for the consideration of the proportionality of an interference with Article 8 rights” (para. [47]).

In our judgment, even though a test of exceptionality does not apply in every case falling within the scope of Appendix FM, it is accurate to say that the general position outside the sorts of special contexts referred to above is that compelling circumstances would need to be identified to support a claim for grant of LTR outside the new Rules in Appendix FM. In our view, that is a formulation which is not as strict as a test of exceptionality or a requirement of “very compelling reasons” (as referred to in MF (Nigeria) in the context of the Rules applicable to foreign criminals), but which gives appropriate weight to the focused consideration of public interest factors as finds expression in the Secretary of State’s formulation of the new Rules in Appendix FM. It also reflects the formulation in Nagre at para. [29], which has been tested and has survived scrutiny in this court: see, e.g., Haleemudeen at [44], per Beatson LJ.

What, then, should be the position in relation to applications made by family members outside the United Kingdom for LTE to come here to take up or resume their family life? Mr Payne, for the Secretary of State, submitted that since a person actually in the United Kingdom who formed a family life knowing that they had no right to be here could readily be expelled (see the discussion of Nagre, above), so by parity of reasoning no claim for grant of LTE outside the Immigration Rules in Appendix FM could succeed under Article 8 save in truly exceptional circumstances. On the other hand, Mr Drabble, in submissions adopted on behalf of all the respondents, pointed to the fact that the part of Appendix FM which deals with LTR (unlike the part that deals with LTE) contains section EX.1 (exceptions to certain eligibility requirements for leave to remain as a partner or parent), which makes the LTR Rules more generous for applicants than the LTE Rules. Section EX.1 provides for grant of LTR in certain cases where the applicant has a genuine and subsisting parental relationship with a child whom it would not be reasonable to expect to leave the United Kingdom or if the applicant has a genuine and subsisting relationship with a partner in the United Kingdom who is a British citizen or otherwise settled in the United Kingdom and there are “insurmountable obstacles to family life with that partner continuing outside the UK”. Mr Drabble submitted that the omission of section EX.1 from the part of Appendix FM dealing with LTE showed that there was a substantial gap between what Article 8 required in an LTE context and the Immigration Rules themselves, so that a court or tribunal should not accord the LTE Rules significant weight in the Article 8 balancing exercise. Mr Drabble contended that, with respect to the LTE Rules, it was inevitable that in many cases there had to be recourse to the Secretary of State’s residual discretion under the 1971 Act to grant LTE outside the Rules, and that therefore the tribunals in the present cases were justified in attaching little weight to the Rules themselves.

In our judgment, the correct legal approach lies between these extremes. This is because the position in relation to the LTE Rules is different from that in relation to the LTR Rules in two distinct ways.

First, cases involving someone outside the United Kingdom who applies to come here to take up or resume family life may involve family life originally established in ordinary and legitimate circumstances at some time in the past, rather than in the knowledge of its precariousness in terms of United Kingdom immigration controls (as in the type of situation discussed in Nagre). Thus the ECtHR jurisprudence addressing the latter type of case, which was the foundation for the approach in Nagre, will not always be readily applicable as an analogy. A person who is a refugee in the United Kingdom may have had a family life overseas which they had to abandon when they fled. A British citizen may have lived abroad for years without thought of return, and established a family life there, but then circumstances change and they come back to the United Kingdom and wish to bring their spouse with them.

On the other hand, if someone from the United Kingdom marries a foreign national or establishes a family life with them at a stage when they are contemplating trying to live together in the United Kingdom, but when they know that their partner does not have a right to come there (an extreme example of this would be the case of a so-called “mail-order bride”), the relationship will have been formed under conditions of known precariousness which will make the analogy with the Strasbourg case-law reviewed in Nagre a close one (see also Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 at [68]). In that sort of case, it will be appropriate to apply a similar test of exceptional circumstances before a violation of Article 8 will be found to arise in relation to a refusal to grant LTE outside the Rules.

Secondly, however, what is in issue in relation to an application for LTE is more in the nature of an appeal to the state’s positive obligations under Article 8 referred to in Huang at para. [18] (a request that the state grant the applicant something that they do not currently have – entry to the United Kingdom and the ability to take up family life there), rather than enforcement of its negative duty, which is at the fore in LTR cases (where family life already exists and is currently being carried on in the United Kingdom, and family life or any private life established in the United Kingdom will be directly interfered with if the applicant is removed). This means that the requirements upon the state under Article 8 are less stringent in the LTE context than in the LTR context. It is not appropriate to refer to the LTR Rules and the position under Article 8 in relation to LTR, as Mr Drabble does, and seek to argue that Article 8 requires that the same position should apply in relation to applications for LTE.

In our judgment, the position under Article 8 in relation to an application for LTE on the basis of family life with a person already in the United Kingdom is as follows:

In the light of these authorities, we consider that the state has a wider margin of appreciation in determining the conditions to be satisfied before LTE is granted, by contrast with the position in relation to decisions regarding LTR for persons with a (non-precarious) family life already established in the United Kingdom. The Secretary of State has already, in effect, made some use of this wider margin of appreciation by excluding section EX.1 as a basis for grant of LTE, although it is available as a basis for grant of LTR. The LTE Rules therefore maintain, in general terms, a reasonable relationship with the requirements of Article 8 in the ordinary run of cases. However, it remains possible to imagine cases where the individual interests at stake are of a particularly pressing nature so that a good claim for LTE can be established outside the Rules. In our view, the appropriate general formulation for this category is that such cases will arise where an applicant for LTE can show that compelling circumstances exist (which are not sufficiently recognised under the new Rules) to require the grant of such leave.

This formulation is aligned to that proposed in Nagre at [29] in relation to the general position in respect of the new Rules for LTR, which was adopted in this court in Haleemudeen at [44]. It is a fairly demanding test, reflecting the reasonable relationship between the Rules themselves and the proper outcome of application of Article 8 in the usual run of cases. But, contrary to the submission of Mr Payne, it is not as demanding as the exceptionality or “very compelling circumstances” test applicable in the special contexts explained in MF (Nigeria) (precariousness of family relationship and deportation of foreigners convicted of serious crimes).

In our view, it is a formulation which has the benefit of simplicity. It avoids the need for any excessively fine-grained approach at the level of decision-making by officials and tribunals. It should thus help to avoid confusion when cases arise, as they sometimes do, where an application for LTE is made in parallel with an application for LTR: see, e.g., PG (USA) v Secretary of State for the Home Department [2015] EWCA Civ 118.

We should say something about the notion of a “complete code”, which has been deployed in argument in some cases (see, e.g., MM (Lebanon) at paras. [131]-[132] in the judgment of the Court of Appeal). Tribunals and courts should not attach undue weight to this concept, which is capable of giving rise to confusion if not properly understood. In truth, it does not have a significant impact on the proper legal approach to be deployed in any of the types of case to which we have referred.

The proper approach should always be to identify, first, the substantive content of the relevant Immigration Rules, both to see if an applicant for LTR or LTE satisfies the conditions laid down in those Rules (so as to be entitled to LTR or LTE within the Rules) and to assess the force of the public interest given expression in those rules (which will be relevant to the balancing exercise under Article 8, in deciding whether LTR or LTE should be granted outside the substantive provisions set out in the Rules). Secondly, if an applicant does not satisfy the requirements in the substantive part of the Rules, they may seek to maintain a claim for grant of LTR or LTE outside the substantive provisions of the Rules, pursuant to Article 8. If there is a reasonably arguable case under Article 8 which has not already been sufficiently dealt with by consideration of the application under the substantive provisions of the Rules (cf Nagre, para. [30]), then in considering that case the individual interests of the applicant and others whose Article 8 rights are in issue should be balanced against the public interest, including as expressed in the Rules, in order to make an assessment whether refusal to grant LTR or LTE, as the case may be, is disproportionate and hence unlawful by virtue of section 6(1) of the HRA read with Article 8.

Sometimes, the latter stage of the analysis will be covered by the text of the Rules themselves, as in relation to the Rules governing deportation of foreign criminals reviewed in MF (Nigeria). Those Rules laid down substantive conditions which, if satisfied, would lead to the grant of LTR, but also stated that LTR might be granted “in exceptional circumstances” if the substantive conditions were not satisfied in a particular case. Where the Rules take this form, it can be said that they form a “complete code”, in the sense that both stages of analysis are covered by the text of the Rules. But this does not take one very far, since under the “exceptional circumstances” rubric one still has to allow for consideration of any matters bearing on the application of Article 8 for the purposes of the second stage of the analysis: see, e.g., AJ (Angola), above, at [46] and [55]. This is the basic point made by this court at paras. [44]-[46] of its judgment in MF (Nigeria).

In other contexts under the Rules, such as in the sections of the Rules dealing with LTR and LTE, the Rules lay down substantive conditions for grant of leave, but do not themselves say that leave should also be granted in other cases where there are “exceptional circumstances”. Where the Rules take this form, they do not constitute a “complete code” in the sense in which that term is used in MF (Nigeria) at [44], since the Rules themselves only cover the first stage of analysis referred to above, and the second stage is left to be covered under the general law by the Secretary of State’s residual discretion, as governed by her obligations under section 6(1) of the HRA. But just as in the “complete code” case, the second stage of the analysis will be relevant in this class of case too, and any matters germane to the question whether there would be a violation of Article 8 should be brought into account at that stage.

Therefore, as the court said in MF (Nigeria) at para. [45], it is a “sterile question” whether one is dealing with a “complete code” case or a case falling to be addressed in the context of a part of the Immigration Rules which does not constitute a “complete code”. The basic, two-stage analysis will apply in both contexts.

What does matter, however – whether one is dealing with a section of the Rules which constitutes a “complete code” (as in MF (Nigeria)) or with a section of the Rules which is not a “complete code” (as in Nagre and the present appeals) - is to identify, for the purposes of application of Article 8, the degree of weight to be attached to the expression of public policy in the substantive part of the Rules in the particular context in question (which will not always be the same: hence the guidance we seek to give in this judgment), as well as the other factors relevant to the Article 8 balancing exercise in the particular case (which, again, may well vary from context to context and from case to case).

A further word of explanation is in order, before we leave this section of the judgment. The Secretary of State has issued instructions to officials regarding the approach to be adopted to granting leave outside the Rules, in a paragraph (para. 3.2.7d) entitled “Exceptional circumstances”. This is a potential source of confusion. For clarity, two points should be made about it. First, this guidance is not part of the Immigration Rules themselves, and so does not make the LTR and LTE sections of the Rules into a “complete code” in the sense given that term in MF (Nigeria) – but nothing turns on this, as we have explained. Secondly, the text of the instructions makes it clear that the term “exceptional circumstances” is given a wide meaning in the context of the instructions, covering any case in which on proper analysis under Article 8 at the second stage it would be disproportionate to refuse leave. The importance of this was highlighted in Nagre at [13]-[14] and [49]. Thus, the cases covered by the “exceptional circumstances” guidance in the instructions to officials will fall within a wider or a narrower area in line with the changing requirements of Article 8 across the gamut of cases it covers, depending on the context in which the cases arise and their particular facts. As we have sought to explain above, the “exceptional circumstances” contemplated by the instructions are not always as narrowly confined as in the foreign criminal context discussed in MF (Nigeria) and the precarious relationship context discussed in Nagre.

The present appeals concern not only the LTE Rules in Appendix FM which set out the substantive conditions which have to be satisfied in relation to the minimum income requirements for a sponsor, but also the Rules in Appendix FM-SE which stipulate the form of evidence required to substantiate claims that the substantive financial requirements under Appendix FM have been met. Appendix FM-SE deals with matters such as the types of bank statements, payslips, income, savings and so forth which will be regarded as acceptable. In addition, section A1.1(b) states, “Promises of third party support will not be accepted”, and stipulates the highly circumscribed forms which support from third parties is required to take.

In our judgment, the approach to Article 8 in the light of the Rules in Appendix FM-SE should be the same as in respect of the substantive LTE and LTR Rules in Appendix FM. In other words, the same general position applies, that compelling circumstances would have to apply to justify a grant of LTE or LTR where the evidence Rules are not complied with.

This is for two principal reasons. First, the evidence rules have the same general objective as the substantive rules, namely to limit the risk that someone is admitted into the United Kingdom and then becomes a burden on public resources, and the Secretary of State has the same primary function in relation to them, to assess the risk and put in place measures which are judged suitable to contain it within acceptable bounds. Similar weight should be given to her assessment of what the public interest requires in both contexts.

Secondly, enforcement of the evidence rules ensures that everyone applying for LTE or LTR is treated equally and fairly in relation to the evidential requirements they must satisfy. As well as keeping the costs of administration within reasonable bounds, application of standard rules is an important means of minimising the risk of arbitrary differences in treatment of cases arising across the wide range of officials, tribunals and courts which administer the system of immigration controls. In this regard, the evidence Rules (like the substantive Rules) serve as a safeguard in relation to rights of applicants and family members under Article 14 to equal treatment within the scope of Article 8: compare AJ (Angola), above, at [40], and Huang, above, at [16] (“There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; … the need to discourage fraud, deception and deliberate breaches of the law; and so on …”). Good reason would need to be shown why a particular applicant was entitled to more preferential treatment with respect to evidence than other applicants would expect to receive under the Rules. Moreover, in relation to the proper administration of immigration controls, weight should also be given to the Secretary of State’s assessment of the evidential requirements needed to ensure prompt and fair application of the substantive Rules: compare Stec v United Kingdom, cited at para. [15] above. Again, if an applicant says that they should be given more preferential treatment with respect to evidence than the Rules allow for, and more individualised consideration of their case, good reason should be put forward to justify that.

At the hearing, there was debate about the proper approach to be adopted in ‘near miss’ cases, for example if the sponsor of an applicant for LTE could provide evidence of an annual income a little less than the £18,600 required or could provide evidence which might be regarded as similar to (but not the same as) that required under Appendix FM-SE. Mr Payne, for the Secretary of State, made submissions to the effect that ‘a miss is as good as a mile’ and that the fact that one is dealing with a ‘near miss’ case should be irrelevant to the Article 8 balancing exercise required. The general position of the respondents, on the other hand, was that great weight should be attached to the fact that there was a ‘near miss’ by an applicant in relation to the requirements of the Rules.

In our judgment, the true position lies between these submissions. Contrary to the argument of the respondents, that fact that an applicant may be able to say that their case is a ‘near miss’ in relation to satisfying the requirements of the Rules will by no means show that compelling circumstances exist requiring the grant of LTE outside the Rules. A good deal more than this would need to be shown to make out such a case. The respondents’ argument fails to recognise the value to be attached to having a clear statement of the standards applicable to everyone and fails to give proper weight to the judgment of the Secretary of State, as expressed in the Rules, regarding what is needed to meet the public interest which is in issue. The ‘near miss’ argument of the respondents cannot be sustained in the light of these considerations and the authority of Miah v Secretary of State for the Home Department [2012] EWCA Civ 261, especially at [21]-[26].

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

In certain of the appeals before us, the respondents said that improvements in the position of their sponsors were on the horizon, so that there appeared to be a reasonable prospect that within a period of weeks or months they would in fact be able to satisfy the requirements of the Rules. They maintained that the Secretary of State should have taken this into account when deciding whether to grant LTE outside the Rules. In our judgment, however, this affords very weak support for a claim for grant of LTE outside the Rules. The Secretary of State remains entitled to enforce the Rules in the usual way, to say that the Rules have not been satisfied and that the applicant should apply again when the circumstances have indeed changed. This reflects a fair balance between the interests of the individual and the public interest. The Secretary of State is not required to take a speculative risk as to whether the requirements in the Rules will in fact be satisfied in the future when deciding what to do. Generally, it is fair that the applicant should wait until the circumstances have changed and the requirements in the Rules are satisfied and then apply, rather than attempting to jump the queue by asking for preferential treatment outside the Rules in advance.

In this context, there is a relevant feature of the legal framework governing these immigration appeals which should be referred to. By virtue of section 85(4) and (5) of the Nationality, Immigration and Asylum Act 2002, read with section 85A(2) (which were the applicable provisions in these cases: the statute has since been amended), an appeal against a decision refusing LTE is to be heard by the FTT by reference to the evidence and circumstances which applied when the matter was considered by the Entry Clearance Officer. Section 85A(2) provides that “the Tribunal may consider only the circumstances appertaining at the time of the decision [i.e. the immigration decision taken by the Officer]”. Changes in circumstances are not to be brought into account on the appeal: if there is a significant change of circumstances, a new application can be made to the Entry Clearance Officer, and that will be the proper course for an applicant to take who wishes to rely on such change of circumstances, even though a new application fee will be payable. When the Upper Tribunal or this court reviews the lawfulness of a decision of the FTT, it obviously will likewise do so having regard to the evidence and circumstances to which the FTT was obliged to have regard, without bringing into account later materials. Accordingly, it will be irrelevant on an appeal to the FTT and on any further appeal that what was as yet an unrealised possible future compliance with the Rules at the time the application for LTE was first considered by an Entry Clearance Officer and rejected may have matured as the applicant hoped so that, by the time of the appeal, the requirements of the Rules are satisfied. An applicant is not entitled to apply for LTE at a time when the requirements of the Rules are not satisfied, in the hope that by the time the appellate process has been exhausted those requirements will be satisfied and LTE will be granted by the appellate tribunal or court. This would be an illegitimate way of trying to jump the queue for consideration of the applicant’s case and would represent an improper attempt to subvert the operation of the Rules. Sections 85 and 85A(2) prevent consideration of an application for LTE in this way.

There are before the court two cases involving applications for permission to appeal out of time and four cases in which appeals are already properly on foot, where permission to appeal had been granted previously. In the event, as we announced in the course of the hearing, we refused an extension of time in the two cases in which it was sought, with reasons to follow. Our reasons for doing so appear in a later section of this judgment. Before that, in the next section of the judgment, we deal with the outcome in the individual cases in the appeals in the latter group of cases.