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 An application by the Secretary of State for permission to appeal in another case was withdrawn by her at the start of the hearing.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:

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:

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:

A person outside the United Kingdom may have a good claim under Article 8 to be allowed to enter the United Kingdom to join family members already here so as to continue or develop existing family life: see e.g. Gül v Switzerland (1996) 22 EHRR 93 and Sen v Netherlands (2001) 36 EHRR 7. Article 8 does not confer an automatic right of entry, however. Article 8 imposes no general obligation on a state to facilitate the choice made by a married couple to reside in it: R (Quila) v Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621, para. [42]; Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, [68]; Gül v Switzerland, [38]. The state is entitled to control immigration: Huang, para. [18].

The approach to identifying positive obligations under Article 8(1) draws on Article 8(2) by analogy, but is not identical with analysis under Article 8(2): see, in the immigration context, Abdulaziz, Cabales and Balkandali v United Kingdom, paras. [67]-[68]; Gül v Switzerland, [38]; and Sen v Netherlands, [31]-[32]. See also the general guidance on the applicable principles given by the Grand Chamber of the ECtHR in Draon v France (2006) 42 EHRR 40 at paras. [105]-[108], summarising the effect of the leading authorities as follows (omitting footnotes):

In deciding whether to grant LTE to a family member outside the United Kingdom, the state authorities may have regard to a range of factors, including the pressure which admission of an applicant may place upon public resources, the desirability of promoting social integration and harmony and so forth. Refusal of LTE in cases where these interests may be undermined may be fair and proportionate to the legitimate interests identified in Article 8(2) of “the economic well-being of the country” and “the protection of the rights and freedoms of others” (taxpayers and members of society generally). A court will be slow to find an implied positive obligation which would involve imposing on the state significant additional expenditure, which will necessarily involve a diversion of resources from other activities of the state in the public interest, a matter which usually calls for consideration under democratic procedures.

On the other hand, the fact that the interests of a child are in issue will be a countervailing factor which tends to reduce to some degree the width of the margin of appreciation which the state authorities would otherwise enjoy. Article 8 has to be interpreted and applied in the light of the UN Convention on the Rights of the Child (1989): see In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] AC 144, at [26]. However, the fact that the interests of a child are in issue does not simply provide a trump card so that a child applicant for positive action to be taken by the state in the field of Article 8(1) must always have their application acceded to; see In re E (Children) at [12] and ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166, at [25] (under Article 3(1) of the UN Convention on the Rights of the Child the interests of the child are a primary consideration – i.e. an important matter – not the primary consideration). It is a factor relevant to the fair balance between the individual and the general community which goes some way towards tempering the otherwise wide margin of appreciation available to the state authorities in deciding what to do. The age of the child, the closeness of their relationship with the other family member in the United Kingdom and whether the family could live together elsewhere are likely to be important factors which should be borne in mind.

If family life can be carried on elsewhere, it is unlikely that “a direct and immediate link” will exist between the measures requested by an applicant and his family life (Draon, para. [106]; Botta v Italy (1998) 26 EHRR 241, para. [35]), such as to provide the basis for an implied obligation upon the state under Article 8(1) to grant LTE; see also Gül v Switzerland, [42].

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.

By a decision dated 4 January 2013, the Entry Clearance Officer rejected SS’s application for LTE, on the grounds that her sponsor husband’s income was below the £18,600 required and that documents submitted in support of her application did not meet the requirements set out in Appendix FM-SE. The Entry Clearance Officer said in his decision that in the material adduced by SS in support of her application she stated that her sponsor had one employment only, with an annual income of £11,440.

However, on her appeal to the FTT, this was identified as an erroneous understanding of the position. The sponsor in fact had two jobs and had provided evidence about his earnings from both of them, which amounted to £16,194 for the tax year 2011/12 (and had increased to £17,000 by the time of the hearing before the FTT): see para. [11] of the FTT’s decision, promulgated on 1 November 2013. Although this was still below the £18,600 required by the Rules, the FTT allowed SS’s appeal.

The relevant operative decision is that of the FTT. By a determination promulgated on 13 February 2014, the Upper Tribunal dismissed the Secretary of State’s appeal against the FTT’s decision, holding that although the FTT had erred in its approach under Article 8, it had not done so in a material way.

SS is a citizen of the Democratic Republic of the Congo (“DRC”). She made her application for LTE with reference to the income of her husband, a refugee from the DRC who is in the United Kingdom (previously with indefinite leave to remain, then as a naturalised British citizen). SS and her husband married after he had left the DRC. It is unclear from the materials available to us how they established their relationship. The FTT found that SS’s husband could not return to the DRC and that SS and her husband would not be able to settle there: [27] and [29].

As is clear from paras. [23], [26] and [29] of its decision, the FTT followed and applied the reasoning of Blake J at first instance in MM (Lebanon), referring in particular to the argument upheld by Blake J that an income level of £13,400 p.a. should be sufficient in the case of a refugee sponsor. The FTT also reasoned that the sponsor’s earnings of £17,000 at the date of the FTT’s decision were “only marginally below the £18,600 required” (i.e. it attached significant weight to the fact that it regarded this as a ‘near miss’ case), while adherence to the £18,600 requirement would make it impossible for SS to come to the United Kingdom in the near future: [30]. The FTT also attached weight to the fact that SS had recently suffered a stillbirth, and was traumatised and needed the support of her husband: [31]-[32]. (This, like the information about the sponsor’s increase in earnings to £17,000 p.a., was material which had not been available at the time of the decision by the Entry Clearance Officer, so by virtue of section 85 and 85A of the 2002 Act it should not have been taken into account by the FTT, as the FTT itself acknowledged at [18]; but it seems that the FTT took itself to be acting in the shoes of the Officer, rather than remitting the case to him for reconsideration on grounds of his own misunderstanding of the facts: see [24]). The FTT held that application of the £18,600 requirement in this case would be disproportionate, because it would prevent SS from coming to the United Kingdom to take up family life here, while the FTT was satisfied that SS and her husband would be able to live here without placing additional strain on the public purse: [32].

In our judgment, the FTT’s decision discloses an error of law, in its reliance on the reasoning of Blake J, now disapproved by the Court of Appeal in MM (Lebanon), regarding the relevance for Article 8 purposes of a lower annual income figure for a sponsor of £13,400. In association with this error, the FTT also erred in failing to give proper weight to the minimum income requirement in the Rules, in giving excessive weight to the ‘near miss’ aspect of the case and by failing properly to identify valid compelling circumstances which required the grant of LTE in this particular case. The FTT also erred in having regard to new evidence adduced after the date of the refusal of LTE by the Entry Clearance Officer.

Mr Drabble said that there were insurmountable obstacles to SS’s husband being able to travel to join her to resume their family life together in the DRC, as he is a refugee from the DRC and could not be expected to return there. Mr Drabble submitted that this meant that enforcement of the minimum income requirements in the Rules in SS’s case would obviously be disproportionate, and that the appeal should therefore be dismissed. He also pointed to section EX.1 in the section of the Immigration Rules dealing with LTR, under which the existence of insurmountable obstacles to carrying on family life outside the United Kingdom is a basis for grant of LTR, and argued that Article 8 required that the same approach should be adopted in relation to an application for LTE.

We do not agree with these submissions. As explained above, there are important material differences for the purposes of Article 8 between applications for LTE and applications for LTR, and a state is not required to adopt as accommodating an approach in the former context as in the latter. Moreover, at a time before section EX.1 of the new Rules was promulgated, the House of Lords in Huang contemplated that both in the context of applications for LTR and in the context of applications for LTE, it might well be the case, depending on the circumstances, that the Secretary of State could lawfully refuse an application, without violation of Article 8, even though the family life relied upon “cannot reasonably be expected to be enjoyed elsewhere”: see para. [20], quoted above. This is another way of saying that this feature of a case does not, without more, create a right for a family member to enter or remain in the United Kingdom. In that paragraph, Lord Bingham also explained that, even on the Immigration Rules in the form they had prior to their amendment in July 2012, his expectation was that the number of claimants entitled to succeed under Article 8 in claiming LTE or LTR outside the Rules “would be a very small minority”. Thus, contrary to Mr Drabble’s contention, it is not at all clear that a proper approach under Article 8 must involve a decision to grant LTE to SS in this case.

Accordingly, we allow the appeal in this case. Mr Payne accepted that, on the footing the appeal was allowed, the appropriate course would be for SS’s appeal against the decision refusing LTE to be remitted to the Upper Tribunal for fresh consideration in light of the guidance given in this judgment. He submitted that, on a reconsideration, the Tribunal will be required to apply sections 117A and 117B of the 2002 Act, which came into effect on 28 July 2014. Those provisions seek to set out a framework in primary legislation for taking account of certain public interest considerations applicable in respect of Article 8 in immigration cases. Exactly what role those provisions should play in the reconsideration of the case by the Upper Tribunal will be for argument before the Tribunal.

By a decision dated 27 February 2013, the Entry Clearance Officer dismissed an application by a mother and her young son, BM, for LTE to join their husband/father (the sponsor for their applications) in the United Kingdom. This was on the basis that the Entry Clearance Officer was not satisfied that the sponsor could meet the relevant minimum income requirement under the Immigration Rules. Under the Rules, the minimum income required on the part of a sponsor in relation to a spouse and child applying for LTE is £22,400 p.a. (£18,600 plus £3,800 for the first child). However, the sponsor’s income was only stated to be £22,080 p.a. (it is unclear from the papers available to us whether this was evidenced in the manner required by Appendix FM-SE, but no point was taken on this).

By a decision promulgated on 30 December 2013, the FTT allowed the appeal by BM and his mother. Again, it is the FTT’s decision which is the relevant operative decision for the purposes of this appeal, since by a determination of 28 April 2014 the Upper Tribunal dismissed the Secretary of State’s appeal against it.

This case concerns a family of a husband, wife and child, all of whom are citizens of Afghanistan. The husband, who is the sponsor in relation to the application, is additionally a British national. He is present in the United Kingdom and has been resident here for over ten years. The husband does not have refugee status, and there is no suggestion in the materials submitted in support of the applications by his wife and their son for LTE that there is anything to prevent him returning to Afghanistan to resume family life there, if he so chose.

At the time of the decision by the Entry Clearance Officer, the husband’s salary was stated to be £22,080 p.a.. At the hearing before the FTT, new evidence was adduced in the form of a letter from his employer to the effect that his salary was now £22,680 p.a. (see para. [9] of the FTT’s decision). This pay rise was taken into account by the FTT in its assessment under Article 8: see [19].

The FTT stated that the case before it “turns almost exclusively” on the dicta by Blake J at first instance in MM (Lebanon) ([14]). The FTT allowed the appeal against the Secretary of State’s decision to refuse to grant LTE on the basis that, following Blake J’s judgment in MM (Lebanon), the earnings of £22,080 should be regarded as adequate for the parties to live on ([19]-[20]). The FTT also had regard to the fact that a few weeks after the decision refusing LTE, the sponsor’s income rose above the level required under the Rules ([19]). For these two reasons, the FTT held that the decision to refuse LTE was disproportionate and that “There are no facts that should prevent this family being reunited”: [20].

In our judgment, the FTT erred in law in relation to both aspects of its reasoning. As regards the first, as a result of being led into error by following the first instance judgment in MM (Lebanon), now disapproved by the Court of Appeal, the FTT failed to give proper weight to the minimum income requirements in the Rules and failed to give proper consideration to whether there were any compelling circumstances which created a requirement for the grant of LTE. As regards the second, the FTT acted in breach of the requirements of sections 85 and 85A of the 2002 Act by having regard to changes in circumstances after the date of the decision refusing LTE.

Accordingly, we allow the appeal in this case as well. Mr Payne submitted that this is a clear case in which, on a proper approach, the FTT should have dismissed BM’s appeal against the refusal of LTE. Therefore, it was unnecessary for the case to be remitted for fresh consideration by the Upper Tribunal.

We agree. There was nothing in the facts to indicate that family life could not be resumed in Afghanistan. This is a case in which the family simply preferred to come to live in the United Kingdom; but there is no requirement under Article 8 that such a preference should be accommodated. There was nothing in the evidence which could begin to support a claim that compelling circumstances existed requiring the grant of LTE outside the Rules.

BB is a citizen of Pakistan and resides there. BB’s husband has British nationality. By a decision dated 15 November 2012, the Entry Clearance Officer refused BB’s application for LTE on the basis that, although her husband/sponsor’s total claimed income from two employments (£15,975 from Royal Mail and £3,161 from Chandan & Co.) was greater than the £18,600 required under the Rules, the evidential requirements under Appendix FM-SE had not been satisfied in relation to the second employment. Accordingly, the Entry Clearance Officer was not satisfied that the minimum income requirements under the Rules were satisfied.

The relevant operative decision is again that of the FTT, dated 4 February 2014, allowing BB’s appeal. By a determination dated 8 April 2014, the Upper Tribunal dismissed the Secretary of State’s appeal against that decision, and she now appeals to this court.

The FTT held that the evidential requirements in relation to the employment with Chandan & Co. had not been fulfilled: [10]-[14]. Nonetheless, the FTT allowed the appeal and granted LTE. The FTT applied the reasoning of Blake J at first instance in MM (Lebanon), and observed that the husband’s income from his employment with Royal Mail was significantly above the £13,400 level referred to by Blake J ([18]-[20]). The FTT also had regard to information available about the husband’s employment with Chandan & Co., including evidence (the husband’s P60 for the year to 5 April 2013) which had not been provided by the time of the Entry Clearance Officer’s decision to refuse LTE, and concluded that at the date of refusal the husband’s total income was in excess of £18,600: [21]. Thirdly, the FTT had regard to further documents relating to the husband’s accommodation, made available on the appeal (it seems they were not provided by the time of the decision to refuse LTE): a tenancy agreement for the husband’s parents and a letter from them stating that he was living with them rent free, and BB could also do so. The FTT said that it had been “given no reason to find that that offer of third party support was not genuine or sustainable”: [22]. In addition, the FTT found that the husband had been born in the United Kingdom and could not be expected to relocate to Pakistan to live with BB, and in the light of all these factors found that insistence on the requirements in the Rules was disproportionate: [23].

In our judgment, in this case also the FTT erred in law in its decision in several respects. It placed excessive weight on the guidance figure of £13,400 p.a. relied upon by Blake J, in a manner disapproved by the Court of Appeal in MM (Lebanon), and gave insufficient weight to the £18,600 p.a. threshold in the Rules. It failed to give proper consideration to whether there were compelling circumstances to justify the grant of LTE outside the Rules. It failed to give proper consideration to whether there were compelling circumstances to justify acceptance of evidence which did not satisfy the Rules in Appendix FM-SE in relation to the employment with Chandan & Co. (and on the facts presented, none existed); it also contravened sections 85 and 85A of the 2002 Act by taking into account on this issue evidence which had not been made available to the Entry Clearance Officer. The FTT gave excessive weight to the fact that the sponsor was a British national (contrary to the judgment of the Court of Appeal in MM (Lebanon)), and did not give proper consideration to the possibility of continuing family life in Pakistan.

The FTT also erred in relation to the weight that it gave to the availability of rent-free accommodation for BB and her husband in the United Kingdom. It is true that the minimum income requirements in the Rules had been set on the assumption that the income would have to be used, in part, to secure accommodation. However, there are two problems with the way in which FTT took this factor into account. First, the fact that the Rules required even well-evidenced undertakings of third party support to be disregarded was a matter specifically adverted to by Blake J as one of the five features indicative of disproportionality set out by him at para. [124] of his judgment in MM (Lebanon), and was part of his reasoning overruled by the Court of Appeal in that case. Secondly, the Secretary of State had a legitimate interest to exclude reference to third party support other than in tightly circumscribed contexts as set out in the Rules (as one aspect of her control of the risk of access to public resources by incoming migrants granted LTE), and it was not properly open to the FTT to ignore her assessment as it did. The FTT should have examined whether compelling circumstances existed to require the grant of LTE outside the Rules on the basis of this factor: there were none.

In relation to this case, Mr Payne submitted that it is clear on the evidence available when LTE was refused by the Entry Clearance Officer that this was a lawful decision which did not violate Article 8 and that accordingly, if the appeal is allowed, there is no need for the case to be remitted to the Upper Tribunal for further consideration. We agree. This is a case in which the sponsor, a British citizen, wished to be joined by his foreign national wife to take up family life in the United Kingdom, rather than continuing it in her home country. It appears that the family life was commenced in circumstances where it was known to be precarious, if the couple wished it to be carried on in the United Kingdom. Moreover, there was nothing to prevent the husband from going to Pakistan to continue their family life there. Article 8 does not give rise to an obligation on the state to accommodate a preference to pursue family life in the United Kingdom rather than overseas. At the time of the refusal of LTE, the minimum income requirements in the Rules in respect of the sponsor were not satisfied. There were no compelling circumstances to require the grant of LTE outside the Rules. If the sponsor expected to be able to satisfy the minimum income and evidence requirements in the near future, the appropriate course was to wait and submit a properly supported application for LTE when the requirements in the Rules could be satisfied. There was nothing disproportionate in the Secretary of State applying the Rules according to their terms in this case.

FA is a citizen of Somalia, who is currently in Uganda. Her husband was born in Somalia, but came to the United Kingdom at the age of 7 and was naturalised as a British citizen in 2010. They met in 2005, developed a relationship from 2008 and got married in Kampala in 2010. FA’s husband has visited her in Kampala on a number of occasions since then.

On 27 November 2012 the Entry Clearance Officer dismissed FA’s application for LTE. He found that the income of her husband/sponsor did not satisfy the minimum income requirements. FA stated that her husband had two jobs, one since 2007 with Maple Leaf Bakery with pay of £16,380 p.a. and one with Geesgood Grocery from 1 September 2012. The Entry Clearance Officer pointed out that under the Rules FA was required to demonstrate that her sponsor had received a total income of £18,600 in the previous 12 months, which she had failed to do. He also found that she had failed to submit evidence of income which satisfied the requirements of Appendix FM-SE.

Once again, the relevant operative decision is that of the FTT, promulgated on 7 February 2014, by which it allowed FA’s appeal. By a determination promulgated on 26 June 2014, the Upper Tribunal dismissed the Secretary of State’s appeal, and she now appeals to this court.

The FTT was not satisfied that the husband had received remuneration at the level he claimed from Geesgood Grocery, but accepted that for the tax year ending April 2013 he earned £15,283 from his employment with Maple Leaf Bakery: [21]. The FTT then proceeded to hold that Article 8 required that LTE should be granted outside the Rules on the footing that, following the reasoning of Blake J at first instance in MM (Lebanon), the setting of a minimum income level of above £13,400 was excessive and disproportionate in its impact: [25]. The FTT also gave weight to the fact that the husband is a British citizen who would lose a secure job in the United Kingdom and would struggle to find employment to support himself and his wife in Uganda if he left to live with her there, and it took into account that neither of them were Ugandan nationals: [26]. The FTT gave weight to the possibility that FA might be able to obtain part-time employment in the United Kingdom to top up the couple’s income: [27]. The FTT held that it was not proportionate to apply the Rules and require FA to make a further application, because she had previously been refused entry clearance on the grounds of being under 21 years old (a criterion which had subsequently been held to be unlawful in the Quila case, above) and having regard to Blake J’s decision in MM (Lebanon) and the separation that the couple had already endured since they married: [28].

In our judgment, the FTT again erred in law in a number of respects. It placed excessive weight on the guidance figure of £13,400 p.a. relied upon by Blake J, in reasoning now disapproved by the Court of Appeal in MM (Lebanon), and gave insufficient weight to the £18,600 p.a. minimum income requirement in the Rules. It failed to give proper consideration to whether there were compelling circumstances to justify the grant of LTE outside the Rules. In fact, the marriage was entered into at a time when it was known that FA had no right to come to the United Kingdom; moreover, there is no impediment to the husband going to continue family life with her in Uganda. The fact that he would lose his job in the United Kingdom and hence would prefer to establish family life here does not constitute compelling circumstances to require the grant of LTE outside the Rules: as the authorities make clear, Article 8 does not create a right for married couples to choose to live in a Contracting State.

Further, the FTT seems to have erred by accepting evidence regarding the husband’s income which did not satisfy the requirements in Appendix FM-SE, and failed to give proper consideration to whether there were compelling circumstances to justify acceptance of such evidence. It also erred in giving weight to the speculative possibility that FA might be able to obtain paid employment in the United Kingdom, in circumstances where such a consideration was outside what is allowed under the Rules and where there was no good reason to justify a departure from the Rules in that regard.

The FTT also erred in saying that it would not be proportionate to expect FA to make a further application. Since FA’s application failed to comply with the Immigration Rules and no compelling circumstances were identified why those Rules should not be applied in her case in the usual way, there was nothing disproportionate in applying the Rules in accordance with their terms, with the effect that FA’s application failed and she would have to make a new one. The Entry Clearance Officer (and the FTT) was not required to waive the operation of the Rules as some sort of goodwill gesture because of the way in which FA’s previous application had been dealt with.

Accordingly, we allow the appeal in this case as well. Shortly before the appeal commenced in this court, FA sent an email indicating that she proposed making a new application for LTE (presumably to bring into account up-to-date evidence and circumstances), and that she did not wish to continue with her application which is the subject of the appeal. In the light of this, no purpose would be served in remitting the case to the Upper Tribunal for further consideration.

We allow the appeals in each of SS (Congo), BM (Afghanistan), BB (Pakistan) and FA (Somalia) and will set aside the order of the Upper Tribunal in each case. In SS (Congo), the case is remitted to the Upper Tribunal for fresh consideration in the light of this judgment. In each of the other cases we will substitute our own decision, dismissing the applicant’s appeal to the Tribunal against the decision of the Entry Clearance Officer.

In two of the cases before us, namely AC (Canada) and KG (India), the Secretary of State required an extension of time for applying for permission to appeal. An extension would also have been required in a third case, NH (Yemen), but the Secretary of State abandoned her pursuit of that case at the outset of the hearing. We received written submissions from Mr Payne in support of the applications for an extension, and from Mr Drabble (for AC) and Mr Collins (for KG) in opposition to the applications. At the hearing, we heard oral submissions from Mr Payne but did not find it necessary to call on Mr Drabble and Mr Collins to respond. We announced our decision to refuse an extension of time in both cases, for reasons to be given in this judgment. Those reasons are as follows.

It is common ground that the governing principles are those laid down in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, in which this court held that applications for extension of time for filing a notice of appeal should be approached in the same way as applications for relief from sanction under CPR rule 3.9 and in particular that the principles to be derived from Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795 and Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926 apply to them. According to the Denton restatement of the Mitchell guidance, in particular at paras. [24]-[38] of the judgment of the Master of the Rolls and Vos LJ in Denton, a judge should address an application for relief from sanction in three stages, as follows:

The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance.

The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell (at para. [41]) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.

The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders. As stated in para. [35] of the judgment in Denton:

The court in Hysaj added some points of particular relevance to the present context. At para. [41] of his judgment, Moore-Bick LJ (with whom the other members of the court agreed) said that it would be quite wrong to construct a special regime for applications for extensions of time in public law cases, but he accepted that “the importance of the issues to the public at large is a factor that the court can properly take into account when it comes at stage three of the decision-making process to evaluate all the circumstances of the case”. At para. [42] he rejected the contention that the court could construct a special rule for public authorities, which “have a responsibility to adhere to the rules just as much as any other litigants”. He added that the nature of the proceedings and the identification of the responsibility for delay are factors which it may be appropriate to take into account at the third stage.

Another point concerned the merits of the substantive appeal, as to which Moore-Bick LJ said this at para. [46]:

The timetable in each of the two cases for which an extension of time was sought was as follows.

In AC (Canada) the determination of the Upper Tribunal under appeal was promulgated on 13 November 2013. On 29 November 2013 the Secretary of State applied to the Upper Tribunal for permission to appeal to the Court of Appeal. Permission was refused by the Upper Tribunal in a decision issued on 9 January 2014. An appellant’s notice was filed in the Court of Appeal on 3 March 2014, which was 24 days out of time.

In KG (India) the determination of the Upper Tribunal under appeal was promulgated on 13 February 2014. The Secretary of State applied to the Upper Tribunal for permission to appeal to the Court of Appeal. The application was undated but was received by the tribunal 5 days out of time. Permission was refused by the Upper Tribunal by a decision issued on 27 May 2014. An appellant’s notice was filed in the Court of Appeal on 15 October 2014, which was 3 months 21 days out of time.

As indicated below, the delays were not accidental or isolated but were systemic. By way of further illustration, the appellant’s notice in NH (Yemen) was filed in the Court of Appeal 5 months 6 days out of time.

An explanation of the delays is offered in the witness statement of Mr John McGirr, a Senior Executive Officer in the Specialist Appeals Team of the UK Visas and Immigration Directorate. We take the following from the summary set out in Mr Payne’s skeleton argument.

The Specialist Appeals Team currently numbers 14 full time officials (4 Senior Executive Officers and 10 Higher Executive Officers) and is tasked with representing the Secretary of State at Upper Tribunal hearings and drafting grounds of appeal against allowed determinations which are considered to be flawed. In or around September 2013 the Appellate Authority decided to clear a large backlog of entry clearance appeals that had accumulated. This led to a rapid and substantial increase in the numbers of appeals listed and determinations issued: for example, the number of allowed appeals increased from an average of 450 per month in the period May-September 2013 to a peak of 1060 in February 2014, before dipping back again. This led to a significant increase in the workload of staff from the Specialist Appeals Team. The situation was exacerbated by the fact that this surge of work happened at a time when the Team was experiencing an acute shortage in experienced staff: whilst there had been an increase from 9 to 14 full time officials, it took 5 months to get staff members trained, and a further 6 months for new staff to be fully effective, and 2 experienced staff were on long-term sick leave. The situation was further exacerbated by the refusal of the Appellate Authority (which is not criticised) to stay appeals involving the decision in MM (Lebanon).

In conclusion, it is said that the Specialist Appeals Team was faced with a situation where, at a time when there was a lack of experienced staff, there was an unusually high number of appeals requiring representation, an unusually high number of allowed determinations to consider, and an exceptionally high percentage of those allowed determination that needed to be appealed. This led to increasing delays in determinations being considered and appeals drafted. As well as recruiting staff, in order to try to address these difficulties junior counsel were instructed to provide advice and draft grounds of appeal. This still left, however, a significant monthly shortfall which the Team struggled to deal with.

In addition, operational decisions had to be taken on which work to prioritise. It was decided to prioritise criminal deportation cases. That decision further impacted on the delays in appealing non-deportation cases such as those now in issue.

A further factor referred to in Mr Payne’s skeleton argument is that until the Court of Appeal handed down its judgment in MM (Lebanon) in July 2014, “it was unclear whether appeals on the grounds that the judgment in MM was flawed had good prospects of success”. Mr Payne explained at the hearing that a notice of appeal was filed in this court in AC (Canada) in advance of the Court of Appeal’s judgment in MM (Lebanon) only because the parties in MM (Lebanon) were relying on the Upper Tribunal’s determination in AC (Canada). It appears that the generality of cases involving MM (Lebanon) were simply left to await the judgment of the Court of Appeal, by which time there was such a backlog that it took months to clear it.

As to the first stage, the time limit for filing an appellant’s notice in the Court of Appeal is 28 days from the date when the Upper Tribunal’s decision on permission to appeal is given (CPR Practice Direction 52D, paragraph 3.3). It seems to us that to exceed that time limit by 24 days, as in AC (Canada), was at the least a significant breach; and to exceed it by well over 3 months, as in KG (India), was on any view a serious breach. In Hysaj a delay of 42 days in filing an appellant’s notice was considered not to be significant in the sense of having an effect on the proceedings, but that was because of the particular circumstances of the case as explained at para. [51] of the judgment of Moore-Bick LJ, including the fact that for part of the period the parties were awaiting a decision by the first instance judge who in fact then granted permission to appeal. A party who delays by several weeks or months in applying to this court for permission to appeal can generally expect to have the delay treated as significant or serious. Although the court in Hysaj placed weight on the extent to which a delay could be said in the particular circumstances of the case to have affected the progress of the appeal, that may not be a matter capable of ready assessment, whereas a point made by Moore Bick LJ in para. [54] is applicable to every case:

As to the second stage, we do not accept that the matters put forward in the witness statement of Mr McGirr amount to a good reason for the delay. We recognise, of course, the difficulties caused to the Secretary of State by the increase in workload, and the substantial efforts made to deal with those difficulties. The fact remains, however, that the Secretary of State had notice of the increase in workload and could have chosen to increase the staffing of the Specialist Appeals Team and/or to use the services of external counsel to a greater extent than was in fact done. An excess of work will rarely provide a good reason for a solicitor in the private sector to fail to meet a deadline (see, for example, Mitchell at para. [41]). There is no special rule for public authorities, though we do take account of the fact that the Secretary of State does not have the option open to a solicitor in the private sector to turn work away.

But the absence of good reason for the delay goes deeper than that. First, we note that in each of these cases (as also in the case of NH (Yemen)), the Secretary of State put in a reasoned application to the Upper Tribunal, either within the time limit or only just out of time, for permission to appeal to the Court of Appeal. It follows that a decision had already been taken that the relevant determination of the Upper Tribunal should be appealed, and on what grounds. When permission was refused by the Upper Tribunal, we do not understand why the renewal of the application to the Court of Appeal itself should have been problematic.

The true position seems to have been that a deliberate decision was taken to await the judgment of the Court of Appeal in MM (Lebanon) before progressing these cases, subject to an exception for AC (Canada) for the reason already given. Mr Payne submitted that there was good reason for delaying until it became clear from the judgment of the Court of Appeal in MM (Lebanon) that there were valid grounds of appeal, and that the delay should be treated as running in the case of KG (India) only from the date of that judgment – though even on that basis the delay was approximately 2½ months.

We consider that approach to be wrong in principle. If it were open to parties to justify lengthy delays in applying for permission to appeal on the basis that they were waiting to see what emerged from judgments in other cases under appeal, it would be liable seriously to undermine the time-limit in the rules and to create serious uncertainty for litigants. The right course is to file a notice of appeal and to seek appropriate case-management directions from the Court of Appeal, drawing attention to any relevant outstanding appeal. It is for the court to decide how best to manage its caseload; and if the court knows the number of applications said to depend on an outstanding appeal, not only can it manage the applications themselves but it is also able to make a better informed decision about, for example, the degree of expedition that should be given to the outstanding appeal. It may well be that in this particular case the filing of timely permission applications would not have affected the date on which the appeal in MM (Lebanon) was heard, but we have little doubt that it would have led to earlier consideration of the consequences of the judgment in MM (Lebanon) for other cases.

As to the third stage, the consideration of all the circumstances of the case, it is unnecessary to repeat the points already made, save to note that the need to enforce compliance with rules, practice directions and orders (in this case, compliance with the time limit in Practice Direction 52D) is a factor of particular importance and to which particular weight should be given. Two specific additional considerations were relied on by Mr Payne: first, a contention that both proposed appeals had very good prospects of success, and, secondly, the existence of a significant public interest in the appeals being heard.

Considerable caution is required in relation to the merits of the proposed appeals because we were in a very unusual position, having heard over a day’s submissions from Mr Payne on the substantive appeals – and therefore on legal issues affecting the two cases in which an extension of time was required – before turning to the applications for an extension in those cases. We also had a written skeleton argument from the respondent in each case. All this creates a real risk of getting drawn further into the merits of the two cases than is appropriate when considering whether to extend time. We propose to resist that course and to deal with the merits of the two cases very briefly indeed in giving our reasons for refusing an extension of time.

As regards AC (Canada), we accept that the Secretary of State had a strong case that the Upper Tribunal’s determination was flawed by material error of law, but if that had been established on appeal it is probable that the case would have been remitted to the Upper Tribunal (a course to which, as Mr Payne indicated in his skeleton argument, the Secretary of State would not have objected) and the ultimate outcome of a rehearing before that tribunal was uncertain – a factor to which we think it right to attach weight in our overall assessment.

KG (India) differed from all the other cases before us in being a case about LTR rather than entry clearance. Mr Payne accepted that the merits of the appeal were less clear-cut than was submitted in respect of AC (Canada). Here, too, he indicated in his skeleton argument that if the appeal were to succeed the Secretary of State would not object to a remittal to the Upper Tribunal. On our limited consideration of the case we feel unable to conclude that the proposed appeal had strong prospects of success or to form any sensible view about the outcome on a remittal.

The public interest in the appeals being heard is a factor carrying very little weight in the circumstances. The determinations in both cases are unreported tribunal decisions without material precedent value; and, whilst they would have provided helpful illustrations of the issues addressed earlier in this judgment, we have been able to give sufficient general guidance without them, by reference to the substantive appeals before us. Moreover, since the outcome on a remittal would have been uncertain in both cases, it cannot be said that the refusal of an extension of time leaves in place an unlawful grant of entry clearance or leave to remain.

Taking all the circumstances into account, we are satisfied that in each case the balance comes down decisively against the grant of the necessary extension of time.