TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department

These appeals are both concerned with applications for leave to remain made by non-settled migrants who rely on relationships they each established with a British citizen at a time when their immigration status was precarious. Both appellants sought to challenge removal to their home countries by reliance on article 8 ECHR. In the circumstance that the requirements of the Immigration Rules are not met by such an applicant, the Secretary of State will consider granting leave to remain outside the Rules where exceptional circumstances apply which are defined by her as circumstances in which refusal would result in unjustifiably harsh consequences for the individual concerned.

Both appeals were listed to be heard after the recent decision of the Supreme Court in R (on the application of Agyarko) and Anor v Secretary of State for the Home Department [2017] UKSC 11. In Agyarko the Supreme Court made clear that the scheme established by the Rules and the Secretary of State’s Instructions are lawful and compatible with article 8. Accordingly, the Secretary of State is entitled to apply a test of insurmountable obstacles to the relocation of the family within the Rules and a test of exceptional circumstances as described outside the Rules.

TZ is a national of Pakistan born 7 February 1988. He entered the UK on 12 January 2008 as a Tier 4 (General) student with leave to remain until 31 October 2008. This was later extended to 30 November 2012.

In order to support his studies, TZ commenced part-time work in McDonalds in October 2008. There he met his partner, Ms AS, who started work in December 2010. They commenced a relationship in February 2013, and moved in together in September 2013.

Upon completion of his accounting and finance degree at the University of Hertfordshire in June 2011, McDonalds offered TZ a managerial position. He applied for a Post-Study work visa from 23 January 2012 which was granted to expire on 23 January 2014. He then applied for a Tier 2 (General) visa, which was refused on 23 March 2014. The reason given for the refusal was that the certificate of sponsorship supplied by McDonalds contained an inaccurate occupation code and the decision maker was unable to award him any points under ‘sponsorship’. As such he failed to score at least 50 points in the ‘Attributes’ section of Appendix A to the Immigration Rules for Tier 2 (General) applicants.

On appeal to the First-tier Tribunal on 9 October 2014, TZ conceded that the wrong occupation code had been provided and informed the tribunal that he was in the process of submitting a fresh application with the correct code. Notwithstanding that, he sought to challenge the Secretary of State’s decision by reliance upon an article 8 ECHR claim.

TZ gave evidence asserting that his partner would be unable to support herself financially if he were to be removed and said that she would not be accepted into the community in Pakistan were she to join him.

In the decision of the FtT promulgated on 28 October 2014 the judge held that the failure to provide the correct occupation code was fatal to an appeal under the Rules. He dismissed TZ’s article 8 claim ‘within the rules’ by reference to paragraph 276ADE and Appendix FM of the Immigration Rules, concluding that TZ had not established insurmountable obstacles to the continuation of family life outside the UK. It is not at all clear from the FtT’s judgment that the judge properly considered TZ’s article 8 claim outside the rules, but if he did, he concluded without any additional reasoning that the interference with TZ’s article 8 rights was proportionate having regard to the legitimate public aim of maintaining effective immigration control and in consequence he dismissed TZ’s claim.

Permission to appeal to the UT was granted on 24 April 2015. On 9 July 2015 the UT held that the FtT had made errors of law in failing to give reasons to explain why the requirements of paragraph 276ADE and Appendix FM of the Rules were not met and in failing to consider the implications of the decisions in Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 and MA (Pakistan)v Secretary of State for the Home Department [2009] EWCA Civ 953, when considering insurmountable obstacles to family life.

In a Decision and Reasons promulgated on 24 July 2015 the UT concluded that, while the FtT had been in error in not explaining why the terms of Appendix FM and paragraph 276ADE of the Rules were not satisfied, these did not amount to material errors of law. This is because a proper application of the Immigration Rules would have led to the same decision. In short, the UT held that exceptional circumstances would have to exist for the conclusion of an FtT to be any different. The judge could identify no such circumstances. The essence of that decision, although not expressed in this way in the reasons given, is that had a careful examination of the facts been undertaken, permission to appeal to the UT should not have been granted in the first place.

PG is a national of India, born on 10 June 1989. She arrived in the United Kingdom on 19 July 2012 as a visitor with entry clearance to remain until 21 December 2012 and re-entered on 20 September 2013 again as a visitor. On 2 October 2013 she met Mr Nayee, a British national of Indian heritage. They married on 8 November 2013. PG’s visa was due to expire on 31 January 2014, and so she applied for further leave to remain as the spouse of a British national on 28 January 2014. At the time of the UT hearing PG was pregnant and she has since given birth to the couple’s first child.

In a letter dated 30 May 2014 the Secretary of State refused to vary PG’s leave to remain. Her reasons for this were threefold:

On appeal to the FtT PG and her husband gave evidence to the effect that PG is the sole carer of her mother-in-law and has been ever since her marriage. They stated that PG’s mother-in-law suffers from a range of medical complaints which render her unable to do essential household activities or feed herself properly, meaning that she needs someone with her at all times. PG’s husband gave evidence demonstrating his lack of links to India, its language, culture and community and also his commitment to stay in the UK to support his mother who is too unwell to be relocated.

The FtT was satisfied that PG faced insurmountable obstacles to her family life with her husband continuing outside of the United Kingdom for the purposes of paragraph EX.1 (b). Having come to that conclusion the FtT did not need to consider Paragraph 276ADE(1) or article 8 outside of the Rules. The determination and reasons of the FtT to this effect were promulgated on 17 February 2015.

The Secretary of State was granted permission to appeal to the UT on 16 April 2015. That appeal was heard on 28 August 2015 and the UT’s decision was promulgated on 22 September 2015. The UT found that the FtT had materially erred in law in allowing the appeal on the basis that paragraph EX.1 (b) applied, when in reality PG could not satisfy the provisions of the Immigration Rules because of her precarious immigration status. As such she could only rely on an article 8 claim outside the rules.

The UT re-made the decision in favour of the Secretary of State and in doing so placed considerable weight on the fact that PG and her husband were aware of the precarious nature of her immigration status when they decided to marry. The UT also took into account the fact that care packages could be provided to PG’s mother-in-law and that PG’s sister-in-law could take over some of her mother-in-law’s care should PG’s husband wish to join her in India. The UT considered family life in its broadest context including submissions made about the best interests of the couple’s unborn child and likewise private life by reference to the factors identified in section 117B of the Nationality, Immigration and Asylum Act 2002 (fluency in English and the strength of her financial resources). The UT concluded, as it was entitled to do on the evidence, that it was “not obtuse” to expect PG to reapply for entry clearance as a spouse from India.

On 16 November 2015 the UT declined to extend time for permission to appeal and refused the same. Lewison LJ granted PG permission to appeal and an extension of time on the papers on 5 May 2016 on the basis that the Supreme Court was expected to give judgment in Agyarko on the same or related issues.

There are four simple answers to the questions originally identified in these appeals. They were helpfully identified in the submissions of the Secretary of State and nothing that this court has read or heard has materially altered those answers which are as follows:

Despite the clarity of the conclusions in Agyarko, the appellants seek to persuade the court that there remain important issues relating to how the principles in Agyarko should be applied. Before embarking on a short analysis of those issues, I say at the outset that I am wholly unconvinced that any gloss is needed on the principles described by Lord Reed. I shall at the conclusion of this judgment set out an evaluative mechanism that should be adopted by First-tier tribunals that is consistent with the decisions of the Supreme Court, follows existing good practice across jurisdictions and meets the failure to adequately describe the evaluative judgment undertaken in the reasoning in these cases, despite the fact that the ultimate decisions were and are correct.

There are 11 surviving questions which the appellants submit can be identified on the facts of each of these two appeals and which are said to be relevant to the decision making of the First-tier or Upper Tribunals or to how in future the principles in Agyarko are to be applied. Some of those questions are simply not relevant to the facts of either appeal as found by the FtTs or the UT and I decline to give obiter guidance on them given that they are hypotheses, no matter whether those hypotheses are grounded in factual scenarios that were not addressed before the FtT or are based on assertions which were not found as facts.

In particular in relation to TZ, this court is asked what the conclusion of a tribunal should be if the couple’s relationship fell outside GEN.1.2 despite the relationship being genuine and subsisting and what effect does the fact that a partner is affianced have given that E-LTRP.1.12 excludes fiancés who have not entered the UK in that capacity? These are not questions based in the factual context pursued before or found by the FtT in respect of TZ, nor are they live issues in that appeal, save as respects the question of precariousness which I deal with below. If and in so far as issues of fact of that kind might be relevant they will be considered in any requirement of the Rules that has an article 8 component and in the article 8 consideration outside the Rules where article 8(1) is engaged. I also decline to comment on whether there are additional errors of law that can be identified from the FtT’s judgments over and above those identified by the UT as being sufficient to set aside and re-make the decisions.

The structure of decision making in appeals of this kind will usually involve the application being considered under the relevant provisions of the Rules and, if the appellant does not qualify under the Rules, outside the Rules to determine whether removal would amount to a breach of article 8.

The Secretary of State has a constitutional responsibility for the immigration policy which underpins the Immigration Rules which are endorsed by Parliament: they are the competent institutions responsible for determining policy within the national margin of appreciation. Although the courts can review the compatibility of the balance of factors that the Secretary of State strikes in formulating the Rules, courts and tribunals must bear in mind the constitutional responsibility for policy and the fact that the Rules are not and are not intended to be a summary of ECHR case law (see Agyarko at [46], [47] and [48]). Accordingly, it has been held to be lawful for the Secretary of State to set a requirement within the Rules that there be insurmountable obstacles to the continuation of family life in the country of proposed return.

The Secretary of State’s ‘Instructions’ to decision makers recognise that there are circumstances outside the Rules in which it will be necessary to grant leave to remain to avoid a breach of article 8. The Secretary of State’s policy is that such leave should only be granted where exceptional circumstances apply, i.e. circumstances in which refusal would result in unjustifiably harsh consequences for the person concerned. The legality of this policy and the test that is articulated were accepted in Agyarko (see [19] and [48]).

The settled jurisprudence of the ECtHR is that it is likely to be only in an exceptional case that article 8 will necessitate a grant of leave to remain where a non-settled migrant has commenced family life in the UK at a time when his or her immigration status is precarious (see, for example Jeunesse v Netherlands (2016) 60 EHRR 17 at [100] and [114]). That general principle applies to any consideration of the Rules which involves engaging with a requirement or requirements that possess an article 8 element (often wrongly described as an article 8 consideration within the Rules) and to the consideration of article 8 outside the Rules. Where precariousness exists it affects the weight to be attached to family life in the balancing exercise. That is because article 8 does not guarantee a right to choose one’s country of residence. Both the unlawful overstayer and the temporary migrant have no right to remain in the UK simply because they enter into a relationship with a British citizen during their unlawful or temporary stay. The principle was accepted in Agyarko at [49] to [54] leading to a statement of general principle at [57]:

“In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.”

The effect upon the weight to be attached to family life will depend upon what the outcome of immigration control would otherwise be i.e. the weight of the public interest in removal. Agyarko overtly recognised that precariousness includes both those who are in the UK unlawfully and those who are here temporarily (see [51] and [54]). To that extent, the decision of this court to the same effect in Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803, [2016] 1 WLR 4203 is binding.

Section 117B of the Nationality, Immigration and Asylum Act 2002 is also relevant to the weight to be given to private and family life that are established by a person at a time when that person’s immigration status is precarious. In every consideration of any requirement of the Rules that possesses an article 8 element and of article 8 outside of the Rules, if the applicant’s immigration status is precarious, then little weight is to be given to private life or to a relationship formed with a qualifying partner. The same provision also identifies two factors that are to be taken into account in every article 8 consideration: whether the applicant can speak English and whether the applicant is financially independent.

The consideration of article 8 outside the Rules is a proportionality evaluation i.e. a balance of public interest factors. Some factors are heavily weighted. The most obvious example is the public policy in immigration control. The weight depends on the legislative and factual context. Whether someone is in the UK unlawfully or temporarily and the reason for that circumstance will affect the weight to be given to the public interest in his or her removal and the weight to be given to family and/or private life (see the examples given in Agyarko at [51] and [52] which include the distinction between being in the UK unlawfully and temporarily). Decisions such as those in Chikwamba and EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, [2009] AC 1159 describe examples of how the weight or cogency of the public interest is affected. It is accordingly appropriate for the court to give weight when considering the proportionality of interference with article 8 outside of the Rules to factors that have been identified by the Strasbourg court, for example, the effect of protracted delay, the rights of a British partner who has always lived here and whether it can reasonably be expected that s/he will follow the removed person to keep their relationship intact: that is, by way of example, the circumstances identified in EB (Kosovo) or the circumstance described in Chikwamba where the removal of an appellant who is the spouse of a British citizen could be followed by a right of re-entry.

The list of such circumstances is not closed but I decline to comment on a hypothetical case put to this court about the application of the decision in Alim v Russia (2011) ECHR 1453 at [69] i.e. whether the Secretary of State’s policy is lawful if it excludes family life based upon partnerships of less than two years given that in Alim family life was “not confined to marriage-based relationships and may encompass other de facto family ties where the parties are living together”. The hypothetical case does not engage with the relevant factual context that was before the FtT in TZ and the inter-relationship between the principle expressed in Alim and the Rules is accordingly not engaged in that appeal. If facts exist which engage the principles in Alim they will no doubt form part of the article 8 evaluation outside of the Rules having regard to the Secretary of State’s policy on the issues within the Rules, as explained below.

A determination by a tribunal about a decision that is within the Rules may or may not involve the consideration of a requirement that possesses an article 8 element. That is because other aspects of the Rules may not be satisfied so that the appellant concerned cannot come within the Rules and the enquiry into the application of the Rules is foreshortened. That was the position so far as PG was concerned. Although in general terms it is not incumbent on a tribunal to express a concluded view about something that is either not in issue or not determinative within the Rules (unless the hearing is a one stop appeal within the meaning of the Nationality, Immigration and Asylum Act 2002, as amended, when as a matter of law all material issues will be before the tribunal and will necessitate a decision), as explained below where article 8(1) is engaged and the consideration of article 8 outside of the Rules must follow, the tribunal should consider the insurmountable obstacles test within the Rules before considering the exceptional circumstances test outside the Rules.

Where article 8 is in issue within the Rules there will of necessity have to be a conclusion on the question of whether there are insurmountable obstacles to the relocation of the appellant and his or her family. That involves an evaluation or value judgment based upon findings of fact. When a tribunal goes on to consider an article 8 claim outside of the Rules (as it will do where article 8 is engaged, see Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799 at [80]), it will factor into its evaluation of whether there are exceptional circumstances both the findings of fact that have been made and the evaluation of whether or not there are insurmountable obstacles – that being a relevant factor both as a matter of policy and on the facts of the case to the question of exceptional circumstances.

In the circumstance that an FtT does not need to make an evaluation about insurmountable obstacles, the question arises: how does that tribunal or a subsequent tribunal relying on the same facts approach the question of exceptional circumstances outside the Rules? Again, the answer is to be found in Agyarko at [47] and [48]. By reference to Hesham Ali at [44 to 46], [50] and [53], Lord Reed made it clear that in striking a proportionality balance (i.e. when undertaking an article 8 evaluation outside the Rules) a tribunal must take the Secretary of State’s policy into account and attach considerable weight to it ‘at a general level’.

This means that a tribunal undertaking an evaluation of exceptional circumstances outside the Rules must take into account as a factor the strength of the public policy in immigration control as reflected by the Secretary of State’s test within the Rules. The critical issue will generally be whether the strength of the public policy in immigration control in the case before it is outweighed by the strength of the article 8 claim so that there is a positive obligation on the state to permit the applicant to remain in the UK. The framework or approach in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368 at [17] is not to be taken to avoid the need to undertake this critical balance.

That leaves the question of whether the tribunal is required to make a decision on article 8 requirements within the Rules i.e. whether there are insurmountable obstacles, before or in order to make a decision about article 8 outside the Rules. The policy of the Secretary of State as expressed in the Rules is not to be ignored when a decision about article 8 is to be made outside the Rules. An evaluation of the question whether there are insurmountable obstacles is a relevant factor because considerable weight is to be placed on the Secretary of State’s policy as reflected in the Rules of the circumstances in which a foreign national partner should be granted leave to remain. Accordingly, the tribunal should undertake an evaluation of the insurmountable obstacles test within the Rules in order to inform an evaluation outside the Rules because that formulates the strength of the public policy in immigration control ‘in the case before it’, which is what the Supreme Court in Hesham Ali (at [50]) held was to be taken into account. That has the benefit that where a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person’s article 8 appeal, provided their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed.

I suggested at [19] that there exists a structure for judgments in the FtT where article 8 is engaged. That was referred to by Lord Thomas in Hesham Ali at [82 to 84] and recommended by him. I strongly endorse his recommendation. Although there is no obligation in law for a tribunal to structure its decision-making in any particular way and it is not an error of law to fail to do so, the use of a structure in the judgments in these appeals would almost certainly have avoided the appeals, given that the ultimate conclusion of the tribunals was correct. To paraphrase Lord Thomas: after the tribunal has found the facts, the tribunal sets out those factors that weigh in favour of immigration control – ‘the cons’ – against those factors that weigh in favour of family and private life – ‘the pros’ in the form of a balance sheet which it then uses to set out a reasoned conclusion within the framework of the test(s) being applied within or outside the Rules. It goes without saying that the factors are not equally weighted and that the tribunal must in its reasoning articulate the weight being attached to each factor.

Having set out the principles that can be discerned from the decision in Agyarko, it is possible to apply those principles to each of the appeals before this court in relatively short form. I shall deal with each appeal in turn.

TZ’s appeal cannot succeed under the Rules. His Tier 2 application contained the wrong occupation code which was fatal. His private life did not involve 20 years continuous residence in the UK so that he did not qualify to remain under paragraph 276ADE of the Rules. His family life, i.e. his relationship with his girlfriend, had not been a cohabitation subsisting for two years before the application and so he did not meet the definition of a ‘partner’ under Appendix FM to the Rules. It is not necessary to dwell on the detail to any greater extent save that it ought to be said that the findings of fact that were made are unassailable. To the extent that complaint is made, TZ cannot rely on a case that was either not pursued or is not relevant on the facts as determined by the FtT.

Although the FtT identified the right article 8 test within the Rules and identified the relevance of the question of precariousness, it cannot be said that any account was taken of the fact that TZ’s relationship began at a time when his immigration status was precarious. It is also difficult to isolate out the article 8 decision made by the FtT within the Rules from that made outside the Rules. I have sympathy with the judge in the FtT because his determination within the Rules did not need to consider article 8. TZ had not pursued an article 8 case within the Rules and his case was hopeless on every other issue. It may be that as a consequence, the judge was attempting to consider article 8 outside the Rules and to have regard to the Secretary of State’s policy within the Rules. He is not to be criticised for undertaking an evaluation within the Rules as a means of identifying and taking account of the Secretary of State’s policy in a decision that needed to focus on article 8 outside the Rules. Whatever the judge’s intention, he did not identify the test outside the Rules or obviously apply it and accordingly it appears that the judge mistakenly only had regard to insurmountable obstacles or elided the two tests together.

The UT was correct to conclude that the FtT had failed to identify why the Rules could not be satisfied and was correct to question whether a balancing exercise which had regard to the exceptional circumstances test had been conducted in an evaluation of article 8 outside the Rules. The UT was right to follow AJ (Angola) v Secretary of State for the Home Department [2014] EWCA Civ 1636 at [49] in dismissing the appeal against the decision within the Rules on the basis that any rational tribunal would have come to the same conclusion by applying the Rules to the facts of the case i.e. the error of law was immaterial because no other conclusion was available to the FtT. Having identified the need for an article 8 evaluation outside the Rules the UT was right to undertake it and conclude that there was nothing including the potential relevance of alleged circumstances analogous to EB (Kosovo) which demonstrated exceptional circumstances so compelling that they outweighed the public interest in immigration control. The facts of the case are not analogous to the circumstance in Chikwamba because the outcome of a subsequent entry clearance application by TZ is not certain: both the nature and extent of his relationship with AS and his financial situation at that time will be relevant.

On the facts as found and having regard to the test to be applied, there was no obligation on the state to permit TZ to remain in the UK. The UT was right to dismiss the appeal and accordingly, and for the reasons I have explained, I would dismiss the appeal against the decision of the UT in respect of TZ.

The FtT allowed PG’s appeal on the basis that she qualified for leave to remain under paragraph EX.1(b). That was a clear error of law because PG was a visitor. PG did not meet the requirements of E-LTRP.2.1. Her status was precarious. While in the UK as a visitor, with a visa of less than five months, she began a relationship with the man who became her husband only days after she arrived and they were married one month later. The only decision that was relevant is accordingly an article 8 consideration outside the Rules which was not undertaken by the FtT.

The UT was right to set aside the FtT’s decision and to re-make it. There was no part of the FtT’s decision that survived the error of law that the judge made. The findings of fact made by the UT are unassailable. PG’s immigration status was precarious although she was not in the UK unlawfully. Section 117B of the 2002 Act applied. The UT considered the Secretary of State’s policy within the Rules concluding that there were no insurmountable obstacles to the family’s relocation to India and that that is a factor to be put into the balance in deciding whether there were exceptional circumstances outside the Rules requiring the grant of leave to remain. The FtT’s contrary conclusion on insurmountable obstacles fell with the error of law that it made. There is no arguable basis upon which it could be sustained. The UT concluded that there was no very strong or compelling claim that outweighed the public interest in immigration control and accordingly that there were no exceptional circumstances. The UT decided on sufficient grounds that it was not obtuse for PG to make a further application for re-entry in all the circumstances of the case so that this was not a Chikwamba case.

The findings which were weighed and balanced included PG’s marriage while her status was precarious (and the expected birth of their child), her husband’s British citizenship, the fact that the families are from different parts of India and would suffer some language issues and critically, the fact that PG’s husband may not relocate with her. Given the weight to be accorded to family and private life in a precarious status case such as this (i.e. this was a fait accompli), these were neither insurmountable obstacles nor exceptional circumstances and accordingly the state was not under a positive obligation to permit PG to remain in the UK.

The UT was right to dismiss PG’s appeal and for the reasons I have given I would also dismiss this appeal.

I agree.

I agree also.