Minto, R (On the Application Of) v Secretary of State for the Home Department

MR JUSTICE MOYLAN: This is a renewed oral application for permission to appeal from the order of 2 April 2014 of Judge Freeman sitting in the Upper Tribunal (Immigration and Asylum Chamber) by which he refused the proposed Appellant, the Applicant, permission to apply for judicial review of a decision made by the Secretary of State for the Home Department in an immigration matter. The decision under challenge is the Secretary of State's refusal, by letter dated 7 August 2013, to grant the Applicant leave to remain.

The proposed Appellant is represented by Mr Singer, who has provided written submissions and has made oral submissions today.

Mr Singer submits that the appeal is properly arguable. The grounds on which he submits that there were public law errors which warrant an appeal are as follows. First, that there was no reasoning of what “insurmountable obstacles” means. Secondly, that no proper balancing exercise was carried out in respect of the application outside the rules. Thirdly, that there was no assessment of the reasonableness of the proposed relocation of the Applicant's wife to Jamaica.

He submits that, had the evidence and the overall circumstances been properly analysed and a proper balancing exercise been conducted, the Secretary of State would have or should have concluded that the balance came down in favour of granting leave. He further submits that there is a flaw in the Upper Tribunal's decision because it simply focuses on the mental health problems of the Applicant’s wife. It is argued that there are compelling facts in this case which have not been properly considered either by the Secretary of State or by the Upper Tribunal Judge and which, if properly considered, would establish a properly founded claim either within the rules and/or outside the rules under Article 8.

The background facts are set out in Judge Freeman's decision. The Applicant is a Jamaican national who was aged 43 at the date of the decision. He came to the United Kingdom as a visitor in 2000 when he was aged approximately 29. He overstayed and has remained living in the United Kingdom. In 2005 he married a British citizen and they have been living together since then.

The relevant application for leave to remain, which followed other applications, was made on 20 June 2013. It applied for leave as the partner of a person present and settled in the United Kingdom. This is a reference to paragraph EX.1(b) of Appendix FM to the Immigration Rules which applies if the Applicant has a genuine and subsisting relationship with a partner who is in the United Kingdom and is a British citizen settled in the United Kingdom and there are insurmountable obstacles to family life with that partner continuing outside the United Kingdom. The insurmountable obstacle referred to in the application is the Applicant’s wife's mental health condition.

In addition, in an accompanying letter dated 20 June 2013, from the Applicant's solicitors, the application is also advanced for leave outside the rules. This refers to both Article 3 and Article 8 of the European Convention on Human Rights. The contents of the letter range widely and include the Applicant's wife's mental health condition, the Applicant's situation in the United Kingdom, the situation he would face in Jamaica and his family's circumstances.

The application for leave to remain was refused, as I have said, by letter dated 7 August 2013 on the basis (a) that there were no insurmountable obstacles and (b) that the case did not meet the threshold for granting leave outside the rules.

The application for permission to apply for judicial review contains nine grounds including that the Secretary of State's decision was not in accordance with the law and/or the Immigration Rules, that there are insurmountable obstacles to family life with the Applicant’s wife continuing outside the United Kingdom and that the Applicant's case based on the European Convention had been wrongly rejected.

The application for permission to apply for judicial review was refused on paper. It was refused on the basis that the Secretary of State was entitled to reject the application within the rules and was entitled to conclude that there were no circumstances justifying the grant of leave and that there was no arguable case of a prospective breach of Articles 3 and 8.

The application for permission was renewed on paper. The written notice focuses solely on the asserted presence of insurmountable obstacles based on the Applicant's wife's mental health condition. Given the focus of this notice, in my view, it is not surprising that the Upper Tribunal Judge's judgment also focuses on this issue.

He addresses the evidence relating to the wife's mental health condition in some detail. This is because the Secretary of State had not or did not appear to have considered the effect of this evidence on the claim based on the existence of insurmountable obstacles. Judge Freeman decided that the Applicant's case as to the existence of insurmountable obstacles was not reasonably arguable. Given that the claim based on the European Convention raised the same essential issues, he refused the application for permission to apply for judicial review.

In his summary of reasons, Judge Freeman repeats what the Applicant needed to show. He explains that, in his judgment, the evidence did not demonstrate an arguable case either as to insurmountable obstacles or under Article 8 because there was no evidence addressing the care and medication available to the Applicant's wife in Jamaica and that her symptoms were, in themselves, not so severe as to establish such a case.

The application for permission to appeal this decision was rejected on paper by Sales LJ. In his reasons for refusing permission, he said that Judge Freeman had conducted a fair and balanced assessment of the position in relation to the mental health of the Applicant's wife. Further, given the Applicant's status as an unlawful overstayer, exceptional or compelling circumstances would need to be shown to support a claim outside the rules. He refers to the case of Agyarko .

Today Mr Singer has sought to challenge the reasoning of Sales LJ and has referred me to the case of SS (Congo ) in which it was said:

"… 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 leave to remain outside the new Rules."

In my judgment, notwithstanding the able submissions of Mr Singer, this appeal is not properly arguable. For the avoidance of doubt, there is also no other compelling reason for the grant of permission to appeal.

Broadly, I agree with the reasons given by Sales LJ. It is clear that the primary evidential foundation for the application has been, throughout, the Applicant's wife's mental health. This was, no doubt, because it was recognised that the other matters raised would not be likely to establish insurmountable obstacles or either exceptional or compelling circumstances.

Judge Freeman, in my judgment, was right to focus on that aspect of the case and he dealt with it carefully. In paragraph 5 of his reasons he expresses the view that this is not a case of such severe symptoms that they inevitably raise insurmountable obstacles to family life continuing outside the United Kingdom. This is after he has set out details of the medical history. He also identifies the absence of evidence as to the care and medication available in Jamaica.

In the circumstances of this case, I see no real prospect of the Court of Appeal being persuaded that the Upper Tribunal Judge's assessment of the merits of the challenge to the decision either of the application within the rules and/or of that made outside the rules was wrong. It is well-established that, where family life is created in the knowledge that the immigration status of one of the partners is precarious, it is only exceptionally that the removal of the non-national family member will be a breach of Article 8. In my view, it is not reasonably arguable that such circumstances should have been found to be established in this case.

I refuse the application for permission to appeal.